Vikas & Ors. vs State (Nct Of Delhi) & Anr.
2016 Latest Caselaw 377 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 15th OCTOBER, 2015
                                  DECIDED ON : 18th JANUARY, 2016

+                           CRL.A. 86/2007

       VIKAS & ORS.                                       ..... Appellants

                            Through :   Mr.Ravinder Chadha, Advocate
                                        with Mr.Jagdish Prasad, Advocate.
                            versus

       STATE (NCT OF DELHI) & ANR.                        ..... Respondents

                            Through :   Mr.Sanjeev Sabharwal, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 12.01.2007 of learned Addl.

Sessions Judge in Sessions Case No.179/2006 arising out of FIR

No.262/2002 PS Bhajanpura by which the appellants were convicted

under Sections 498A/306 IPC, they have preferred the instant appeal. By

an order dated 20.01.2007, they were sentenced to undergo RI for three

years with fine `10,000/- each under Section 498A IPC and RI for seven

years with fine `15,000/- each under Section 306 IPC. Both the sentences

were to operate concurrently.

2. Briefly stated, the prosecution case as projected in the

charge-sheet was that on 15.07.2002, Sanju (since deceased), Vikas‟s

legally wedded wife committed suicide at her matrimonial home at C4/19,

Yamuna Vihar, Delhi. She was married to him (Vikas) on 03.12.1998.

The police machinery came into motion on getting information vide DD

No.21A (Ex.PW-14/A) on 15.07.2002 at 09.55 p.m. in which the

informant told that his sister had died suddenly at C4/19, Yamuna Vihar,

Delhi. The investigation was assigned to SI Kanchan Lal, who along with

Const.Tej Vir went to the spot. After recording statement of Mahesh

Chand, victim‟s father, police of PS Bhajanpura was directed by the Sub-

Divisional Magistrate (PW-16 P.C.Jain) to proceed according to law. A

case under Sections 498A/304B IPC was registered on 16.07.2002. In the

statement (Ex.PW-2/A), victim‟s father gave detailed account as to how

and under what circumstances, her daughter Sanju was harassed and

tortured physically and mentally by her in-laws on account of dowry

demands. Post-mortem examination on the body was conducted.

Statements of the witnesses conversant with the facts were recorded. The

appellants; Bal Kumar (victim‟s father-in-law) and Vipin (her brother-in-

law) were arrested. Exhibits collected during investigation were sent for

examination to Forensic Science Laboratory. Upon completion of

investigation, a charge-sheet was filed against all the accused persons for

committing offences under Sections 498A/304B IPC. To establish its

case, the prosecution examined twenty-four witnesses. In 313 Cr.P.C.

statements, the accused persons denied their involvement in the crime and

pleaded false implication. They categorically stated that the victim had

committed suicide due to depression as she was suffering from various

ailments even before her marriage. DW-1 (Yogender Kumar), DW-2

(Satya Pal), DW-3 (Mahender Pal), DW-4 (Chater Pal) and DW-5

(Pramod Tripathi) appeared in defence. After considering the rival

contentions of the parties and on appreciation of the evidence, the Trial

Court, by the impugned judgment, acquitted Bal Kumar and Vipin of all

the charges. It is relevant to note that State did not challenge their

acquittal. The appellants were convicted under Sections 498A/306/34 IPC.

Again, State did not file any appeal to challenge the appellants‟ acquittal

under Section 304B IPC. Aggrieved by the impugned judgment, the

instant appeal has been preferred by the appellants.

3. I have heard the learned counsel for the parties and have

examined the record. Admitted position is that Sanju was married to Vikas

on 03.12.1998. After the marriage, she lived at her matrimonial home and

a female child was born to her out of this wedlock at St. Stephen Hospital.

