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Section 498A in The Indian Penal Code
The Indian Penal Code
Section 306 in The Indian Penal Code
The Code Of Criminal Procedure, 1973
Section 34 in The Indian Penal Code

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Delhi District Court
State vs : (1) Vishesh Chaudhary, on 16 May, 2008
Author: Sh. Bharat Parashar
                                                   1

      IN THE COURT OF SH. BHARAT PARASHAR, ASJ:FTC:ROHINI:DELHI

SC No.: 29/06

STATE VERSUS                :               (1) VISHESH CHAUDHARY,
                                                S/O SH. BHARAT BHUSHAN,
                                                R/O QU-85C, PITAM PURA,
                                                DELHI.

                                            (2) AMIT,
                                                S/O SH. BHARAT BHUSHAN,
                                                R/O QU-85C, PITAM PURA,
                                                DELHI.

                                             (3) PARICHEY,
                                                S/O SH. BHARAT BHUSHAN,
                                                R/O QU-85C, PITAM PURA,
                                                DELHI.

                                            (4) BHARAT BHUSHAN,
                                                S/O LATE SH. DURGA DASS,
                                                R/O QU-85C, PITAM PURA,
                                                DELHI.

                                            (5) SMT. NIRMAL CHAUDHARY,
                                                W/O SH. BHARAT BHUSHAN,
                                                R/O QU-85C, PITAM PURA,
                                                DELHI.

FIR NO.: 126/05.
PS    : PRASHANT VIHAR.
U/S    : 498A/306/34 IPC.


DATE OF INSTITUTION IN SESSIONS COURT:20-1-2006.
DATE ON WHICH JUDGMENT RESERVED:25-4-2008.
DATE ON WHICH JUDGMENT PRONOUNCED 16-5-2008.


                                          JUDGMENT

Briefly stated the case of the prosecution as unfolded by the report U/S 173 Cr.P.C. is as under:-

"One Dr. Subhash Arora of Shalimar Bagh, Delhi married his daughter Kajal with accused Vishesh Chaudhary on 21.11.1997 as per Hindu rites and ceremonies. After the marriage Kajal shifted to her matrimonial home which was in Shalimar Bagh itself and where she started residing with her husband, father-in-law Bharat Bhushan, mother-in-law Nirmal Chaudhary and two younger brother-in-law, namely, Parichary and Amit. After few months of the marriage Kajal 2 went to USA along with her husband and resided over there for a period of about three years. Two children were also born to the couple while they were staying at USA. In the year 2001 Kajal and Visesh Chaudhary returned to India and in July, 2004 they shifted to a separate house in Sector-

15, Rohini, Delhi. However, the matrimonial life of Kajal during all this period was not smooth and allegedly on a number of occasions, the matters were also sorted out by the parents of Kajal with the accused persons. The accused persons were allegedly not happy with the dowry given at the time of marriage or other gifts which were given by the parents of Kajal on different occasions such as the birth of the two children to the couple and on other festivals. Finally, on 12-1-2005 Kajal was brought to her parental home by her parents and where she stayed for a period of three days i.e till 15-1-05. Vishesh Chaudhary thereafter took her back with the assurance that she will not be harassed any longer over there.

However, on 31-1-05 the parents of Kajal received a telephonic information that their daughter Kajal has committed suicide by hanging. Accordingly, the matter came to be reported to the police. On the basis of statement of Dr. Subhash Arora, the father of Kajal a case for the offence U/S 498A/306/34 IPC was registered at PS Prashant Vihar. Investigation in the matter was taken over by ASI Jai Bagwan. After carrying out the inquest proceedings the postmortem examination was got conducted upon the dead body of Kajal. Accused Vishesh Chauhary was arrested in this case but the other accused persons obtained anticipatory bail order and were only 3 formally arrested in this case. A piece of paper allegedly in the hand of Kajal was also recovered from near the body. However, no admitted piece of handwriting or signatures of deceased could be made available to the IO so that the writing on the note could be compared with the admitted handwriting of deceased Kajal . Thus, upon completion of necessary further investigation charge sheet was filed against all the accused persons in the court for the offence under Section 498-A/306/34 IPC."

Upon committal of the case to the Court of Sessions charge for the offence under Sections 498-A/306/34 IPC was framed against all the accused persons by the then Ld. Predecessor of this court. Accused persons however pleaded not guilty to the charge and claimed trial.

Prosecution thereafter in order to prove its case examined eight witnesses. They thereafter examined six witnesses in their defence.

PW1 Dr. Subhash Arora was the father of deceased Kajal and the complainant on whose statement the present case came to be registered. In his deposition, he reiterated the prosecution story while proving his complaint lodged with the police.

PW2 Varun Arora was the brother of deceased Kajal. He too corroborated the deposition of his father PW1 Dr. Subhash Arora in material particulars while deposing almost on identical lines.

I shall be discussing in detail the deposition of these two witnesses at a later stage of my judgment.

