Delhi District Court
State vs . Mahesh Bansal Etc. on 23 July, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE-02 (NE), KARKARDOOMA COURTS, DELHI.
CNR No. DLNE01-000324-2012
SC No.44813/2015
State Vs. Mahesh Bansal etc.
FIR No. 373/2011
PS : Shahdara
State
Versus
1. Mahesh Bansal
S/o Sh. Jagan Nath Bansal
R/o H. No. 1/7483, Gali No. 14,
East Gorakh Park, Shahrada, Delhi.
2. Bimla Bansal
W/o Sh. Mahesh Bansal
R/o H. No. 1/7483, Gali No. 14,
East Gorakh Park, Shahrada, Delhi.
3. Komal
D/o Sh. Mahesh Bansal
R/o H. No. 1/7483, Gali No. 14,
East Gorakh Park, Shahrada, Delhi.
4. Gaurav Bansal
S/o Sh. Mahesh Bansal
R/o H. No. 1/7483, Gali No. 14,
East Gorakh Park, Shahrada, Delhi.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 1/60
5. Sourav Bansal
S/o Sh. Mahesh Bansal
R/o H. No. 1/7483, Gali No. 14,
East Gorakh Park, Shahrada, Delhi.
Date of Institution / Committal : 02.04.2012
Date of Arguments : 18.07.2022
Date of Pronouncement : 23.07.2022
JUDGMENT:
1. Prosecution case: It is case of the prosecution that on 07.12.2011, a DD no. 38B was received by PS Shahdara through PCR regarding the incident of bursting of Gas-cylinder in which a lady had burnt. DD entry was assigned to SI Jai Parkash who alongwith Ct. Ajay visited House No. 1/7483, Gali No. 14, East Gorakh Park, Shahdrara, Delhi, but injured had already been removed to GTB Hospital. SI observed spreading of water there and room was filled with the smell of Kerosene oil. In room, some pieces of bangles, burnt clothes, match box, one red colour tabiz smeared with kerosene oil were lying. SI Jai Parkash deputed Ct. Ajay to protect scene of crime and went to GTB Hospital where he collected MLC of injured Neha @ Nimisha Bansal. Doctor declared her fit for statement and SI recorded her statement that she got married with Gaurav Bansal about one year back, but after marriage, her mother-in-law Bimla Bansal and sister-in-law Komal used to taunt and harass by calling her villager. On that day, some altercation had FIR No. 373/2011 State Vs. Mahesh Bansal etc. 2/60 taken place between them and she got fed up and poured kerosene oil and set herself on fire. Parents of injured were informed and Crime team and photographer inspected the spot and seized exhibits. SDM concerned recorded statement of the mother of deceased namely Smt. Nirmal and registered this FIR u/s 304B/498A/34 IPC. After investigation, all the accused charge-sheeted u/s 304B/498A/34 IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Charges u/s 498A/304B/302/306/34 IPC were framed against all accused vide order dated 26.05.2012 and they pleaded not guilty and claimed trial.
4. To prove the charges, prosecution has examined PW1 SI Mukesh Kumar Jain, PW2 W/Ct. Shalu, PW3 W/Ct. Leelawati, PW4 Smt. Nirmal, PW5 Pradeep Kumar, PW6 Sanjeev Chauhan, PW7 Chandra Kanta, PW8 Saroj Balyan, PW9 Dr. Devender Kumar, PW10 ASI Sahab Singh, PW11 Raju Kumar Jindal, PW12 Smt. Vibha Sharma, PW13 ASI Sanjay Singh, PW14 Retired Jai Prakash, PW15 Dr. Arvind Kumar, PW16 Sh. Rajeev Singh the then SDM, PW17 Inspector Subhash. No other PW has been examined by prosecution and closed PE.
5. After PE, entire incriminating evidence was explained to all the accused under Section 313 CrPC and their statements were recorded.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 3/60
6. To prove the case, prosecution has examined many witnesses including family members of the deceased. The evidence led by the prosecution is as under: -
6.1. PW1 SI Mukesh Kumar Jain, Draftsman who visited the spot of incident on 19.01.2010 and prepared scaled site plan Ex. PW1/A. 6.2. PW2 Ct. Shalu joined investigation with IO on 13.12.2011. She witnessed arrest of accused Bimla Bansal on the basis of secret information vide arrest and personal search memos Ex.PW2/A and Ex. PW2/B. 6.3. PW3 W/Ct. Leelawati joined investigation with IO on 12.01.2012 and witnessed arrest of accused Komal vide arrest and personal search memos Ex.PW3/A and Ex. PW3/B. 6.4. PW4 Smt. Nirmal is the mother of deceased Neha @ Nimisha and has deposed that marriage of her daughter Neha was solemnized with accused Gaurav Bansal on 01.12.2010 according to Hindu Rites and Customs. They had given cash amount of Rs. 9 Lacs to accused in marriage secretly on the demand of accused Mahesh Bansal. An amount of Rs. 3.5 Lacs was given on 01.12.2010 i.e. on the day of marriage, Rs. 2.28 Lacs on 17.10.2010, on the occasion of engagement, whereas Rs. 1.37 Lacs were spent on jewellary and Rs. 80,000/- on clothes. She has further deposed that everything was okay for some time after marriage, but accused persons namely Mahesh Bansal, Bimla, Gaurav, Sourav and Komal started harassing her for bringing more dowry and she used to tell her about it. Accused used to demand cash and FIR No. 373/2011 State Vs. Mahesh Bansal etc. 4/60 even Rs. 1.70 Lacs were given in the months of June, July, August, September, October i.e. 5 times. She has further deposed that deceased visited her parental home in November and accused Gaurav Bansal came to pick her and demanded a Santro car, but they could not fulfill this demand, however they assured to arrange a car in EMI being a big amount. However, on 07.12.2011, accused set her daughter on fire and also did not inform her.
On 07.12.2011 at about 12.15 / 12.30 pm, neighbours of accused informed about this incident and she along with family members immediately contacted to Gaurav, but he did not respond, due to they rushed to GTB Hospital, where only Gaurav met and other family members were not there. Deceased was in serious condition and expired at about 3.30 am. Accused Gaurav fled away from hospital after her death. On 08.12.2011, postmortem was conducted on the dead body of the deceased and thereafter, she was cremated. On 10.12.2011, she along with other family members visited matrimonial house of the deceased and realized that she was murdered by accused persons as she was 100% brunt, but her red colour thread which she used to wear around neck was safe.
6.4.1. Ld. Addl. PP for State has cross examined this witness and she has admitted that the SDM recorded her statement Ex.PW4/A, but it was not recorded completely. It is admitted that on 28.11.2011, her daughter visited her parental house but no cash was given, however it is denied that they had given cash amount for six times after marriage.
6.4.2. During cross examination, she has admitted that her husband was working as Turner with Dhampur Sugar Mill and was drawing a salary of Rs.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 5/60 11,000-12,000 per month, however there was no other source of earing of family except her earning by stitching of clothes by which she used to earn Rs. 8,000/- pm. She has admitted that she was maintaining a joint account with her husband with Punjab National Bank, Dhampur Sugar Mill and was saving some amount after spending of about Rs. 6000-7000/- pm. She has further admitted that her son was also residing with them and was not earning. They had bank balance of about Rs. 5-6 lacs at the time of marriage, but it is denied that they had bank balance not more than Rs. 1 Lac at the time of this marriage. She has admitted that she has no documents to show that they had gifted Rs. 9 Lacs in marriage or Rs. 3.5 Lacs or Rs. 2.8 Lacs were given in cash to accused. She has further admitted that she has receipt of Rs. 1.37 Lacs for purchasing jewellary, but has no documents of Rs. 80,000/- which was spent on clothes. She met her daughter lastly on 28.11.2011 when she visited her house and met about 6-7 times after marriage upto 28.11.2011, but no specific cruelty was reported by her against specific accused. She has further admitted that they never got deceased medically examined at any point of time and also did not lodge any police complaint regarding her harassment, torture and dowry demands till her death, as they did not want to disturb her family life. They also did not inform the middleman about such harassment and torture. She has no documentary evidence or receipts to prove that Rs. 1,70,000/- were given in cash five times between the months of June to October to accused Gaurav. It is further admitted that on the day before incident, she talked to the deceased on telephone and she was okay. It is further admitted that deceased was taken to Mahendi Pur Balaji, but it is denied that she was under the influence of evil spirit. She has admitted that she had not disclosed to SDM that cash was FIR No. 373/2011 State Vs. Mahesh Bansal etc. 6/60 given secretly to accused or that her daughter used to tell her on telephone about her harassment by accused persons or that they used to advise her to adjust with her in-laws. She has produced original receipts of jewellary Ex. PW4/D1 and Ex. PW4/D2, photocopies of receipts of clothes are Mark A to Mark F. 6.5. PW5 Pardeep Kumar is father of deceased and has deposed that after about 3-4 months of marriage, accused Gaurav Bansal started demanding cash which they used to pay him. On 03.11.2011, his daughter visited his house to appear in E.T. examination and on 27.11.2011, Gaurav also visited to pick her and on 28.11.2011, when he was leaving to his home, he demanded a Santro car, but they were not in position to fulfill this demand, so refused. However, he applied for GPF withdrawal of Rs. 1 Lac, but on 17.12.2011, he came to know that his daughter had burnt and her neigbhours informed him about this incident. Deceased was burnt 98 % and expired on next day at about 3.30 - 340 am. Postmortem was conducted on her dead body and his statement Ex. PW5/A was also recorded. He identified her dead body vide statement Ex.PW5/B and thereafter, she was cremated.
6.5.1. During cross examination by Ld. Addl. PP for State, he has admitted that deceased used to inform through telephone about her beatings by in laws.