It is also not in dispute that on 15.07.2002, Sanju died otherwise than

under normal circumstances by committing suicide in the matrimonial

home. It is informed that presently the daughter born to the parties is

around 16 years and is in the custody of her father. Copy of judgment

dated 28.10.2005 of learned Guardian Judge is on record whereby Mahesh

Chand, the maternal grand-father of the child was denied her custody.

4. Since Sanju had expired under suspicious circumstances in

the matrimonial home within seven years of her marriage, Section 304B

IPC was invoked; there being allegations of physical and mental

harassment to the victim by her in-laws on account of insufficiency of

dowry. The Trial Court, was, however, of the view, that the victim was

never harassed on account of dowry demands and there was no nexus

between her death and dowry demands. Specific findings were recorded in

the impugned judgment that `25,000/- given by way of a cheque by the

victim‟s father to her son-in-law Vikas in January, 1999 were not in

connection with the demand of dowry. Admittedly, victim‟s father had

given a cheque No.787862 dated 30.01.1999 to Vikas, who deposited it in

the bank account of M/s.Ganpati Enterprises on 13.02.1999. The Trial

Court was of the view that this amount was obtained by Vikas being in

need of white money to run the business under the name and style of

M/s.Ganpati Enterprises. The amount given within two months of the

marriage after a firm was started by Sanju‟s husband is suggestive of the

fact that it was in the form of help of the son-in-law and was not paid due

to dowry demands. The Trial Court went to the extent of initiating

proceedings against Vikas and Vivek for circumventing the law in this

regard. Income tax authorities were directed to take necessary action

against the defaulters in creating white money to defraud the revenue.

They were further directed to revise their income tax returns as per law.

The Trial Court further observed that PWs - Meera, Mahesh

Chand, Deepak Gupta and Subhash seem to have deposed facts regarding

ill treatment of Sanju for dowry on account of psychological hatred

against the accused persons. Consequently, the Court was of the definite

view that depositions of the aforesaid witnesses, concerning dowry

demands by the accused persons were not correct. Similarly, the Trial

Court did not believe the prosecution witnesses if any dowry demand was

raised by the accused persons after the birth of the female child or

`50,000/- or computer was demanded in „Chhoochhak‟. The Court

concluded that "Chhoochhak, is a custom prevalent in Northern India.

When a child is born to a lady, her parents give gifts to her husband, in-

laws, her child and to the lady herself. These customary gifts are neither

as regard of the marriage nor on account of reason or motive for

solemnisation of the marriage. Hence, giving and taking gifts in

„Chhoochhak‟ would not be fall within the ambit of definition of dowry

given in Section 2 of the Act." Reliance was placed on the decision of the

Apex Court in Crl.A.No.1613/2005 decided on 05.01.2007. Apparently,

the Trial Court did not adhere to the version of the material prosecution

witnesses that there was dowry demand by the accused persons and on

account of its non-fulfilment, Sanju was treated with cruelty; physically or

mentally. It has come on record that during her stay at the matrimonial

home, she was admitted at Ganga Ram Hospital and Vimhans Hospital for

treatment and the entire medical expenses were borne by the accused

persons. No contribution whatsoever was made by her parents at any

stage. Nothing has surfaced to find out if for any ailment, Sanju was ever

treated at any specific hospital by her parents during her visit to them.

5. The occurrence took place on 15.07.2002 when suddenly the

victim took an extreme step to bring an end to her life by hanging. She did

not suffer any fresh injuries on her body that day. In the post-mortem

examination report (Ex.PW-23/A), PW-23 (Dr.Gaurav Vinod Jain) did not

find any visible external injury on the body. The injuries found on the

body were „old‟. Injuries described under heading „A‟ were about more

than one month „old‟ produced by burn injuries; injuries under heading

„B‟ were about one week old and produced by blunt force. Apparently, no

physical beatings were given to the victim on the day of occurrence.