PW3 HC Joginder was the duty officer PS Prashant Vihar on 9-2- 2005, who had recorded FIR Ex. PW3/A in the present matter.

PW4 HC Sajjan Kumar was the photographer, who had visited the place of incident on the night intervening 31-1-2005 and 1-2-2005. He took nine photographs of the spot and proved them as Ex.PB1 to PB9 and 4 the corresponding negatives as Ex.PA1 to PA9.

PW5 Ct. Suraj Vir Tomar was the DD writer, police post Sector- 16, Rohini, PS Prashant Vihar on the night intervening 31-1-2005 and 1-2- 2005. At about 10.55pm he had received an information from Control Room, NW District on wireless about death of Kajal. He accordingly recorded DD No.54 Ex.PW5/A in this regard and handed over the same to ASI Jai Bagwan for further necessary action.

PW6 Dr. Anil Sandil had carried out the postmortem examination upon the dead body of Kajal at BJRM Hospital vide his report Ex.PW6/A.

PW7 Inspt. Subhash Chand was the Incharge Crime Team, NW District which had visited the spot on the night of incident and after carrying out the inspection gave his report Ex.PW7/A to the IO.

PW8 ASI Jai Bagwan was the IO of the case. In his deposition he reiterated the investigation carried out by him besides proving the various documents/memos prepared by him during the course of investigation.

In their statements U/S 313 Cr.P.C. all the accused persons however stated the case of the prosecution to be false and the prosecution witnesses to be deposing falsely. It was further stated that the parents of Kajal used to interfere in the day-to-day life of the couple and as Kajal was a sensitive lady so Kajal used to get depress and as a result took the extreme step of committing suicide.

DW1 Vishesh Chaudhary was the accused himself, who entered the witness box as a defence witness u/S 315 Cr.PC. In his deposition, he stated that he and Kajal had been living happily after the marriage and had even gone to USA for a period of three years where also they lived happily and two children were born to them. He further stated that when in July, 2001 they returned to India to live with their parents then his in-laws started interfering in their life and used to instigate Kajal to separate away from the family of her in-laws. He further stated 5 that though Kajal was not very enthusiastic to the said proposal but, pursuant to the continuous interference and insistence of her parents he and Kajal finally shifted to a separate house in Sector-15, Rohini, Delhi. He further stated that thereafter Kajal started feeling lonely and often used to get depress and as a result she started suffering from acute headache and depression. He further stated that the father of complainant not only initially himself treated Kajal but, subsequently she even got treatment from Dr.Mehndiratta in GB Pant Hospital. It was further stated that they have been visiting various places during their matrimonial life in India but on account of her depression which was primarily on account of the continous interference by her parents in her matrimonial life that she took this extreme step.

DW2 Bharti Chaudhary was the wife of accused Parichay Chaudhary. She stated that she got married to accused Parichay Chaudhary just about twenty days after the marriage of Kajal with accused Vishesh Chaudhary. It was further stated that her in-laws have never demanded any dowry or insisted for any kind of articles from her parents. She further stated that she along with her in-laws including accused Vishesh Chaudhary and Kajal used to live happily in a joint family. She further stated that nobody ever passed any taunt upon Kajal or harassed her in any manner. She further stated that she never found any unpleasantness ever between Kajal and Vishesh Chaudhary. She thus corroborated the deposition of Vishesh Chaudhary in material particulars. She further stated that Kajal had even taken treatment from GB Pant Hospital for her complaint of headache and pain on left side of her body. She further stated that Kajal even started having fits after she shifted to a separate house along with Vishesh Chaudhary.

DW3 Kamal Kishore was a photographer, who had developed photographs from a CD which was given to him by accused Bharat Bhushan Chaudhary. The said CD Ex.DW3/A and the 37 photographs 6 Ex.DW3/B (1-37) which pertained to some birthday celebrations in the house of accused persons were proved on record by him.

DW4 Dr. MM Mehandiratta was the Professor Neurology, GB Pant Hospital, Delhi. He had examined and given treatment to Kajal at GB Pant Hospital in the year 2003-2004 and he accordingly proved the said record as Ex.DW4/A and B.

DW5 Sudeep Yadav was an Ahlmad of the court of Ld. Civil Judge, Sh. Tarun Yogesh, Tis Hazari Courts, Delhi. He produced the record pertaining to a civil suit no.531/06 titled Dr. Subhash Arora Vs. Vishesh Chaudhary and Others. The certified copy of the Plaint Ex.DW5/A, order dated 18-2-06, Ex.DW5/B, order dated 28-2-06, Ex.DW5/C, order dated 9-3- 06, Ex.DW5/D, order sheet dated 9-3-06, Ex.DW5/E and decree dated 9-3- 06, Ex.DW5/F and order 9-3-06, Ex.DW5/G were placed and proved on record by him.