6.5.2. During cross examination, he has admitted that his salary was about 11,000/- pm at the time of marriage of his daughter, but his wife also used to earn Rs.8000-10000/- per month from her stitching work. He was maintaining a joint bank account with his wife and used to save some FIR No. 373/2011 State Vs. Mahesh Bansal etc. 7/60 amount, but he was not aware as to what amount was lying in joint account on 01.12.2010, whether it was Rs. 1000/-, Rs. 2000/- or Rs. 5,000/-. However, on the day of engagement of his daughter, he had Rs. 1 Lac in his account. He withdrew Rs. 2 Lacs about one year prior to the marriage for purchasing of clothes. He has admitted that he did not purchase any fresh jewellery for marriage and jewellery got prepared from old gold ornaments through Goldsmith, however he was not aware as to what ornaments got prepared. One diamond ring was purchased from Dhampur in the name of his wife. He has admitted that her daughter called him two days prior to this incident and was quite okay, but she had fever and her fever was okay.
6.6. PW6 Sanjeev Chauhan is the neighbour of accused / deceased and has deposed that on 07.12.2011 at about 11.30 am, he was present in his office when saw that 15-20 public persons were present in street. He came to know that wife of Gaurav Bansal had burnt and witnessed that one lady was lying in burned condition and her Saas and Nanad were standing nearby and crying. He alongwith Mahesh Bansal and Saraubh removed her to GTB hospital by his TATA Safari car and on the way to hospital, Mahesh Bansal asked her 'beta yeh tumne kaya kiya, agar tumhe koi parshani toh hume batana tha, hume kahin muh dikhane layak nahi chhodha'. Similar words were repeated by Bimla Bansal and deceased Neha replied 'yeh sab tumne hi toh kiya hai', on it, Bimla Devi got annoyed and stated 'Kutiya yeh sab maine kiya hai, deceased replied 'han kutiya yeh tune hi toh kiya hai. Deceased was hospitalized in GTB Hospital.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 8/60 6.6.1. During cross examination, he has admitted that he was not aware about those 15-20 public persons who were present in the street at that time. He was also not aware about complete number of his TATA Safari Car by which deceased was removed to hospital. He has denied that relations of his mother and family of accused were not cordial or that any altercation had taken place between them on the issue of parking or throwing garbage. He has denied that no conversation has taken place between Mahesh Bansal, Bimla and deceased or that deceased was removed to hospital by Auto Rickshaw.
6.7. PW7 Smt. Chandra Kanta is neighbor and has deposed that on 07.12.2011 at about 11.30 am, she was sitting outside of her house and heard some sound of falling utensils in the house of Bimla Bansal. She rushed there and witnessed that Neha was lying in burnt condition, whereas Bimla and Komal were pouring water on her. In the meanwhile, locality persons also reached there and someone put blanket and quilt on deceased and her son Sanjeev Chauhan removed her to GTB Hospital with Saurabh and Mahesh Bansal.
6.7.1. During cross examination, she has corroborated that her son Sanjeev Chauhan and his driver Rinku were present in office, no lady of neighborhood was present there when she reached the house of accused. She came to know about the parents of deceased after her death only, as they visited her once.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 9/60 6.8. PW8 Smt. Saroj Balyan has also corroborated that on 07.12.2011 at about 11.30 am, she came to know that some peoples were saying 'Bahu jal gayi-bahu jal gayi' and saw inside the house of accused that deceased was lying in burnet condition on floor near the gate and was covered with blanket. She raised alarm to remove the deceased to hospital and accused Mahesh Bansal, who is also known as Raju, removed her to hospital.
6.9. PW9 Dr. Devender Kumar has proved MLC of deceased Ex. PW9/A, which was prepared by Dr. Anupam Priyadarshi, but it not prepared in his presence.
6.10. PW10 ASI Sahab Singh witnessed the arrest of accused Bimla Bansal in the presence of PW2 W/Ct. Shalu. On 28.12.2011, he witnessed the arrest of accused Mahesh, Gaurav and Saurav on secret information vide arrest papers Ex.PW10/A to Ex. PW10/C1.
6.11. PW11 Raju Kumar Jindal is the uncle of deceased Neha and has deposed that marriage of deceased was solemnized with accused Gaurav Bansal on 01.12.2010 and it was a normal marriage. In the marriage, they had given cash of Rs. 6 Lacs, Rs. 1 Lac for jewellary and Rs. 75,000/- for clothes and for petty expenses. After 5-6 months of marriage, accused started harassing the deceased and used to demand motorcycle and cash. They used to torture deceased physically and mentally and she disclosed about her harassment through mobile, but he tried to make her understand and also talked to her parents, but they asked him to tackle situation themselves and advised him not to interfere in that matter. One month prior to this incident, FIR No. 373/2011 State Vs. Mahesh Bansal etc. 10/60 deceased Neha was beaten up by her in-laws and about 4-5 days prior to the incident, she visited her parental house and accused Mahesh Bansal took her back to her matrimonial house. On 07.12.2011, he received information from his brother about the hospitalization of deceased and deceased stated to his wife, they should not forgive her in-laws for their misdeeds, on the next day, she expired. He handed over three CDs, marriage card and four marriage photographs to police which were seized vide seizure memo Ex.PW11/A. 6.11.1. During cross examination, he has admitted that his wife is not a witness in this case. He has corroborated that the father of deceased was drawing a salary of about Rs. 10,000/- per month, whereas her mother was earning by tailoring work. He has no documentary evidence about cash amount spent in marriage by family. He has admitted that demand of motorcycle and cash was made, but he did not disclose to police about the torture of deceased by her in-laws. He also did not disclose to police that deceased Neha was beaten up by her in-laws or she visited her parental home about 4-5 days prior to this incident or that her father-in-law Mahesh Bansal visited her parental home to bring her back. He has further admitted that he did not remember date, month and year when his niece made call to inform him about her harassments, however he did not make any police complaint about such ill treatment by accused.
6.12. PW12 Smt. Vibha Sharma has deposed that on 07.12.2011 at about 11.00 am, she heard commotion and someone informed about this incident. She went to the house of accused Mahesh Bansal and came to know that Neha was lying in burnt condition in gallery and the persons who were FIR No. 373/2011 State Vs. Mahesh Bansal etc. 11/60 saying to cover her body. Accused Bimla (mother-in-law) was carrying a blanket and she took that blanket and covered deceased Neha. Neha was trying to speak and the persons present there were saying that stated that 'Mujhe inlog ne jalya'. The ladies namely Vimla, Saraubh and Komal were also present. Deceased was removed to hospital by Sanjay Chauhan.
6.12.1. During cross examination, she has admitted that it is not recorded in her police statement Ex. PW12/DA that deceased stated 'Mujhu inlog Ne jalya'.
6.13. PW13 ASI Sanjay Singh was working as MHC(M) and has proved the entries made in MHC(M) register. On 07.12.2011, IO deposited four sealed parcels vide entry Ex.PW13/A. On 08.12.2011, one envelope was submitted vide entry Ex.PW13/B. Again on 16.01.2012, he sent five sealed parcels to FSL through Ct. Sahab Singh against Road Certificate Ex.PW13/D and he returned AD Ex.PW13/E. He received sealed envelope containing FSL report Vide entry Ex. PW13/F. 6.14. PW14 Retired SI Jai Parkash was assigned DD No.38B which is Ex.PW14/A and he along-with Ct. Ajay visited the spot of incident, but nobody was present inside house and doors were lying opened. He noticed that water was spread on floor and smell of kerosene oil was emanating, broken bangles were also lying on the floor and one cane containing some quantity of kerosene oil, one tabiz of red colour, brunt clothes and one match box were also lying there. He deputed Ct. Ajay to protect the scene of crime and went to GTB Hospital where he collected MLC of deceased and also FIR No. 373/2011 State Vs. Mahesh Bansal etc. 12/60 recorded her statement which is Ex.PW14/B. SHO and SDM also reached there, whereas crime team inspected the spot and SDM recorded the statement of deceased. The articles were lying there which were seized vide seizure memo Ex.PW14/C. On 08.12.2011, deceased expired and information was received vide DD No.5A which is Ex.PW14/D. He immediately went to hospital and parents were also informed who identified the dead body vide statements Ex.PW4/B and Ex.PW5/B. Postmortem was got conducted on the dead body. After postmortem, he seized scalp hair of deceased vide seizure memo Ex.PW14/E. SDM concerned recorded statement of both parents and handed him over their statements on which basis he prepared rukka Ex PW14/F. He handed over rukka to Duty Officer, who got recorded FIR and assigned the investigation to Inspector Subhash Chand. On next day i.e. on 09.12.2011, he along-with IO visited the spot of incident where IO prepared site plan. He has identified the case property as Ex.P1 to Ex.P4.
6.14.1. During cross examination, he has admitted that he recorded the statement of Neha @ Nimisha in hospital and in the presence of SHO and doctor, but it is not mentioned in the statement. It is further admitted that statement of deceased Ex.PW14/B got mentioned "right foot impression", though he has deposed during his examination-in-chief that thumb impression of deceased was put. He did not remember whether it was thumb or foot impression. However, he obtained thumb impression of the deceased, but did not mention this fact in case diary. He has further deposed that he requested to doctor present on duty to attest the statement of deceased, but he refused, however he did not request to SHO to be a witness to that statement. He did not issue any notice to doctor on his refusal to join investigation. He FIR No. 373/2011 State Vs. Mahesh Bansal etc. 13/60 also did not record any CD regarding it during investigation as case was assigned to another IO. He did not maintain any case diary during the period from 07.12.2011 till 08.12.2011 and also did not remember the time when recorded the statement of deceased. Even no time is mentioned on her statement, but she did not inform that deceased was under the influence of evil spirit.
6.15. PW15 Dr. Arvind Kumar has proved the postmortem report Ex. PW15/A which was prepared by Dr. Ashok Najan with whom he had worked.