Testimony of PW-7 (Anita Arora) is very crucial to ascertain the state of

mind of the victim that day. She testified that the victim had joined her

school Tiny Tots Play Way School at House No.C-6/348, Yamuna Vihar

for a short period of about fifteen days w.e.f. 03.07.2002. She left the

school on 15.07.2002. During her employment, she found her hard-

working, active, alive and affectionate to the children. She was very social

and used to remain happy; she was liked by the children. She further

elaborated that on 15.07.2002, she had come to the school at about 08.30

a.m. and had attended her duty and children willingly; she was cheerful.

She left the school at about 01.00 p.m. On 17.07.2002, she came to know

about her death. Needless to say that in the morning hours during her

presence at Tiny Tots Play Way School, there was no inkling that the

victim would commit suicide. PW-7 (Anita Arora) did not state if during

these fifteen days, she had ever complained about the conduct and

behaviour of her in-laws or about physical or mental torture to her. Even

on the day of occurrence i.e. 15.07.2002, she had attended her duties as

usual and returned to home at 01.00 p.m. At around 05.30 p.m. on that

day, she was no more. The Investigating Officer was required to ascertain

as to what really had occurred / happened during this period compelling

the victim to take the extreme step. No evidence has come on record to

show if during this period the accused persons implicated in this case were

present at the matrimonial home or had played any specific role in

physical or mental harassment to the victim compelling her to commit

suicide. None from her neighbourhood was examined to find out as to

what was the situation prevailing at the matrimonial home that evening or

if they had heard any hue and cry or quarrel taking place in the house that

time. No role whatsoever has been assigned to any of the individuals in

instigating or abetting the victim to commit suicide.

6. Ingredients of Section 107 IPC defining „abetment‟ are not

attracted and proved in this case. There is no proof of direct or indirect

acts of incitement to the commission of suicide. Merely on the allegations

of harassment without their being any positive action proximate to the

time of occurrence on the part of the accused which led or compelled the

person to commit suicide, conviction in terms of Section 306 IPC is not

sustainable.

7. In „State of West Bengal vs. Orilal Jaiswal & Anr.‟ 1994 (1)

SCC 73, Supreme Court held :

"....this Court has cautioned that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it appears to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and difference in domestic life quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.

XXX XXX XXX

21. The intention of the Legislature and the ratio of the cases decided by this court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide."

8. In fact, it was not the case of the prosecution that there was

abetment on the part of the accused persons to provoke the victim to

commit suicide. The Trial Court did not believe the prosecution case for

commission of offence under Section 304B IPC. Since there was no active

role played by the accused persons on the day of occurrence, it cannot be

inferred that they had abeted the crime. It is relevant to note that on the

same set of evidence co-accused Bal Kumar and Vipin were acquitted of

the charges. Conviction under Section 306 IPC thus can‟t be sustained.

9. Regarding Section 498A IPC, the Trial Court was of the view

that the victim was not harassed on account of dowry demands.

Considering the injuries described in the post-mortem examination report

(Ex.PW-23/A) proved by PW-23 (Dr.Gaurav Vinod Jain) and discharge

report (Ex.PW-15/A) of Vimhans Hospital, the learned Judge concluded

that the victim was treated in inhuman manner at her matrimonial home

and that wilful conduct of the appellants fell within the mischief of

Section 498A IPC which drove the victim to commit suicide. The Trial

Court relied on the testimonies of PWs - Meera, Mahesh Chand, Deepak

Gupta, Subhash, Neelu and Brij Bala in this regard.