DW6 Raman Shangari was a colleague of accused Vishesh Chaudhary, who used to work with him in the same office. He claimed to have known the couple since the time of their marriage and stated that they have been living happily with each other and he never found anything abnormal in their relationship. He however stated that once Kajal had told to his wife that she was suffering from some problem of headache. He further stated that later on he came to know that Kajal has committed suicide.

I have heard learned APP as well as complainant Dr. Subhash Arora himself besides ld. defence counsel Sh. BT Singh for all the accused persons at length. Both parties even filed their written submissions.

It was submitted by ld. APP and complainant Dr. Subhash Arora that the accused persons have been subjecting Kajal to cruelty right from the time of her marriage itself primarily on account of insufficient dowry and their lust for more dowry. It was stated that even the parents of Kajal 7 were insulted on a number of occasions on account of insufficient dowry and their inability to fulfill further demands of dowry of the accused persons. It was also stated that for a period of about two years the parents of Kajal were not even allowed to meet her. It was further stated that Kajal was taken to USA despite her reluctance in going over there and even over there she was not allowed to talk to her parents on telephone or to write letters to them. It was further stated that the inability of the parents of Kajal to not to provide a car to the accused persons was also a major reason for subjecting Kajal to harassment. It was further stated that on account of this inhuman conduct of the accused persons Kajal even started suffering from some problem of headache. It was thus stated that on account of this continuous mental and physical torture being meted out to Kajal that she took the extreme step of committing suicide. It was thus stated that in view of the cogent and convincing deposition of PW1 Dr. Subhash Arora and PW2 Varun Arora, the accused persons were clearly liable for subjecting Kajal to cruelty and harassment on account of demand of dowry and thereby abetted the commission of suicide by Kajal. The accused persons were thus prayed to be convicted.

Ld. Counsel for complainant also placed reliance on a number of judgments as follows:

1)        II (1998) CCR 680
          Harjit Singh Vs. State of Punjab.

2)         1998 CRI.L.J 952
           Ram Kumar Vs. State of MP.

3)        AIR 1998 SC 958
          PAWAN KUMAR & ORS. VS. STATE OF HARYANA.

4)        1998 CRI.L.J 2209
         BHAGIRATHIBAI SURJI       BHANUSHALI    &   ORS    VS.   STATE   OF
         MAHARASHTRA

5)        1994 CRI.L.J 2104 (SC)

STATE OF WEST BENGAL VS. ORILAL JAISWAL & ANOTHER

6) 2003 (1) RCR (CRIMINAL) DR. DILIP KUMAR DEKA VS. STATE OF ASSAM.

8

7)        2006(2) RCR (CRL.)
          SAHEBRAO & ANR. VS. STATE OF MAHARASHTRA.

8)        CRIMINAL APPEAL NO.88-SB OF 1991

NACHHATAR SINGH AND OTHERS VS. STATE OF PUNJAB

9) CRIMINAL APPEAL NO.1333 OF 2004 RAJ KUMAR & OTHERS VS. STATE OF MP

10) CRIMINAL APPEAL NO.459-DB OF 1997 KRISHAN KUMAR & OTHERS VS. STATE OF HARYANA

11) CRIMINAL APPEAL NO.1112 OF 1999 M.C. NARAYANA VS. STATE OF KARNATAKA On the other hand learned defence counsel strongly opposed the contentions of learned APP and complainant Dr. Subhash Arora. It was further stated that both PW1 Dr. Subhash Arora and PW2 Varun Arora have made material improvements over their earlier statements made before the IO and this fact itself shows that the entire allegations now levelled during the course of their deposition were an afterthought. It was also submitted that even the prosecution has failed to establish on record the very ingredients of the offence U/S 498A/306 IPC and it cannot be inferred merely on the basis of conjectures and surmises that Kajal was in any manner subjected to cruelty much less on account of demand of dowry. It was further stated that the various photographs as have been placed on record besides certain greeting cards and letters which were exchanged between Kajal and her parents clearly goes to show that her matrimonial life had been quite happy and all these allegations are the result of an afterthought. It was further stated that Kajal was a sensitive lady who, on account of constant interference by her parents had to take a separate residence and thus started feeling lonely and depressed and thereby took the extreme step of committing suicide.

It was thus stated that prosecution has completely failed to establish on record that the accused persons ever subjected Kajal to cruelty or harassment much less on account of demand of dowry or in any manner they abetted the commission of suicide by Kajal. The 9 accused persons were thus prayed to be acquitted.

Ld. Counsel for accused persons also placed reliance on a number of judgments as follows:

1          1995 SUPP (3) SC CASES 731
2          AIR 1998 S.C 958
3          1998 CRI.L.J 2179
4          1998 CRI.L.J 4108
5          AIR 1998 SC 958
6          1991(1) CC CASES HC 27
7          2000 CRI.L.J 328
8          2004(2) JCC 781
9          2006(2) JCC 1134
10         2007(1) LRC 361(SC)
11         2007 CRI.L.J 3420
12         2007 (93) DRJ 760
13         138(2007) DLT 152


I have carefully perused the record along with the written submissions filed by both the parties.