6.16. PW16 Rajeev Singh, the then SDM has proved that he recorded the statement of deceased Neha which is Ex.PW16/A. He obtained her left and right toe impressions on statement. He also visited the spot of incident. He made his endorsement on the statement of deceased Ex.PW16/A to take action. On next day, he recorded the statements of parents of deceased and completed inquest proceedings in GTB hospital vide documents Ex.PW16/B and Ex.PW16/C and released the dead body after postmortem against endorsement ExPW16/C. 6.16.1. During cross examination, he has admitted that he neither made any memorandum on the statement of Neha nor enquired her about language/s she could have spoken / understood / written, but her statement Ex.PW16/A was recorded in his handwriting. He did not make any inquiry from injured about her family members and she also did not tell that she was under the influence of any ill spirit and committed suicide due to this reason. The hospital staff was present in room when he recorded statement of injured, FIR No. 373/2011 State Vs. Mahesh Bansal etc. 14/60 whereas some police officials were present outside. He did not remember as to whether fitness certificate was obtained from the doctor in writing or not, but no fitness certificate was taken by him in writing. He did not remember as to whether he obtained signatures of any family members on documents, but time is not mentioned when statement of Neha Ex.PW16/A was recorded, however police did not record the statement of deceased Neha in his presence. No separate record of inquest proceedings or statement of injured was kept by him. He himself handed over the statement of the parents of deceased Neha to SHO.
6.17. PW17 Inspector Subhash was IO and has deposed that he was assigned investigation of this case. On 09.12.2011, he visited the spot of incident and prepared site plan Ex. PW17/A. He arrested accused Bimla Bansal in the presence of W/Ct. Shalu and thereafter, on 28.12.2011, accused Mahesh Bansal, Gaurav and Saurabh were arrested from their house. On 08.01.2012, he collected PM report from GTB Hospital and on 09.11.2012, he got inspected the spot through Draftsman, SI Mukesh who prepared the site plan. He also collected marriage card of deceased which is Ex.PW17/B and three CDs Ex. PW17/C and four photographs Ex.PW17/D1 to Ex. PW17/D4 were seized from the uncle of deceased namely Raju Jindal vide seizure memo Ex.PW11/A. He arrested accused Komal in the presence of W/Ct. Leela. He sent exhibits to FSL through Ct. Sahab and thereafter also collected FSL report Ex.PW17/E and filed before concerned court. Computerized copy of FIR is Ex. PW17/F. FIR No. 373/2011 State Vs. Mahesh Bansal etc. 15/60 6.17.1. During cross examination, he has admitted that draftsman did not hand over rough notes and measurement to him.
8. I have heard the arguments and perused the record. This case is mainly based upon two dying declarations of the deceased Neha @ Nimisha, due to it is necessary to adjudicate the authenticity of both dying declarations made by deceased. Dying declarations of deceased Neha @ Nimisha have been proved by SI Jai Prakash as Ex.PW14/B and PW16 SDM Rajeev Singh as Ex.PW16/A. However, Ld. Counsel for the accused has argued that dying declarations recorded by SI or SDM concerned were recorded without obtaining any medical fitness certificate of deceased from doctor due to such dying declarations are liable to be discarded. It is further submitted that the deceased was burnt upto 95% - 98% and in such condition, she was not in fit medical condition to make dying declarations and the absence of any medical fitness certificate, it may not be ruled out that IO manipulated the dying declaration. On the other hand, Ld. APP for State has argued that there is no prescribed format of recording of dying declaration and dying declaration also may be oral, due to it cannot be said that dying declarations recorded by the police officer as well as SDM concerned, which are by and large identical, should not be discarded merely because police officer did not obtain the fitness certificate of the doctor, whereas he has already explained that doctor on duty refused to attest the dying declaration. It is further argued that dying declarations has been duly proved by PW14 and PW16 beyond doubt and the same may be relied upon.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 16/60
9. However, before going through the admissibility of dying declarations of victim Neha @ Nimisha, it is necessary to consider the legal proposition regarding dying declarations. Section 32 of the Evidence Act deals with dying declaration as under:
"Section-32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
(2) *****************
(3) *****************
(4) *****************
(5) *****************
(6) *****************
(7) *****************
(8) *****************
10. This section 32 (1) of Evidence Act came into interpretation before the Hon'ble Apex Court in case titled Banarsi Dass v. State of Haryana, (2014) 15 SCC 485 as under:
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 17/60
17. A bare analysis of the provision, would show that a statement by a person made before his death to be relevant, the following ingredients are to be satisfied:
(i) The statement is made by a person who is conscious and believes or apprehends that death is imminent.
(ii) The statement must pertain to what the person believes to be the cause or circumstances of death.
(iii) What is recorded must be the statement made by the person concerned, since it is an exception to the rule of hearsay evidence.
(iv) The statement must be confidence bearing, truthful and credible as held by this Court in Laxman v. State of Maharashtra [Laxman v. State of Maharashtra, (2002) 6 SCC 710 : 2002 SCC (Cri) 1491] and consistently followed including the very recent one in Mallella Shyamsunder v. State of A.P. [Mallella Shyamsunder v. State of A.P., (2015) 2 SCC 486 :
(2015) 2 SCC (Cri) 115]
(v) The statement should not be one made on tutoring or prompting.
(vi) The court may also scan the statement to see whether the same is prompted by any motive of vengeance.
11. Prior to the abovesaid judgment, the Hon'ble Court also summarized the law of dying declarations in case titled Paniben (Smt) v. State of Gujarat, (1992) 2 SCC 474 as under:
17.The situation in which a man on death bed is so solemn and serene when he is dying -- the grave position in which he is placed, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying FIR No. 373/2011 State Vs. Mahesh Bansal etc. 18/60 declaration be excluded it will result in mis-carriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.
18. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-
examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M.P. [(1976) 3 SCC 104 : 1976 SCC (Cri) 376 : (1976) 2 SCR 764] )
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U.P v. Ram Sagar Yadav [(1985) 1 SCC 552 : 1985 SCC (Cri) 127 : AIR 1985 SC 416] ;
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 19/60 Ramawati Devi v. State of Bihar [(1983) 1 SCC 211 : 1983 SCC (Cri) 169 : AIR 1983 SC 164] ).
(iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618 : 1976 SCC (Cri) 473 : AIR 1976 SC 1994] ).
(iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence. (Rasheed Be v. State of M.P. [(1974) 4 SCC 264 : 1974 SCC (Cri) 426] )
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M.P [1981 Supp SCC 25 : 1981 SCC (Cri) 645 : AIR 1982 SC 1021] )
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U.P. [(1981) 2 SCC 654 : 1981 SCC (Cri) 581] )
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of Maharashtra v. Krishnamurti Laxmipati Naidu [1980 Supp SCC 455: 1981 SCC (Cri) 364 : AIR 1981 SC 617] )
(viii) Equally, merely because it is a brief statement, it is not be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar [1980 Supp SCC 769 : 1979 SCC (Cri) 519 : AIR 1979 SC 1505] )
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to FIR No. 373/2011 State Vs. Mahesh Bansal etc. 20/60 make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M.P. [1988 Supp SCC 152 : 1988 SCC (Cri) 342 : AIR 1988 SC 912] )
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U.P v. Madan Mohan [(1989) 3 SCC 390 : 1989 SCC (Cri) 585 : AIR 1989 SC 1519] )
12. In view of the abovesaid case law, it stands proved that the satisfaction of the court about truthfulness is main criteria to rely upon a dying declaration and failure to obtain medical fitness of deceased from doctor before making such dying declaration cannot be a ground to reject a dying declaration, especially when dying declaration can be oral also as laid down by case titled Vijay Pal v. State (Govt. of NCT of Delhi), (2015) 4 SCC 749.
13. Ld. Counsel for accused has relied upon a case titled Ranbir Singh Tyagi v. Sandeep Tyagi & Anr. 233(2016) DLT 580(DB) thereby submitting that the satisfaction of the person recording the dying declaration alone regarding fitness of the persons making it is not the sole criteria but the court has to be satisfied that the person to whom the statement is attributed was actually in a fit state of mind and actually made the statement. It has to be proved that that the dying declaration was made voluntarily and truthfully by a person who was in a fit state of mind. Medical evidence and surrounding circumstances cannot be ignored and kept out of consideration by the court. It is further argued that in case titled Kanti Lal v. State of Rajasthan, II (2009) CCR 401(SC), it has laid down that the person who recorded the dying declaration must be satisfied that the deceased was in a fit state of mind and FIR No. 373/2011 State Vs. Mahesh Bansal etc. 21/60 if endorsement is not made that statement was read over and explained to the deceased creates a doubt on the credibility and truthfulness of the statement. In case titled State (Delhi Administration) v. Smt. Kuldeep Kaur & Anr. II (2006) CCR 566 (DB), it has laid down that absence of any certificate from doctor certifying fitness of patient to make dying declaration is necessary to ascertain the mental and physical capacity of deceased to make such statement.