10. It is pertinent to mention that during her stay at the

matrimonial home after her marriage on 03.12.1998 till her death on

15.07.2002 no complaint whatsoever was lodged by the victim or her

parents against any of the appellants for treating her with cruelty either

physical or mental. Nothing has emerged if any „panchayat‟ was ever

organised to raise any such issue. At no stage, the victim was medically

examined for the „beatings‟ allegedly given to her during her stay at the

matrimonial home. The Investigating Agency did not collect any call-

details record to ascertain if on any particular date any conversation had

taken place between the victim and her parents as alleged. The

Investigating Officer did not associate any independent witness from the

neighbourhood to find out as to what was the attitude and conduct of the

appellants towards the victim during the relevant period. Appellants‟

conviction is based primarily on the statements of victim‟s parents and

close relatives, who have made vital improvements in their depositions

before the Court and have been duly confronted with their previous

statements recorded during investigation. Undisputably, the Trial Court

did not find their evidence sufficient and reliable to base conviction

against Bal Kumar and Vipin, who were acquitted of the charges. After

the unfortunate incident of suicide on 15.07.2002, all the family members

were implicated for causing victim‟s death. FIR was lodged on

16.07.2002 on the statement (Ex.PW-2/A) of victim‟s father - Mahesh

Chand in which he levelled general allegations against the in-laws of the

deceased. On perusal of their Court statements, it reveals that the victim

used to stay mostly at her in-law‟s house. Only on certain occasions, she

had visited her parents‟ house for short duration; she did not stay for

unusual period at her parents‟ house. The victim‟s husband used to go at

her parents‟ house to take her back to the matrimonial home. During her

stay at the matrimonial home, she became pregnant and a female child

was born to her at St. Stephen Hospital. She was taken due care by her in-

laws and after discharge, she returned to her matrimonial home. It is

informed that the female child is around 16 years at present and she

continues to be in the company of her father. As observed above, the

Guardian Judge declined to handover the custody of the child to Mahesh

Chand, Victim‟s father. Statement of PW-7 (Anita Arora) has already

been discussed where the victim had joined as a teacher in Tiny Tots Play

Way School on 03.07.2002. She did not inform Anita Arora or any other

teacher at the school about any physical or mental harassment to her at the

hands of her in-laws. Even on the day of occurrence on 15.07.2002, she

had attended her duties at the said school. During her employment there,

she was hard-working and affectionate to children. She was very social

and used to remain happy. PW-7 did not notice any visible injury on her

body during her duty there.

11. PW-1 (Meera), victim‟s mother gave vague statement

alleging that Krishna Devi - victim‟s mother-in-law had burnt her with a

„chimta‟ and Vivek had caused burns to her with a hot pressure cooker. It

was not elaborated as to on what specific date, the burn injuries were

caused, and if so, on which body part. No complaint about such horrible

incident was lodged by the victim and her parents; she was not even

medically examined. Nothing is on record to show if any treatment was

given to her for the burns allegedly caused to her with „chimta‟ or

„pressure cooker‟. Victim‟s parents never provided any medical treatment

to her at their place of residence for any ailment. No other incidence has

been given by her as to when the victim was given physical beatings /

torture. On 10/11.07.2002 allegedly she had received a telephone call

from the victim informing her that her in-laws would kill her and she

should be taken to her house. Despite getting the alleged distress call,

none of the family members from the parents side of the victim went to

her matrimonial home. PW-2 (Mahesh Chand) accused Krishna Devi and

Vivek for giving her beatings with „chimta‟ and causing burns with hot

„pressure cooker‟. No other specific role was attributed to any of the

accused persons for causing beatings to her. None of the injuries was

caused in his presence. He also did not specify as to when the injuries

were caused and on what part of the body. PW-3 (Neelu) did not testify if

the victim was caused burn injuries by Krishna Devi and Vivek. Statement

of PW-4 (Deepak Gupta), victim‟s brother is silent if he had come to

know about any such burn injuries at the hands of Krishna Devi and

Vivek. So are the statements of PW-8 (Subhash) and PW-11 (Brij Bala).

12. It is true that in the post-mortem examination report (Ex.PW-

23/A), certain injuries were noticed on the victim‟s body. The injuries

described under heading „A‟ are puckered scars on arm, leg / thigh of the

victim. The doctor opined that these were about more than a month old

and were produced by burns. The Trial Court noted that due to

inadvertence instead of recording „year‟, „month‟ was mentioned therein.