Before I advert on to a discussion or an analysis of the testimony of the various prosecution witnesses examined. It will be worthwhile to have a glance on the provision of Section 498A IPC.

Section 498-A of the Indian Penal Code reads as under : - "Husband or relative of husband of a woman subjecting her to cruelty Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - For the purpose of this section "cruelty" means -

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman : or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or 10 any person related to her to meet such demand."

Under Explanation (a) the cruelty has to be of such a gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.

Explanation (b) to Section 498-A provides that cruelty means 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.

Explanation (b) does not make each and every harassment a cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet any unlawful demand of property or valuable security. Mere harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that it is cruelty and this is made punishable under the section.

In the decision reported as Smt. Sarla Prabhakar Waghmare Vs State of Maharashtra & Ors 1990(2) RCR 18, the Bombay High Court had observed that it is not every harassment or every type of cruelty that would attract Section 498A IPC. Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands.

Similar view was taken by the Punjab & Haryana High Court in the decision reported as Richhpal Kaur Vs State of Haryana and Anr. 1991(2) Recent Criminal Reports 53 wherein it was observed that offence under Section 498-A IPC would not be made out if beating given to bride by husband and his relations was due to domestic disputes and not on account of demand of dowry.

11

While interpreting the provisions of Section 304-B, 498-A,306 and 324, IPC in the decision reported as State of HPV Nikkur Ram and Ors 1995(6) SCC 219 the Supreme Court observed that harassment to constitute cruelty under explanation (b) to Section 498-A IPC must have nexus with the demand of dowry and if this is missing the case will fall beyond the scope of Section 498-A IPC.

It is thus clear from the reading of Section 498-A IPC and the afore-noted judicial pronouncements that the pre-condition for attracting the provisions of Explanation (b) to Section 498-A IPC is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the women without any nexus with the demand then such a cruelty will not be covered under explanation (b) to Section 498-A IPC. It may be a cruelty with in the scope of Hindu Marriage Act, 1995 as held by the Supreme Court in the decision reported as Shobha Rani Vs Madhukar Reddy AIR 1998 SC 121. In the said case, it was observed that cruelty under Section 498-A IPC is distinct from the cruelty under Hindu Marriage Act, 1955.

It is in the light of the aforesaid interpretation to Section 498A IPC as has been laid down in a number of cases by the higher courts of the land, it is to be seen whether the conduct of the accused persons as alleged by the complainant PW1 Dr. Subhash Arora and PW2 Varun Arora in their deposition amounts to cruelty within the meaning of Section 498A IPC or not. To have a better view of the allegations so levelled by the two star witnesses of the prosecution, it will be worthwhile to recapitulate the various allegations as have been stated by them in their deposition.

I propose to first deal with all such allegations/averments individually and later on comprehensively at a later stage of my judgment.

12

PW1 DR. SUBHASH ARORA

i) Soon after 10/15 days of marriage i) The allegations are general in the accused persons started nature. The specific details of any harassing Kajal mentally as well as particular incident of cruelty or physically and also gave beating to harassment are missing. No specific Kajal for bringing less dowry. This demand has been stated to. Thus continued till her death. the allegations do not constitute any offence either under explanation '(a)' or '(b)' to Section 498A IPC.

ii) After about two months of the ii) Only demand has been stated marriage, accused Vishesh to with no averments of any cruelty Chaudhary and her parents meted out to Kajal in that regard. demanded 20-25 tolas of gold or The allegations does not constitute rupees two lakhs. any offence either under explanation 'a' or 'b' to Section 498A IPC.

iii) After six months of marriage Kajal iii) Again the allegations are and her husband Vishesh general in nature and do not Chaudhary went to USA though, constitute any offence either under Kajal was not willing to go to USA. At explanation 'a' or 'b' to Section USA she was not kept properly and 498A IPC.

was not allowed to talk on
telephone with me (PW1 Dr.
Subhash Arora) or other          family
members.

iv) Before leaving for USA Vishesh        iv) The sale of two wheeler scooter
Chaudhary sold the two wheeler            by    Vishesh     Chaudhary      and
scooter given to          him in the      demand of car from the parents of
marriage by the parents of Kajal          Kajal at the time of leaving for USA
and he was insisting for a car and        i.e after about      six months of
which demand could not be                 marriage does not constitute any
fulfilled by the parents of Kajal.        offence either under explanation 'a'
                                          or 'b' to Section 498A IPC. As there
                                          are no allegations/averments of
                                          any accompanying cruelty or
                                          harassment meted out to Kajal.
                                        13