14. However, the above said case law relied upon by Ld. Defence Counsel is based upon particular facts, whereas case titled Paniben (Smt) v. State of Gujarat, (1992) 2 SCC 474 is dealing with exhaustive legal situation and is more applicable on the facts. The case titled Kanti Lal v. State of Rajasthan, II (2009) CCR 401(SC) deals with the submissions of the accused but the facts of that case were different. In that case, DW2 therein made various admissions during cross examination that he did not make any inquiry regarding the incident. Though some facts similar to that case are in this case also, yet that case is distinguishable on the facts that in that there was only single dying declaration, but in this case, PW16, SDM has also recorded another dying declaration in Question & Answer form and there is no reason to discard this dying declaration statement. Deceased repeated her similar version before PW16 also and it cannot be said that her version was entirely different before PW14. As such, two similar versions of two dying declarations made it clear that deceased made her both dying declarations voluntarily and those cannot be discarded just because no fitness certificate was granted by the doctor, whereas her MLC has proved that Ex.PW9 has proved that she was fit for statement at 12:20 pm. FIR No. 373/2011 State Vs. Mahesh Bansal etc. 22/60
15. No doubt a common practice is followed to obtain the medical fitness of patient/ persons making dying declaration to rule out any medical incapacity to make such dying declaration, but absence of such medical fitness may not be reason to discard a dying declaration where other circumstances are favourable and giving rise to occasion of recording dying declaration. In this case also, doctor declared deceased fit for statement in her MLC itself and PW14 has proved that doctor on duty refused to make attestation / endorsement on dying declaration, which has proved that doctor was not intended to be a witness to this dying declaration. It is not disputed that usually public persons and even public servants avoid to join investigation in anticipation of their harassment during trial, due to it cannot be denied in entirety that the explanation offered by PW14 for non-joining of doctor during recording of dying declaration seems correct. Again, PW14 was not sure as to whether he obtained thumb or toe impression of deceased on dying declaration, but merely this deposition is not sufficient to discard the testimony of PW14, especially when he was deposing before this court after about more than 6 years of the incident. Contrary to it, PW16 has categorically proved that he recorded the statement of deceased in his own handwriting and obtained her left and right toe impressions and this testimony has categorically proved that dying declaration was recorded by the PW16 and there is no reason to doubt the credibility of PW16 for the want of any allegation against him from any corner.
16. The purpose of scrutinize a dying declaration is to ascertain that declaration must not be result of any tutoring, prompting or imagination. The juristic theory regarding acceptability of a dying declaration is that such FIR No. 373/2011 State Vs. Mahesh Bansal etc. 23/60 declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the courts insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. However, in this case, deceased / injured was hospitalized at 11:30 am and she was declared fit for statement at 12:20 pm and during this period the family members of the deceased, who could have tutored her, were not present there due to there were no chances of tutoring, prompting or imagination. In fact, family members reached the hospital at about 8:00/8:30 pm as proved by PW4 during her statement. As such, dying declarations of deceased Nimisha @ Neha are correct and genuine. However, as to whether these dying declarations have proved the involvement of accused persons or not is to be determined a little bit later on.
17. Now the charges against the accused persons have to be determined. The first charge against all accused is u/s 498A/34 IPC, and it is to be seen as to whether prosecution has proved this charge or not. Before dealing with the evidence of PWs, it is necessary to see the legal requirements of this section as under:
Section-498-A. Husband or relative of husband of a woman subjecting her to cruelty. -- Whoever, being the husband or the FIR No. 373/2011 State Vs. Mahesh Bansal etc. 24/60 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 wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, 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 unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."
18. This section deals with the cruelty to a married woman by her in-laws. The "Cruelty" has been defined by the Explanation added to the section itself. The basic ingredients of Section 498-A IPC are cruelty and harassment. The elements of cruelty so far as clause (a) is concerned, have been classified as follows:
(i) any "wilful" conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(ii) any "wilful" conduct which is likely to cause grave injury to the woman; or
(iii) any "wilful" act which is likely to cause danger to life, limb or health, whether physical or mental of the woman.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 25/60
19. For the purpose of clause (b) the essential ingredients are as under:
(i) the harassment of a married woman,
(ii) with a view to coercing her or any person related to her to meet the unlawful demand of dowry or for any property or valuable security or on account of her failure or failure of any person related to her to meet such a demand.
20. In Explanation (b) there is absence of physical injury but it includes coercive harassment for demand of dowry, etc. Therefore, the aforesaid provisions deal with patent and latent acts of the husband or his family members. But both are equally serious in terms of the provisions of the statute. The provisions of Section 498-A IPC were introduced by an amendment to curb the harassment of a woman by her husband and/or his family members, for demand of dowry, etc. under the garb of fulfilment of the customary obligations. Therefore, it is evident that the charge under Section 498-A IPC can be brought home if the essential ingredients either in clause (a) or (b) or both are found duly established.
21. The abovesaid concept of cruelty came into interpretation before the Hon'ble Apex Court in case titled Undavalli Narayana Rao v. State of A.P., (2009) 14 SCC 588 and relevant paragraphs of this citation are as under:
17. In V. Bhagat v. D. Bhagat [(1994) 1 SCC 337 : AIR 1994 SC 710] this Court, while dealing with the issue of cruelty in the context of Section 13 of the Hindu Marriage Act, observed as under: (SCC pp. 347 & 349, paras 16-17) FIR No. 373/2011 State Vs. Mahesh Bansal etc. 26/60 "16. ... It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.
17. ... The context and the set-up in which the word 'cruelty' has been used in the section, seems to us, that intention is not a necessary element in cruelty. That word has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case, if by ordinary sense in human affairs, the act complained of could otherwise be regarded as cruelty."
18. In Mohd. Hoshan v. State of A.P. [(2002) 7 SCC 414 : 2002 SCC (Cri) 1765] this Court while dealing with the similar issue held that mental or physical torture should be "continuously"
practised by the accused on the wife. The Court further observed as under: (SCC p. 418, para 6) "6. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education, etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not."
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 27/60 In view of the abovesaid, it stands proved that the prosecution is bound to prove that accused caused cruelty towards the victim and that "cruelty" should be a case of continuous state of affairs of torture by one to another.
22. In the present case, the first dying declaration of the deceased Ex.PW14/B has proved that "Meri saas Bimla aur meri nanad Komal shaadi ke baad se hi mujhe chhoti-chhoti baato se tang karte the. Aksar mujhe gaon wali -goan wali kaha karte the aur aksar chhoti-chhoti baato par kaha karte the ki yah achha nahi hai-ye achha nahi hai. Jo aaj bhi kisi baat ko leker meri saas aur nanad ke saath kaha suni ho gayi thi jo isi baat ko lekar aaj mai apni jindagi se pareshan hokar apne par mitti ka tail daal liya aur aag laga li." Another dying declaration recorded by the SDM concerned and during this statement following questions were put to deceased as under:
Q. Aap ko aag kaise lagi?
A. Maine khud laga li.
Q. Aapke sasural walo ne aag lagayi ya aapne khud lagayi? A. Baat-baat par taane diya karte the isliye maine aag laga li. Q. Aapke sasural wale kisi prakar ke dahej aadi ki mang karte the kya? A. Chhoti-chhoti baat par taane diya karte the isliye aag laga li. Q. Nimisha aap pure hosho hawas mai yah bayaan de rahi ho? A. Ji.
23. Perusal of the both statements recorded by PW14 and PW16 would show that the deceased was not subjected to any cruelty or harassment for FIR No. 373/2011 State Vs. Mahesh Bansal etc. 28/60 demands of dowry and rather she was fed up the conduct of accused Bimla and Komal. Ld. Addl. PP for State has argued that dying declarations of deceased have proved that she was subjected to mental cruelty and harassment by accused Bimla and Komal on trifling issues and such harassment is duly covered by mental cruelty as defined by proviso of Section 498A IPC. However, this argument has no substance. Admittedly, allegations against an accused to prove his / her guilt must be specific and clear. It must be clarified on which particular date, month or year or occasion such mental cruelty or harassment was caused to victim. As per cruelty defined under section 498A IPC, any willful conduct of accused driving a married lady to commit suicide or endanger her life / limb or health is sufficient to prove his/her guilt. However, in this case, there is no such instance or any specific incident when deceased was subjected to particular cruelty to determine their guilt. The dying declarations of deceased have just allegations that both accused used to harass her on minor/ trifling issues and they used to call her villager which cannot be termed such cruelty or harassment as defined by Section 498A IPC. Her statement Ex.PW16/A has categorically proved that she was not subjected to any cruelty or harassment for demand of any dowry demand or for associated reasons. As such, dying declarations of victim Neha / Nimisha have failed to prove any cruelty towards her by accused Bimla and Komal.
24. Besides dying declarations, family members of deceased have also made certain allegations against accused persons that they used to harass the deceased for bring insufficient dowry in her marriage and thereafter. Even accused used to demand further dowry which they could not give and FIR No. 373/2011 State Vs. Mahesh Bansal etc. 29/60 resulted into committing suicide by the deceased. To prove these allegations, PW4 Smt. Nirmal and PW5 Pardeep Kumar are material witnesses. Both are parents of deceased and PW4 Smt. Nirmal has deposed that they had paid cash of Rs. 9 Lacs to accused under the demand of accused Mahesh Bansal, but that amount was paid secretly. She has alleged that on the day of marriage on 01.12.2010, an amount of Rs. 3.5 Lacs was given, on 17.10.2010, on the occasion of engagement Rs. 2.28 lacs were given, Rs. 1.37 Lacs were spent on purchasing of jewellary and Rs. 80,000/- spent on clothes, but she has admitted during cross examination that she has no documents to prove that they ever gifted/ paid Rs. 9 Lacs to accused in marriage of deceased in the above said manner. Rather she has denied the suggestion of Ld. Addl. PP for State that they paid this cash amount 6 times after the marriage of her deceased. On the other hand, PW5 Pardeep Kumar who is the father of deceased has deposed that they did not purchase any fresh jewellery for this marriage and jewellery was got prepared from old gold ornaments through Goldsmith, but he could not tell as to what ornaments were got prepared. Rather, he has admitted that only one diamond ring in the name of his wife was purchased from Dhampur. They could not produce the purchase receipts of clothes or other items and whatever receipts produced by PW4 i.e. Ex.PW4/D1 and Ex.PW4/D2 are copies and not originals. Even payment through those receipts also not proved. In fact, PW5 has not supported the PW4 about spending of claimed amount in marriage of deceased with accused Gaurav Bansal or demanded by Mahesh Bansal as alleged.