Injuries under heading „B‟ were about a week old and were produced by

blunt force. Injuries under heading „B‟ were bruises on the forearm. In the

cross-examination, the doctor admitted that the victim was suffering from

acute depression and in case of fall while working in kitchen, burns

injuries were possible. Injuries mentioned under heading „B‟ were also

possible due to fall from staircase.

13. In the absence of any cogent and clinching evidence, it

cannot be inferred that the injuries recorded in the post-mortem

examination report (Ex.PW-23/A) were authored by the in-laws of the

victim. It is unclear as to when the victim sustained these injuries, and if

so, at whose hands. The prosecution witnesses did not attribute any

specific role to any other accused persons except Krishna Devi and Vivek

for. Possibility of the victim sustaining injuries at the time of suffering

from depression cannot be ruled out. As noted above, PW-7 (Anita Arora)

at whose school the victim had worked for about fifteen days did not talk

about any such injuries as mentioned in heading „B‟. Admitted position is

that victim was admitted for treatment at Ganga Ram Hospital and

Vimhans Hospital. All the medical expenses were borne by her in-laws.

Her parents were duly informed at the time of her admission in the

hospitals and they had visited her there. They had even stayed with her

during admission in the hospitals. PW-15 (Dr.Vikas Mohan Sharma) had

medically treated the victim when she was admitted there on 06.05.2002

with the alleged history of headache, episode of unresponsive behaviour,

shouting, inability to speak after family quarrels. She was discharged on

08.05.2002 vide discharge summary (Ex.PW-15/A). He admitted in the

cross-examination that there was adjustment disorder with convulsion

symptoms as per his diagnosis. In adjustment disorder, the patient has a

difficulty in adjusting with his surroundings and situations. The symptoms

which can be noticed are restlessness, anxiety, emotional and behavioural

symptoms. The patient can become agitative and furious. Physical

symptoms can also be part of increased anxiety like a severe headache and

vomiting. There were episodes of the patient getting agitated over staff

during her admission. She was unable to take food and her sleep was

disturbed. There was intractable vomiting and headache. As per report of

Ganga Ram Hospital, there was history of psychiatric illness known case

of depression also. He further admitted that in comparison to general

population, patients suffering from such like adjustment disorder are at

higher risk of self harm / suicide. It has also come on record that during

her admission at Vimhans Hospital, the victim had confined herself in a

room and it had to be broken open. The accused had paid `500 as

damages for the broken door. Under these circumstances, the victim

sustaining minor superficial bruises or injury on her body cannot be ruled

out. At no stage during her admission, the patient / victim informed the

examining doctors if she was ever given physical beatings by any of her

family members on a particular date. Merely because in the discharge

summery, it is recorded that the doctor had discussed with the patient

during OPD follow-up the issue of independence in family, more attention

from her husband and less family intrusion, it cannot be inferred that she

was treated with physical cruelty by the accused persons. Merely because

Krishna Devi purportedly was of dominating character, it did not mean

that she used to cause physical injuries with „chimta‟ to the victim. On the

same set of evidence Bal Kumar and Vipin were given clean chit.

14. PW-8 (Subhash) in the cross-examination admitted that his

niece Sanju used to remain ill; and get treatment for occasional ailments

before marriage. This fact was denied by her parents. None of the doctors

informed the Court that they had advised victim‟s parents to take her to

their home as she was fearful and was terrorised by her in-laws.

15. In the light of above discussion, there is no cogent and

reliable evidence on record to establish that the victim Sanju was

maltreated, beaten or tortured by the appellants during her stay in the

matrimonial home. The appellants deserve benefit of doubt. The appeal is

accordingly allowed. Conviction and sentence recorded by the learned

Trial Court are set aside. Bail bonds and surety bonds of the appellants

stand discharged.

16. Trial Court record be sent back forthwith with the copy of the

order. A copy of the order be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE JANUARY 18, 2016 / tr