v) On the birth of first child, namely,
Trisha to the couple on 7-5-99 at          v&vi)    The    gifts   given   were
USA, the parents of Kajal went to          admittedly customary gifts as are
the house of parents of accused            given usually in Indian families on
Vishesh Chaudhary in Delhi along           the birth of a child by the parents of
with Rs.5100/- in cash, dry fruits and     the daughter to the in-laws of their
clothes of family members but the          daughter. The misbehaviour or
family    members         of     Vishesh   demand as stated to by the
Chaudhary       did     not     behave     accused persons was with the
properly and abused them stating           parents of Kajal and there is no
that they have brought such a              averment of there being any
mere amount and as to what they            misbehaviour cruelty or harassment
will do with the wealth in their           to Kajal. Even otherwise Kajal at
possession.                                that time was admittedly in USA
                                           and thus no cruelty or harassment
vi) At the time of birth of second         could have been meted out to her
issue, namely, Vansh on 8-12-00 in         by the accused persons staying in
USA, the parents of Kajal took             India. Once again the averments
RS.11,000/-, sweets, clothes for the       does not constitute any offence
family members of Vishesh at their         either under explanation 'a' or 'b' to
house in Delhi and again the               Section 498A IPC.
parents of Vishesh Chaudhary did
not     accept       the   same    and
demanded Rs.51,000/- cash, thirty
tolas of gold, dry fruits and clothes
for all relatives but the parents of
Kajal did not fulfill the demand and
rather gave a sum of Rs.21,000/-
cash, 10 tolas of gold and clothes
for all relatives as per their capacity
and at that time accused Parichay
and Amit abused them saying that
despite their directions to not to
come to their house why they have
come like 'beggars' and they have
not fulfilled their demands.
vii)  The   parents    of   Vishesh        vii)       Admittedly, the threat of
Chaudhary used to threaten PW1             divorce was given to complainant
Dr. Subhash Arora that they will get       Dr. Subhash Arora, the father of
divorce done between Vishesh               Kajal and not to Kajal. Moreover,
Chaudhary and Kajal.                       the allegation is general without
                                           any specific details and there is no
                                           averment that any cruelty or
                                           harassment in that regard at that
                                           time was meted out to Kajal or any
                                           demand of dowry was made. The
                                           allegations does not constitute any
                                           offence either under explanation 'a'
                                           or 'b' to Section 498A IPC.
                                     14

viii) On one occasion PW1 Dr.           viii) Once again a general nature of
Subhash Arora talked to Kajal at        allegation with no details of nature
USA on phone and she stated that        of instigation or what was the
parents of Vishesh Chaudhary used       consequence of the said alleged
to instigate Vishesh Chaudhary          instigation which was allegedly
against her parents and this is not     made to Visesh Chaudhary in USA
good for future.                        by his parents in India. The
                                        allegations does not constitute any
                                        offence either under explanation 'a'
                                        or 'b' to Section 498A IPC.
___________________________________     __________________________________
                                        ix) The allegations on the face of it
ix) After the arrival of Vishesh        does not inspire          confidence.
Chaudhary and Kajal in July, 2001       Admittedly, after a gap of about
the parents of Kajal were not           two years when the relative of
allowed to meet Kajal for a period      Kajal, namely, Minakshi allegedly
of two years and she also was not       went to meet Kajal no one stopped
allowed to visit    her parents on      her from meeting Kajal. Thereafter,
various occasions and festivals such    when the parents and brother of
as       "rakshabandan"          and    Kajal went to meet her they were
"bayadooj",     even though they        allowed to meet her and Kajal was

were residing in the same locality in even allowed to go to her parental Shalimar Bagh. house along with them. These allegations will also appear to be without any basis from the other nature of evidence which has been led on record by the accused persons as regards the participation of the parents and brother of Kajal in the family functions of the accused persons even when Kajal was not present in India. The same will be further discussed seen and analyzed at a later stage of my judgment. There does not appear to be any reason as to on what account Kajal was not permitted to meet her parents upon her return to India and that too for a long period of two years. There is nothing on record as to why during this period the parents of Kajal did not try to meet her or did not make any complaint to the police in this regard. Even otherwise there is no averment that during those two years there was any demand of dowry and consequent to non fulfillment of the same Kajal was not allowed to meet her parents. The allegations thus does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC.

15

x) In July, 2004 Kajal and Vishesh x) Again the allegations of Chaudhary shifted to a separate harassment and demands are house in Sector-15, Rohini, Delhi but general in nature lacking any Kajal was harassed and demands details of any specific incident. The were made continuously. allegations does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC.

xi) In December, 2003 Minakshi, a xi) The allegations regarding visit of relative of PW1 Dr.Subhash Arora Minakshi, a relative of Kajal does went to meet Kajal and upon not constitute any offence either seeing her Kajal wept bitterly but under explanation 'a' or 'b' to did not disclose anything to Section 498A IPC. It has been Minakshi but Minakshi noted that merely stated that Kajal wept Kajal has become thin like a bitterly upon seeing her cousin skeleton. Thereafter, PW1 Dr. Minakshi. It has further been stated Subhash Arora and his son Sumit that Minakshi found Kajal to be thin Arora went to the shop of Bharat like a skeleton. Moreover, the Bhushan Chaudhary in Shalimar prosecution did not examine Bagh and complained to him about Minakshi and in fact she was not the condition of Kajal and upon even cited as one of the witnesses which accused Bharat Bhushan in the prosecution list of evidence.