25. Further, the financial capacity of parents of deceased to pay such amount is also matter of consideration. PW4 has deposed that they had Rs. 5- FIR No. 373/2011 State Vs. Mahesh Bansal etc. 30/60 6 Lacs in their accounts at the time of this marriage and has denied that they did not have more than 1 Lac in accounts, whereas PW5 has admitted that he had Rs. 1 Lac only in his accounts, but withdrew Rs. 2 Lacs about one year prior to the marriage of his daughter. Contrary to it, PW11 Raju Kumar Jindal, who is the uncle of the deceased, has deposed that they spent Rs. 6 Lacs in marriage besides Rs. 1 Lac spent on jewellery. This deposition of PW11 is in contradiction of PW 4 & 5. However, from the record, it is clear that financial condition of the family members of the deceased was much sound to pay such huge amount to accused persons as alleged. PW4 and PW5 have admitted that their monthly income was Rs. 11,000/- and Rs. 8000- 10000/- per month respectively, whereas they used to spend Rs. 7000-8000/- per month. However, statement of accounts of the both PW4 and PW5 have failed to support their version also. PW5 has proved that he did not remember the exact amount in their joint account on the day of marriage and it could be Rs. 1,000/-, Rs.2,000/- or Rs. 5,000/-, whereas statement of A/C produced before the court would show that financial condition of parents of deceased was not so good and statement of accounts has no entry of huge amount to prove that they ever withdrew such amount prior to, during or after marriage to give / pay to accused persons.
26. PW4 and PW5 further alleged that accused Gaurav Bansal used to demand cash and they used to pay him. Even on 03.11.2011, deceased visited her parental home to appear in her E.T. examination and Gaurav Bansal reached there on 27.11.2011 to bring her back and on 28.11.2011, when he was leaving to his home, he demanded a Santro car, but they refused to fulfill this demand as they did not have such financial condition. However, this FIR No. 373/2011 State Vs. Mahesh Bansal etc. 31/60 testimony has been disputed by PW11 who has deposed that father-in-law of the deceased Mahesh Bansal came to taking her back to her matrimonial home and she accompanied him, which is entirely a different version and has ruled out the visit of accused Gaurav Bansal. PW5 has further deposed that he withdrew Rs. 1 Lac from his GPF hoping to gift car to accused after purchasing in EMI, this fact is also disputed and could not be proved. Though there is no proof of demand of such Santro car except oral allegations of parents of deceased, yet PW11 Raju Jindal has again disputed this demand thereby deposing that accused used to demand motorcycle and cash. As such, this testimony of PW11 has disputed the testimonies of PW4 and PW5 and demand of car also. Even the testimony of PW5 that he withdrew Rs. 1 Lac from his PF accounts to purchase car to gift accused is also against his statement of accounts which has proved that PW5 withdrew this amount Rs.1 Lac on 07.01.2011, but it was paid/ give to one Shardha Aggarwal on 16.01.2011. It is beyond explanation as to how this amount was withdrawn by PW5 for purchasing of car and why he paid amount to that lady, as there is no accused of such name. The testimony of PW5 is falsified by the statement of accounts that alleged demand of car was raised on 27.11.2011, whereas he had already paid this amount to Smt. One Shardha Aggarwal on 16.01.2011 itself. As such, none of the dowry demands could be proved.
27. Further, PW4 and PW5 have deposed that after some days of marriage, all accused persons namely Mahesh Bansal, Bimla, Saurav and Komal started harassing the deceased, but they have not made any police complaint against the accused. This marriage was solemnized through middle man Vijay Kumar Bhushan, but still they never made any complaint against accused to him FIR No. 373/2011 State Vs. Mahesh Bansal etc. 32/60 also. Even they talked to deceased about two days prior to this incident, but still she did not make any complaint against the accused persons and she was Okay. Rather PW11 Raju Jindal has admitted that he did not disclose to police about the dowry demands especially minute details of demands proved before this court, which suggests that he has improved upon his earlier stand. Deceased allegedly disclosed to him about the cruelty or harassment caused by the accused person via telephone, but he did not know date, month or year of such phone call, whereas deceased herself did not disclose anything about such harassment despite making two dying declarations. On the other hand, PW4 has duly admitted that she met her daughter on 28.11.2011 when she visited her house and also met about 6-7 times after her marriage upto 28.11.2011, but she never reported any no specific cruelty or harassment by any specific accused. PW5 has also corroborated this fact.
28. So far as defence of accused persons is concerned, they have alleged that deceased was suffering and was under the influence of some evil spirit which resulted into her suicide. In support of their argument, they have alleged that deceased was taken to Mehandipur Balaji to get her relieved of such evil influence and even PW4 has also admitted that she visited there. However, in this scientific age, there is no place for such orthodox thoughts. As such, from the testimonies of PWs, it stands proved that there is no material evidence, either in dying declarations of deceased or otherwise that deceased was ever subjected to any cruelty or harassment for dowry demands or subjected to any mental cruelty due to this charge u/s 498A/34 IPC could not be proved against accused persons.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 33/60
29. Next charge against the accused is under section 304B/34 IPC. Before analysing of evidence of prosecution witnesses, it is necessary to go through legal position of dowry death as under: -
304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.--For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 [28 of 1961].
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
30. Perusal of the above provision would indicate that the main ingredients of the offence required to be established are :--
(i) that soon before the death, the deceased was subjected to cruelty and harassment in connection with the demand of dowry;
(ii) the death of the deceased was caused by any burn or bodily injury or some other circumstance which was not normal;
(iii) such a death has occurred within 7 years from the date of her marriage;
(iv) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband;
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 34/60
(v) such a cruelty or harassment should be for, or in connection with the demand of dowry; and
(vi) it should be established that such cruelty and harassment were made soon before her death.
31. The presumption drawn relating to dowry death has been contemplated in Section 113B of the Indian Evidence Act, 1872, which states as follows:
"113B. Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation - For the purposes of this section, "dowry death"
shall have the same meaning as in section 304B of the Penal Code, 1860 (45 of 1860)."
32. Section 304B IPC read along with Section 113B of the Indian Evidence Act, 1872 makes it clear that once the prosecution has succeeded in demonstrating that a woman has been subjected to cruelty or harassment for or in connection with any demand for dowry soon after her death, a presumption shall be drawn against the said persons that they have caused dowry death as contemplated under Section 304B IPC. The said presumption comes with a rider inasmuch as this presumption can be rebutted by the accused on demonstrating during the trial that all the ingredients of Section 304B IPC have not been satisfied.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 35/60
33. Section 304B IPC and 113B of Evidence Act came into interpretation before the Hon'ble Apex Court in case titled Pathan Hussain Basha v. State of A.P., (2012) 8 SCC 594 as under: -
16. Besides examining the ingredients of the provision, it would also be necessary for us to examine the meaning and connotation of the expressions "dowry death", "soon before her death" and "in connection with, any demand for dowry" as appearing in Section 304-B. Amongst others, lapse of time between the date of marriage and the date of death is also a relevant consideration for the Court while examining whether the essential ingredients of the provision are satisfied or not in a given case. In Ashok Kumar v. State of Haryana [(2010) 12 SCC 350 : (2011) 1 SCC (Cri) 266] this Court explained these terms in some elucidation and the effect of the deeming fiction appearing in the section, as follows: (SCC pp. 357-60, paras 11-
23) "11. The appellant was charged with an offence under Section 304-B of the Code. This penal section clearly spells out the basic ingredients as well as the matters which are required to be construed strictly and with significance to the cases where death is caused by burns, bodily injury or the death occurring otherwise than under normal circumstances, in any manner, within seven years of a marriage. It is the first criterion which the prosecution must prove. Secondly, that 'soon before her death' she had been subjected to cruelty or harassment by the husband or any of the relatives of the husband for, or in connection with, any demand for dowry then such a death shall be called 'dowry death' and the husband or the relative, as the case may be, will be deemed to have caused such a death. The Explanation to this section requires that the expression 'dowry' shall have the same meaning as in Section 2 of the Act.
12. The definition of 'dowry' under Section 2 of the Act reads 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--
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 36/60
(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.
Explanation I.--*** Explanation II.--The expression "valuable security" has the same meaning as in Section 30 of the Penal Code, 1860.'
13. From the above definition it is clear that, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly by one party to another, by parents of either party to each other or any other person at, before, or at any time after the marriage and in connection with the marriage of the said parties but does not include dower or mahr under the Muslim personal law. All the expressions used under this section are of a very wide magnitude.
14. The expressions 'or any time after marriage' and 'in connection with the marriage of the said parties' were introduced by the amending Act 63 of 1984 and Act 43 of 1986 with effect from 2-10-1985 and 19-11-1986 respectively. These amendments appear to have been made with the intention to cover all demands at the time, before and even after the marriage so far they were in connection with the marriage of the said parties. This clearly shows the intent of the legislature that these expressions are of wide meaning and scope. The expression 'in connection with the marriage' cannot be given a restricted or a narrower meaning. The expression 'in connection with the marriage' even in common parlance and on its plain language has to be understood generally. The object being that everything, which is offending at any time i.e. at, before or after the marriage, would be covered under this definition, but the demand of dowry has to be 'in connection with the marriage' and not so customary that it would not attract, on the face of it, the provisions of this section.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 37/60
15. At this stage, it will be appropriate to refer to certain examples showing what has and has not been treated by the courts as 'dowry'. This Court, in Ran Singh v. State of Haryana [(2008) 4 SCC 70 : (2008) 2 SCC (Cri) 182] , held that the payments which are customary payments, for example, given at the time of birth of a child or other ceremonies as are prevalent in the society or families to the marriage, would not be covered under the expression 'dowry'.
16. Again, in Satvir Singh v. State of Punjab [(2001) 8 SCC 633 : 2002 SCC (Cri) 48] , this Court held that the word 'dowry' should be any property or valuable given or agreed to be given in connection with the marriage. The customary payments in connection with birth of a child or other ceremonies are not covered within the ambit of the word 'dowry'.
17. This Court, in Madhu Sudan Malhotra v. Kishore Chand Bhandari [1988 Supp SCC 424 : 1988 SCC (Cri) 854] , held that furnishing of a list of ornaments and other household articles such as refrigerator, furniture and electrical appliances, etc. to the parents or guardians of the bride, at the time of settlement of the marriage, prima facie amounts to demand of dowry within the meaning of Section 2 of the Act. The definition of 'dowry' is not restricted to agreement or demand for payment of dowry before and at the time of marriage but even include subsequent demands, was the dictum of this Court in State of A.P. v. Raj Gopal Asawa [(2004) 4 SCC 470 : 2004 SCC (Cri) 1306] .
18. The courts have also taken the view that where the husband had demanded a specific sum from his father-in-law and upon not being given, harassed and tortured the wife and after some days she died, such cases would clearly fall within the definition of 'dowry' under the Act. Section 4 of the Act is the penal section and demanding a 'dowry', as defined under Section 2 of the Act, is punishable under this section. As already noticed, we need not deliberate on this aspect, as the accused before us has neither been charged nor punished for that offence. We have examined the provisions of Section 2 of the Act in a very limited FIR No. 373/2011 State Vs. Mahesh Bansal etc. 38/60 sphere to deal with the contentions raised in regard to the applicability of the provisions of Section 304-B of the Code.
19. We have already referred to the provisions of Section 304-B of the Code and the most significant expression used in the section is 'soon before her death'. In our view, the expression 'soon before her death' cannot be given a restricted or a narrower meaning. They must be understood in their plain language and with reference to their meaning in common parlance. These are the provisions relating to human behaviour and, therefore, cannot be given such a narrower meaning, which would defeat the very purpose of the provisions of the Act. Of course, these are penal provisions and must receive strict construction. But, even the rule of strict construction requires that the provisions have to be read in conjunction with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.
20. We are of the considered view that the concept of reasonable time is the best criterion to be applied for appreciation and examination of such cases. This Court in Tarsem Singh v State of Punjab [(2008) 16 SCC 155 : (2010) 4 SCC (Cri) 27] , held that the legislative object in providing such a radius of time by employing the words 'soon before her death' is to emphasise the idea that her death should, in all probabilities, has been the aftermath of such cruelty or harassment. In other words, there should be a reasonable, if not direct, nexus between her death and the dowry-related cruelty or harassment inflicted on her.
21. Similar view was expressed by this Court in Yashoda v. State of M.P. [(2004) 3 SCC 98 : 2004 SCC (Cri) 671] , where this Court stated that determination of the period would depend on the facts and circumstances of a given case. However, the expression would normally imply that there has to be reasonable time gap between the cruelty inflicted and the death in question. If this is so, the legislature in its wisdom would have specified any period which would attract the provisions of this section. However, there must be existence of proximate link between the acts of cruelty along with the demand of dowry and the death of FIR No. 373/2011 State Vs. Mahesh Bansal etc. 39/60 the victim. For want of any specific period, the concept of reasonable period would be applicable. Thus, the cruelty, harassment and demand of dowry should not be so ancient, whereafter, the couple and the family members have lived happily and that it would result in abuse of the said protection. Such demand or harassment may not strictly and squarely fall within the scope of these provisions unless definite evidence was led to show to the contrary. These matters, of course, will have to be examined on the facts and circumstances of a given case.
22. The cruelty and harassment by the husband or any relative could be directly relatable to or in connection with, any demand for dowry. The expression 'demand for dowry' will have to be construed ejusdem generis to the word immediately preceding this expression. Similarly, 'in connection with the marriage' is an expression which has to be given a wider connotation. It is of some significance that these expressions should be given appropriate meaning to avoid undue harassment or advantage to either of the parties. These are penal provisions but ultimately these are the social legislations, intended to control offences relating to the society as a whole. Dowry is something which existed in our country for a considerable time and the legislature in its wisdom considered it appropriate to enact the law relating to dowry prohibition so as to ensure that any party to the marriage is not harassed or treated with cruelty for satisfaction of demands in consideration and for subsistence of the marriage.
23. The court cannot ignore one of the cardinal principles of criminal jurisprudence that a suspect in the Indian law is entitled to the protection of Article 20 of the Constitution of India as well as has a presumption of innocence in his favour. In other words, the rule of law requires a person to be innocent till proved guilty. The concept of deeming fiction is hardly applicable to the criminal jurisprudence. In contradistinction to this aspect, the legislature has applied the concept of deeming fiction to the provisions of Section 304-B. Where other ingredients of Section 304-B are satisfied, in that event, the husband or all relatives shall be deemed to have caused her death. In other words, the offence shall be deemed to have been committed by fiction of law. Once the prosecution proves its FIR No. 373/2011 State Vs. Mahesh Bansal etc. 40/60 case with regard to the basic ingredients of Section 304-B, the court will presume by deemed fiction of law that the husband or the relatives complained of, has caused her death. Such a presumption can be drawn by the court keeping in view the evidence produced by the prosecution in support of the substantive charge under Section 304-B of the Code."
(emphasis in original) In view of this law, it stands proved that the cruelty has to be proved by the prosecution in terms of section 498A of IPC, whereas this cruelty should not be a cruelty simpliciter but with object to demand of dowry. This cruelty for demand of dowry must be result of death of a married lady and such facts have to be proved beyond doubt by the prosecution.
34. To prove the ingredients of the offence u/s 304B IPC, prosecution has examined PW4 Smt. Nirmal, who has alleged that deceased was subjected to cruelty and harassment for bringing insufficient dowry and also that the accused persons killed her. She further alleged that accused demanded dowry and they also paid about 9 Lacs on different occasions to accused. It is further alleged that deceased used to tell her that she was subjected to cruelty and harassment by accused, but she always made to understand her to adjust in family. It is further alleged that they gave about 1.70 Lacs to accused on five occasions in months of June, July, August, September and October as per their demands. She further alleged that in the month of November, accused Gaurav Bansal visited her house and demanded a Santro Car, which they could not give and on 07.12.2011, deceased was set on fire.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 41/60
35. However, the abovesaid allegations of the PW4 could not be corroborated by her husband / PW5 Pradeep Kumar, who has not corroborated about the allegations of payment of Rs. 1.70 Lacs on five occasions. Rather he has admitted during cross examination that no specific cruelty was reported to him by deceased against any specific accused. Even PW4 has also corroborated that deceased never informed or reported her about any such cruelty. Though PW4 and 5 have corroborated that on 28.11.2011, accused Gaurav visited their house and demanded a Santro Car which they refused, but this testimony has been disputed by PW11 that accused Mahesh Bansal visited the parental house of deceased and took her back. As such, fact remained disputed and unproved. Further, the allegation of withdrawal of an amount of Rs. 1 Lac from GPF account of PW5 for purchasing car in EMI to gift accused and prior to it deceased burnt also could not be proved. I have already dealt with this plea during my finings u/s 498A/34 IPC and could not be proved.
36. Even the testimony of PW11 Raju Jindal has disputed the testimonies of PW4 and PW5 thereby deposing that cash amount of Rs. 6 Lacs was given in marriage besides jewellery items and clothes etc. The contradictions in the testimonies of PW4, PW5 and PW11 have already been discussed that these contradictions have failed to prove the allegations of the prosecution. Even the demand of Santro Car by accused Gaurav has been disputed by PW11 that accused used to demand motorcycle and cash and used to harass / torture her for this demand. Similarly, PW11 he has deposed that deceased told him about her cruelty and harassment by accused via telephone, but he failed to disclose when such call was made. He further deposed that about one month FIR No. 373/2011 State Vs. Mahesh Bansal etc. 42/60 prior to this incident, she was beaten up by the accused and visited about 4-5 days prior to this incident when father-in-law of deceased took her back to her matrimonial house. However, again this testimony is against the testimonies of PW4 and PW5, who have deposed that accused Gaurav Bansal visited their house and demanded Santro Car, but their testimonies are silent that father-in-law of deceased took her back. Rather, this deference of facts deposed by PWs have failed to prove that deceased was ever beaten up about one month prior to this incident.
37. Even the statements of PWs before this court are also against their previous statements u/s 161 CrPC. PW11 has duly admitted during cross examination that he did not disclose the description of demands of dowry raised by accused persons earlier. Even his police statement was also not having any incident of beating to deceased by accused, especially about one month prior to this incident. Rather, PW4, PW5 and PW11 have duly admitted that they never made any police complaint prior to this incident regarding ill treatment to deceased. PW4 and PW5 also did not make any complaint against the accused persons and even she was also not medically examined till her last visit to her parental house.
38. On the other hand, dying declarations of deceased proved by PW14 and PW16 have categorically proved that PW16 asked about dowry demands by family members / accused, but she did not disclose anything about her cruelty or harassment or about dowry demands. She was the best witness to prove dowry demands or cruelty or harassment by accused persons, but she preferred to keep mum and testimonies of other witnesses, who never made FIR No. 373/2011 State Vs. Mahesh Bansal etc. 43/60 any police complaint or any complaint to mediator of marriage, suggests that the allegations against the accused persons after afterthought. Rather PW4 and PW5 have admitted that they talked to the deceased about 2 days prior to this incident and she was OK and did not make any complaint against the accused persons.