Chaudhary and Amit both stated Thus, this piece of evidence "KANGLON KI LADKI KI YAHI HALAT assumes the nature of hearsay KI JAATI HAI, TUMSE JO BANTA HAI evidence and cannot be relied WHO KAR LO". upon. Furthermore, when complainant Dr. Subhash Arora and Sumit Arora went to meet accused Bharat Bhusan and Amit at their shop then their alleged taunt "KANGLON KI LADKI KI YAHI HALAT KI JAATI HAI, TUMSE JO BANTA HAI who KAR LO" even if presumed to be true does not itself constitute any offence either under explanation 'a' or 'b' to Section 498A IPC. There is no allegation of any cruelty having been meted out to Kajal and even if it is presumed for the sake of arguments that Kajal had became thin like a skeleton then also it cannot be presumed merely on the basis of conjectures and surmises that she was being treated with cruelty or was being subjected to harassment by the accused persons or that she had become thin like a skeleton on account of any such cruelty or harassment. The allegations does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC.

16

xii) On the next day the parents of xii) The allegations in the overall Kajal went to the house of Kajal and facts & circumstances of the where accused persons were present case does not inspire called. Upon seeing her parents, confidence and even otherwise Kajal wept bitterly and upon seeing lacks any details as to in what her condition the parents of Kajal manner Kajal was being treated stated that they want to call the with cruelty. police but Kajal stopped them Thus, in the absence of stating that the accused persons any specific details of cruelty or will kill her and will not leave her demand made on this occasion alive if the police is called and which have also not been spelled thereafter the parents and brother out by the witnesses the same does of Kajal fell on the feet of accused not constitute any offence either persons assuring that they will try to under explanation 'a' or 'b' to fulfill their demands but their Section 498A IPC. daughter should not be harassed. It will be worthwhile to point They also requested that they be out over here that the witnesses did allowed to keep their daughter for not state that any specific demand sometime and upon which Kajal was made on this occasion and was sent to live with them for a they rather on their own fell down period of three months. on the feet of the accused persons assuring that they will try to fulfill their demands but their daughter should not be harassed. The further conduct of the accused persons when they allowed Kajal to go along with their parents for a period of three months or so also cannot be lost sight of when earlier the parents of Kajal stated that they were not allowed to meet Kajal for a period of two years or so.

17

It will be worthwhile to mention over here that while appreciating the evidence in such type of cases involving matrimonial disputes the courts has to be on its guard to not to be swayed by the general and bald nature of allegations which are bound to emanate from the mouth of family members of the girl after the relations between the two sides have gone to the extreme opposite end. It is for this reason only that I am entering into a strict exercise of analyzing as to whether the various allegations levelled by the father and brother of deceased Kajal constitute any ingredient of the offence either under explanation 'a' or 'b' to Section 498A IPC or not. Clearly, accused persons are being subjected to face a trial for penal provisions and the consequences of said provisions are very grave in nature so a strict interpretation needs to be taken of the various averments/allegations.

xiii) In March-April, 2004 Kajal xiii)Once again the allegations are was taken back to her matrimonial general in nature and it has been home but again over there she was merely stated that accused Bharat mentally and physically tortured Bhushan continued to extend and accused Bharat Bhushan threat for divorce. However, no Chaudhary continued to threat her demands having been made at for divorce. this stage have been spelled out and thus the mere threat of divorce that to by father-in-law cannot constitute any offence either under explanation 'a' or 'b' to Section 498A IPC.

xiv) In July, 2004 Vishesh xiv)The couple shifted to a separate Chaudhary and Kajal shifted to a house and where all the family separate house in Sector-15, Rohini, members of Vishesh Chaudhary Delhi due to paucity of space as used to visit them but the fact that accused Amit Chaudhary was Kajal was not allowed to visit them getting married. However, all the even if is presumed to be true accused persons used to visit there cannot itself constitute any offence but Kajal was not allowed to visit either under explanation 'a' or 'b' them. to Section 498A IPC.