39. So far as testimonies of other PWs are concerned, PW7 Smt. Chandra Kanta, PW8 Smt. Saroj Balyan and PW12 Smt. Vibha Sharma only visited the spot of incident and spotted the deceased lying at the spot. Though Though PW12 Vibha Sharma has deposed that deceased Neha told to the peoples present there that she was burnt by accused persons, but no such witnesses has been examined by the prosecution in whose presence deceased stated that she was burnt by accused persons. Rather they were witnesses of visit to the house of accused only and also that the deceased was lying at the spot after this incident in burnt condition. PW6 Sanjeev Chauhan has also deposed that on the way to hospital deceased stated to Bimla Devi that "yeh sab tune hi tau kiya hai.", but just on the basis of this random statement it cannot be proved that deceased was burnt by the accused persons. Even otherwise merely a statement "yeh sab tune hi tau kiya hai" doesn't mean and may be interpreted in any manner that accused burnt or killed the deceased. So far as police witnesses are concerned, they have proved the arrest and investigation part which is not disputed by and large. However, none of the witness could prove the involvement of accused persons in any manner.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 44/60
40. In fact, prosecution is bound to prove that the deceased was subjected to cruelty and harassment in connection with the demand of dowry soon before her death, but this material content of the offence could not be satisfied, as the testimonies of PWs are lacking such evidence which could have proved that the deceased was actually harassed by accused persons soon before her death. Even the dying declarations of deceased have also failed to prove this offence.
41. No doubt, the death of deceased was caused by burn injuries, but said burn injuries were caused by the deceased herself and there is no other circumstance which could prove any abnormality in her death. Though the death of the deceased occurred within 7 years from the date of her marriage, yet merely death of a lady within 7 years is not a ground to convict her husband and in-laws and rather such death must be under abnormal circumstances and this fact also must be proved. In this case, it could not be proved that the victim was subjected to any cruelty or harassment by her husband or any other relative of her husband for any purpose what to say of dowry demands.
42. PW15 Dr Arvind Kumar has proved the post mortem report of the deceased as Ex.PW15/A and PW9 has proved MLC Ex.PW9/A, but contents of post mortem report as well as MLC has also failed to prove anything adverse against the accused. Though PW15 has not reproduced the contents of MLC during his statement, yet this report is not disputed by accused persons by availing nil opportunity for cross examination. However, injuries detected in the post mortem report were only superficial to deep antemortem FIR No. 373/2011 State Vs. Mahesh Bansal etc. 45/60 flame burns on the whole-body excluding scalp were detected but those were natural injuries in burn cases, especially when deceased was burnt upto 98%. The cause of death was shock as a result of antemortem flame by burns, which again was consequential cause of death under such cases. In fact, there was no other injury or marks or signs of cruelty on deceased to prove any cruelty or harassment, soon before death or otherwise had taken place against her. As such, it could not be proved that deceased was subjected to any physical cruelty or torture for not meeting out dowry demands of accused persons or that her said death was unnatural or abnormal. As such, there is neither oral nor documentary or medical evidence to prove that deceased was subjected to any cruelty or harassment or was killed by accused persons or died under abnormal circumstances, due to charges u/s 304B/34 IPC could not be proved against accused persons even with the help of presumption u/s 113B of Evidence Act. Presumption u/s 113B of Evidence may be raised only, if the cruelty in connection with dowry demands is prima facie proved, which is not proved in this case and accused are not liable for charges u/s 304B/34 IPC.
43. Next charge against the accused persons is under section 302/34 IPC. Probably this charge has been framed just because the family members of the deceased alleged in their statements that deceased was killed by the accused persons. However, murder is more serious offence than dowry death or cruelty defined u/s 498A/304B IPC, due to its mode and manner of proving is different. Even parameters of murder are also different to other offence like 304B IPC and there is no presumption like 113B of Evidence Act in favor of prosecution and rather presumption of innocence is in favor of accused FIR No. 373/2011 State Vs. Mahesh Bansal etc. 46/60 persons. For better appreciation, it is necessary to see the definition of murder provided under section 300 IPC as under:
Section-300.- Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is does with the intention of causing death, or-
Secondly.- if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.- If it is done with the intention of causing bodily injury to any persons and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly.- If the person committing the act knows that it is so imminently angerous that it must, in all probability, caused death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception1.- When culpable homicide is not murder- Culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other persons by mistake or accident. The above exception is subject to the following provisos:-
First.- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any persons.
Secondly.- That the provocation is not given by anything done in obedience to law, or by public servant in the lawful exercise of the powers of such public servant.
Thirdly.- That the provocation is not given by anything done in the lawful exercise of the right of private defense.
Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a FIR No. 373/2011 State Vs. Mahesh Bansal etc. 47/60 question of fact.
Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the persons against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary of the purpose of such defense.
Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken due advantage or acted in a cruel of unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
44. The ingredients of murder would show that, if death or bodily injury was sufficient to cause death of the deceased was caused with pre- determination of mind i.e. intention and knowledge and resulted into death, then it is a case of murder. Further, if the injury was immediately dangerous or probable within the knowledge of inflictor, then also it is a case of murder. As such, this case has is to be determined on the basis of above said FIR No. 373/2011 State Vs. Mahesh Bansal etc. 48/60 ingredients that deceased was killed by the accused persons with specific intention or knowledge to kill her.
45. However, in this case, testimonies of PW4, PW5 and PW11 have failed to prove in what manner deceased Neha @ Nimisha was killed by the accused persons. No doubt, complainant made this allegation against the accused on which basis this charge was framed, but prosecution was bound to lead evidence also to prove this charge, However, prosecution has not led any evidence except oral allegations that deceased was killed by accused persons. Dying declarations of the deceased proved by PW14 and PW16 have failed to prove that she was harassed or treated with cruelty on account of dowry demands or put on fire by them. She has categorically admitted that she put herself on fire after getting fed up with taunting of her mother-in-law and sister-in-law, but she was not killed by anyone. PW4, PW5 and PW11 have only alleged that she was killed but they have not led any evidence on record that she was killed by accused persons.
46. MLC and Postmortem reports were the main documents to prove that she was killed under unnatural circumstances, but MLC and Post Mortem Report have failed to point out except superficial injuries by burn which is not disputed fact and consequential of self-immolation by deceased. The injuries noticed in postmortem report and MLC were expected during self- immolation also and were not unnatural. Besides it, police officials, especially PW14, who conducted initial investigation and PW17 / IO who conducted remaining investigation have not pointed out any such evidence or circumstances that deceased was killed by accused persons. SOC report has FIR No. 373/2011 State Vs. Mahesh Bansal etc. 49/60 pointed out the place of incident where no suspicious evidence was found on the spot or the evidence that she was forced to commit suicide. Photographs have also failed to prove anything wrong.
47. PW6 Sh. Sanjeev Chauhan has deposed that the deceased was removed by him to hospital and on the way, deceased stated to accused Bimla that ye tune hi tau kiya hai and when she stated 'maine kya kiya hai kutia, then she exhorted 'kutiya ye tune hi kiye hai'. Ld. Addl. PP for State has argued that this testimony of PW6 coupled with testimonies of other PWs have proved that deceased was killed by accused persons. However, merely a random statement of deceased cannot prove that accused killed her. She has not disclosed in what manner accused Bimla killed her and what role was played by other accused during this incident. If it is assumed that accused Bimla poured kerosene oil and put her on fire, then also deceased was supposed to further clarify in what manner she killed by her and what was the mode and manner of this incident. However, entire testimonies of all PWs are silent about it. On the other hand, deceased made two dying declarations on different timings but she did not specify in what manner she was killed by the accused persons. She just stated that she put herself on fire as her mother-in- law and sister-in-law used to taunt her on trifling issues. She was specifically asked by PW16 about the role of her in-laws during this incident, but she did not tell anything. As such, dying declarations and testimonies of PWs have failed to prove that the accused persons killed the deceased.
48. Further, medical evidence is also material to prove a murder, but MLC and postmortem report of the deceased and injuries detected during Post-
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 50/60 Mortem Report were only superficial to deep antemortem flame burns injureis and were found present on the whole-body excluding scalp. The cause of death was shock as a result of antemortem flame by burns. She sustained burn injuries 95% to 98% as per MLC. In fact, description of injuries detected on dead body in postmortem or MLC were in consent with dying declarations of the deceased and there is no reason to doubt. As such, medical as well as oral evidence led by the prosecution has failed to prove the involvement of the accused to commit this murder.
49. Further, it is necessary to prove intention or knowledge of the accused to commit murder of deceased coupled with motive. MLC and Postmortem report of the deceased have failed to prove that deceased was ever assaulted with intention or knowledge or was ever caused any injury with such intention which could have caused her death, due to it cannot be said that she was murdered by accused persons. PW5 has admitted during his cross examination that deceased never made any complaint against any specific accused for committing cruelty or harassment to the deceased. In fact, both the parents of deceased (PW4 & PW5) have duly admitted they never made any complaint against accused with police and PW11 has also corroborated their testimony, due to it cannot be said that deceased was subjected to any cruelty or harassment or was killed by accused persons. Through motive of the accused has been cited as cruelty and dowry demands from the deceased, yet those demands could not be proved due to this motive is also without substance and cannot be a ground to convict accused persons for such a serious offence. As such, charges u/s 302/34 IPC also could not be proved against the accused persons.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 51/60
50. Next charge against the accused persons is u/s 306/34 IPC. However, before dealing with this charge, it is necessary to see the parameters of this offence to appreciate evidence of the prosecution qua this offence. Section 306 IPC deals with the abatement of suicide which is as under:
Section-306. Abetment of suicide.--If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
51. From a bare reading of the abovesaid section, it is clear that to constitute an offence under Section 306 IPC, the prosecution has to establish:
(i) that a person committed suicide, and (ii) that such suicide was abetted by the accused. In other words, an offence under Section 306 IPC would stand only if there is an "abetment" for the commission of the crime.
52. The parameters of "abetment" have been stated in Section 107 IPC, which defines "abetment" of a thing as follows:
"107. Abetment of a thing.--A person abets the doing of a thing, who--
First.--Instigates any person to do that thing; or Secondly.--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to FIR No. 373/2011 State Vs. Mahesh Bansal etc. 52/60 disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."
53. As per this section, a person can be said to have abetted in doing a thing, if he, firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing. Explanation to Section 107 states that any willful misrepresentation or willful concealment of material fact which he is bound to disclose, may also come within the contours of "abetment". It is manifest that under all the three situations, direct involvement of the person or persons concerned in the commission of offence of suicide is essential to bring home the offence under Section 306 IPC.
54. This section came interpretation in case titled Chitresh Kumar Chopra v. State (NCT of Delhi), (2009) 16 SCC 605 and the relevant observations of the court are as under:
16. Speaking for the three-Judge Bench in Ramesh Kumar case [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088], R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite 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 consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. Where the accused had, by his acts or omission or by a continued course of FIR No. 373/2011 State Vs. Mahesh Bansal etc. 53/60 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. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation.
17. Thus, to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or "urging forward". The dictionary meaning of the word "goad" is "a thing that stimulates someone into action; provoke to action or reaction"
(see Concise Oxford English Dictionary); "to keep irritating or annoying somebody until he reacts" (see Oxford Advanced Learner's Dictionary, 7th Edn.).
18. Similarly, "urge" means to advise or try hard to persuade somebody to do something or to make a person to move more quickly and or in a particular direction, especially by pushing or forcing such person. Therefore, a person who instigates another has to "goad" or "urge forward" the latter with intention to provoke, incite or encourage the doing of an act by the latter.
19. As observed in Ramesh Kumar [(2001) 9 SCC 618 : 2002 SCC (Cri) 1088], where the accused by his acts or by a continued course of conduct creates such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 54/60 In view of the abovesaid law, it stands proved that the accused charged with this section must have done some acts or omissions by a continued course of conduct by creating such circumstances that the deceased was left with no other option except to commit suicide and such conduct may be an "instigation". Such instigation must to provoke, incite, urge or encourage other for doing of an act by the other by "goading" or "urging forward" or stimulating someone into action to take extreme action of ending life. In fact, prosecution is bound to prove this "instigation" against the accused with positive evidence and malafide intention.
55. Ld. Counsel for the accused has argued that the deceased committed this suicide under the influence of evil spirit and accused did not play any role during the incident, whereas this argument has been strongly opposed by the prosecution thereby arguing that she was subjected to cruelty and harassment and was compelled to commit suicide. It is further argued that deceased was being regularly taunted by the accused Bimla and Komal and they used to call her villager which compelled her to commit suicide. Admittedly, suicide is a very theoretical issue and there may be a number of reasons for committing suicide and no straight-jacket formula can be applied for the reason of suicide. However, the observation of the Hon'ble Apex Court in Chitresh Kumar Chopra v. State (NCT of Delhi), (2009) 16 SCC 605 is relevant as under:
20.In the background of this legal position, we may advert to the case at hand. The question as to what is the cause of a suicide has no easy answers because suicidal ideation and behaviours in human beings arere complex and multifaceted. Different individuals in the same situation react and behave differently FIR No. 373/2011 State Vs. Mahesh Bansal etc. 55/60 because of the personal meaning they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self-protection or an escapism from intolerable self.
56. In view of the above said law, it stands proved that to constitute "instigation", a person who instigates another has to provoke, incite, urge or encourage the doing of an act by the other by "goading" or "urging forward". In fact, some stimulation is required by the accused to the deceased to come into action; provoke to action or reaction. The Hon'ble Apex Court has held in case titled Ramesh Kumar [(2001) 9 SCC 618: 2002 SCC (Cri) 1088] has laid down that accused by his acts or by a continued course of conduct must create such circumstances that the deceased was left with no other option except to commit suicide, an "instigation" may be inferred. In other words, in order to prove that the accused abetted commission of suicide by a person, it has to be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful omission or conduct which may even be a wilful silence until the deceased reacted or pushed or forced the deceased by his deeds, words or wilful omission or conduct to make the deceased move forward more quickly in a forward direction; and
(ii) that the accused had the intention to provoke, urge or encourage the deceased to commit suicide while acting in the manner noted above. Undoubtedly, presence of mens rea is the necessary concomitant of instigation.
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 56/60
57. In fact, to prove the offence of abetment of suicide, any willful act, conduct or omission is required on the part of accused and this act, conduct or omission must be with mens-rea. Prosecution is bound to prove by positive evidence that accused did such act, conduct or omission which instigated the deceased to commit suicide. However, in this case, there is no evidence on record except the dying declarations of deceased recorded by PW14 and PW16, as per which also, she failed to prove that she was instigated or compelled by the accused persons to commit suicide. The dying declarations Ex.PW14/B and Ex.PW16/A have proved that accused Bimla and Komal used to taunt her on minor issues and also used to call her villager, but she has not elaborated further as to when and where she was called villager or was taunted on minor issues. She has not proved any instance when she was subjected to any cruelty or harassed or taunted by the accused. Prosecution was duty bound to collect some evidence during investigation to corroborate the dying statement of deceased in what manner she was being taunted or harassed by accused persons. No doubt, deceased died after this incident, but there is no evidence that she was instigated to commit suicide and family members of deceased or neighbors also could not prove that they ever witnessed any such harassment or cruelty or taunting to deceased as alleged.
58. No doubt, dying declaration is solely sufficient to prove the guilt of the accused as held by the Hon'ble High Court of Delhi in case titled II (2006) CCR 566 (DB) titled State (Delhi Administration) v. Smt. Kuldeep Kaur that dying declaration without any corroboration by any other evidence or circumstances cannot be relied upon. Dying declaration proved by the prosecution must prove and corroborate the circumstances and other facts FIR No. 373/2011 State Vs. Mahesh Bansal etc. 57/60 which alleged in that dying declaration with some elaboration. If existence of the facts mentioned in the dying declaration are not proved, then such dying declaration may not prove the guilt of the persons who implicated by the virtue of such dying declaration. The law laid down in case titled Netai Dutta v. State of West Bengal, II (2005) SLT 586 is well applicable in this case. It is held in that case that a suicide note was involved but there was no reference of any act or incident whereby the appellant was alleged to have committed any willful act or omission or intentionally aided or instigated the deceased to have committing suicide is not a case of instigation. Even it is held in case titled Mahendra Singh & Anr v. State of M.P. 1995 Supp.(3) SCC 731 that the words uttered in a quarrel or in the spur of the moments or in anger cannot be treated as constituting mens rea. In Bhagwan Das v. Kartar Singh II (2007) CCR 454 (SC) has held that mere harassment due to differences per-se does not attract section 306 r/w 107 IPC and only allegation for not brining adequate dowry would not by itself and without something more attract section 306 IPC. As such, neither dying declaration nor testimonies of PWs has proved that deceased was instigated by the accused to commit suicide.
59. Suicide is part of human life and human beings commit suicide for various reasons and the observation of the Hon'ble High Court of Delhi in case titled 173(2010) DLT 244, Narender Singh Arora v. State (Govt. of NCT Delhi) & Ors. is material as under:
Suicide is a known phenomenon of human nature. Suicides are committed by living human beings for various reasons, some are not able to bear the normal stresses which are common in life. Some are not able to cope up with the circumstances in which FIR No. 373/2011 State Vs. Mahesh Bansal etc. 58/60 they are placed. Some commit suicide because of frustration of not achieving the desired goals. There are many cases where students commit suicide because they failed to achieve certain percentage of marks. Some commit suicide because they are not able to retain top position, some commit suicide because they are not able to cope with the demands of life. Some commit suicide because they suffer sudden loss, some commit suicide out of fear of being caught. There are various reasons for which suicides are committed by men and women. All suicides are unnatural deaths. Suicide is a complex phenomenon. One, who commits suicide, is not alive to disclose as to what was going on in his or her mind when he or she committed suicide. There is no presumption that every suicide committed by a married woman in her in-laws' house or at her parents' house has to be because she was suffering harassment at the hands of her husband or her in- laws.
60. In view of the abovesaid law, it stands proved that the reason of suicide of deceased in this case were minor issues which could not be brought into the category of instigation. There may be any reason or over sensitiveness of the deceased that she got annoyed on minor issues and committed suicide, but there is no evidence that accused had mens-rea to compel or instigate her to commit this suicide and, in the absence of any evidence, merely presumption of section 113A of Evidence Act is also of no use. As such, this offence u/s 306/34 IPC also could not be proved against the accused persons.
61. Keeping in view of the facts and circumstance of this case, I am of the considered opinion that the prosecution has failed to prove beyond doubt that accused persons treated the deceased with cruelty or harassment for demand of dowry or that they instigated her to commit suicide or committed her murder or that she died on account of harassment of the accused for dowry FIR No. 373/2011 State Vs. Mahesh Bansal etc. 59/60 demands. It is the fundamental rule of criminal jurisprudence that the accused is entitled for benefit of doubt if allegations are not proved, which is also necessary to prevent the miscarriage of justice. All the accused persons are entitled for benefit of doubt and all are hereby acquitted of all charges. Sureties discharged. Originals, if any be released. Endorsement, if any be cancelled.
62. Accused have furnished their sureties u/s 437A CrPC and the same are accepted with direction to the accused persons to appear before the Appellate Court, in case of filling of any appeal within the period of 6 months.
63. File be consigned to Record Room.
Digitally signed by DEVENDRA DEVENDRA KUMAR
KUMAR Date: 2022.07.23
16:29:47 +0530
Announced in open court (Devender Kumar)
today on 23.07.2022 Additional Sessions Judge-02
(NE): Karkardooma Courts, Delhi
FIR No. 373/2011 State Vs. Mahesh Bansal etc. 60/60