18

xv) At the time of purchase of xv)The mere demand of rupees H.No.123B, CC Block, Shalimar one lakh at the time of purchase of Bagh, Delhi the parents of Vishesh house by the parents of Vishesh Chaudhary demanded rupees one Chaudhary in itself does not lakh from PW1 Dr. Subhash Arora constitute any offence either under which he gave them in cash. explanation 'a' or 'b' to Section 498A IPC as the same cannot be stated to be dowry in connection with the marriage of the couple in the strict sense of the term and even otherwise there are no allegation of cruelty having been meted out to Kajal in this regard.

xvi) At the time of shifting to a xvi)Giving of gifts to accused separate residence by Vishesh Vishesh Chaudhary and Kajal at the Chaudhary and Kajal PW1 Dr. time when they took a separate Subhash Arora gave them a residence also does not constitute refrigerator of 175 ltrs. of Godrej, a any offence either under double bed, bed sheets, utensils explanation 'a' or 'b' to Section etc. on the demand being made 498A IPC. It is often seen that by the accused persons. parents on such occasions do give gifts to their children. Even if such articles were demanded by accused Vishesh Chaudhary then also there is no averment of any cruelty or harassment having been meted out to Kajal in this regard.

xvii) On 12-1-2005 Kajal was brought xvii) The mere fact that on 12-1- to her parental house as her 2005 Kajal was brought to her condition was not good and on 15- parental house as her condition 1-2005 Vishesh Chaudhary asked was not good or that she went them to drop Kajal at his house back with accused Vishesh assuring that in future there will be Chaudhary on his assurance that no complaint regarding torture and she will be kept well in future and beating and that she will be kept that there will be no complaints in nicely. future in itself is not only a general allegation in nature but also does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC in the absence of any specific instance of cruelty or harassment or demand of dowry having been not spelled out. In fact, there is no averment that any demand was made of any article on this occasion.

19

xviii) On 30-1-2005 Kajal had a talk xviii)Again a general allegation and with PW1 Dr. Subhash Arora and she mere taunt that "MAR JA MARTI complained that her inlaws and KYO NAHI JA KAR" does not husband were continuously constitute any offence either under harassing her and they always used explanation 'a' or 'b' to Section to say to her "MAR JA MARTI KYO 498A IPC. The averment lack NAHI JA KAR". specific details of any demand or cruelty or harassment meted out to Kajal. It also does not reflects or spells out the mensrea of the accused persons when these words were allegedly uttered. Reliance can be placed in this regard on the case MAHENDER SINGH VS. STATE OF MP, 1995 SUPP. (3)SCC 731.

xix) On 31-1-2005 in the morning xix) The telephonic conversation of Kajal talked to PW2 Varun Arora Kajal with her brother and mother and her mother and informed that stating that she was being harassed she was being harassed and being and was being beaten by her beaten by her husband and his husband and other in-laws also in parents and brothers and that she itself does not constitute any will not live for more time. offence either under explanation 'a' Thereafter, on 31-1-05 itself at or 'b' to Section 498A IPC as no about 10.30pm Amit informed from reason has been spelled out as to the mobile phone of Vishesh why she was being given beating Chaudhary on the mobile phone of or was being harassed. It cannot be PW2 Varun Arora that Kajal has inferred from it as to what was the committed suicide by hanging. nature of harassment or cruelty.

Moreover, the postmortem examination report also does not support this allegation as the doctor did not find any such signs of beating on the body of Kajal.

As a mark of caution, I may also state that I shall be dealing with the case of the prosecution qua Section 306 IPC separately also at a later stage of my judgment.

PW2 VARUN ARORA

i) After the marriage Kajal was i) All allegations are general in harassed by all the accused nature and lacks any specific persons since their demand for details. The allegations does not dowry could not be fulfilled. She constitute any offence either under was beaten by the accused explanation 'a' or 'b' to Section persons. 498A IPC.

20

ii) The accused persons were given ii)Allegations are again general in scooter and usual jewellery in the nature. Moreover, it is not the case marriage but they were not happy of the parents and brothers of Kajal with it and had sold the scooter and that scooter and usual jewellery demanded a car but which articles were given in the marriage demand could not be fulfilled. pursuant to any demand by the accused persons. However, the sale of scooter by Vishesh Chaudhary does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC. Similarly, the demand of car allegedly by him and that to when he intended to leave for USA for a period of three years does not appear to be true. However, even otherwise the same in itself without there being any accompanying instance of cruelty does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC.

iii) On the occasion of first daughter iii)The gifts given were admittedly of Kajal, a sum of Rs.51,000/- cash customary gifts as are given usually and 30 tolas of gold were in Indian families on the birth of a demanded but only 10 tolas of gold child by the parents of the and Rs.21,000/- in cash besides daughter to the in-laws of their clothes were given and the other daughter. The misbehaviour or demands of accused persons could demand as stated to by the not be fulfilled. However, accused accused persons was with the persons continued to make such parents of Kajal and there is no demands. averment of there being any misbehaviour cruelty or harassment to Kajal. Even otherwise Kajal at that time was admittedly in USA and thus no cruelty or harassment could have been meted out to her by the accused persons staying in India. Once again the averments does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC.

iv) A sum of rupees one lakh was iv) The mere demand of dowry of given to accused Bharat Bhushan rupees one lakh at the time of Chaudhary when they shifted to purchase of house by the parents their new house. of Vishesh Chaudhary in itself does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC as the same cannot be stated to be dowry in connection with the marriage of the couple in the strict sense of the term and even otherwise there are no allegation of cruelty having been meted out to Kajal in this regard.

21

v) After return to India from USA the v) The allegations on the face of it parents and brother of Kajal were does not inspire confidence.

not allowed to meet her for two Admittedly, after a gap of about years. two years when the relative of A relative-Minakshi went to meet Kajal, namely, Minakshi allegedly Kajal and she informed them the went to meet Kajal no one stopped plight of Kajal stating that she was her from meeting Kajal. Thereafter, very week and thereafter they went when the parents and brother of to the house of accused persons Kajal went to meet her they were requesting them to allow them to allowed to meet her and Kajal was meet Kajal and to which request even allowed to go to her parental they acceded and they also house along with them. These requested that Kajal be sent with allegations will also appear to be them as her father was a doctor without any basis from the other and then she remained with them nature of evidence which has been for three months in their house. led on record by the accused persons as regards the participation of the parents and brother of Kajal in the family functions of the accused persons even when Kajal was not present in India. The same will be further discussed seen and analyzed at a later stage of my judgment. There does not appear to be any reason as to on what account Kajal was not permitted to meet her parents upon her return to India and that too for a long period of two years. There is nothing on record as to why during this period the parents of Kajal did not try to meet her or did not make any complaint to the police in this regard. Even otherwise there is no averment that during those two years there was any demand of dowry and consequent to non fulfillment of the same Kajal was not allowed to meet her parents. The allegations does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC.

22

vi) On 12-1-2005 Kajal was brought vi)The mere fact that on 12-1-2005 to her parental house as she Kajal was brought to her parental complained on telephone that her house as her condition was not inlaws were harassing her and she good or that she went back with went back to her matrimonial home accused Vishesh Chaudhary on his on 15-1-2005 on the assurance of assurance that she will be kept well Vishesh Chaudhary that no such in future and that there will be no harassment will be repeated in complaints in future in itself is not future. only a general allegation in nature but also does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC in the absence of of any specific instance of cruelty or harassment or demand of dowry having been not spelled out. In fact, there is no averment that any demand was made or any article on this occasion was demanded.

Moreover, nothing has been spelled out as to how Kajal was being harassed or on what account was she being harassed. There is no averment that the said alleged harassment was in connection with demand of some property or article etc.

vii)On 31-1-2005 a telephone call vii)The telephonic conversation of was received from Kajal and she Kajal with her brother and mother had a talk with her mother and PW2 stating that she was being harassed Varun Arora and she stated that her and was being beaten by her husband and other inlaws were husband and other in-laws also in harassing and abusing her and that itself does not constitute any she was very sad. Kajal also stated offence either under explanation 'a' that in such circumstances she or 'b' to Section 498A IPC as no cannot survive. reason has been spelled out as to why she was being given beating or was being harassed. It cannot be inferred from it as to what was the nature of harassment or cruelty.

Moreover, the postmortem examination report also does not support this allegation as the doctor did not find any such signs of beating on the body of Kajal.

As a mark of caution, I may also state that I shall be dealing with the case of the prosecution qua Section 306 IPC separately also at a later stage of my judgment.

viii)PW2 Varun Arora then talked to viii)Again a general allegation and accused Vishesh Chaudhary and does not per se reflects the he stated that Kajal usually states mensrea of accused Vishesh that she will die but she is not Chaudhary. The allegation does making efforts in that regard. not constitute any offence either under explanation (a) or (b) to Section 498A IPC.

23

I now propose to analyze the aforesaid averments/allegations as levelled by PW1 Dr. Subhash Arora and PW2 Varun Arora in their deposition comprehensively, lest, it may be stated that a microscopic view of the allegations/averments has been taken and that too in isolation.

As already discussed herein above the various averments/allegations as levelled by the two star witnesses of the prosecution individually does not fall or constitute any offence either under explanation 'a' or 'b' to Section 498A IPC. In fact, even if the said allegations/averments are taken together then also they does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC. At this stage, it will be also worthwhile to have a brief reference to the various photographs and greeting cards and letters as have been placed on record by the accused persons. The greeting cards and letters which were exchanged between the parents of Kajal on the one hand in India and Kajal and accused Vishesh Chaudhary on the other hand in USA clearly goes to show that the relations between the two families were normal. The relations qua "Apla" the sister of accused Vishesh Chaudhary with whom the couple were residing in USA were also apparently normal as is evident from the said letters. Furthermore, the various photographs of birthday celebrations of the daughter of accused Parichay and participation in those functions at the house of accused persons by the parents and brother of Kajal even at the time when Kajal was away to USA again goes to show that the relations between the two families were absolutely normal. PW1 Dr. Subhash Arora also admitted that the gifts given by them at the time of birth of the two children to Kajal were sent to USA through the parents of accused Vishesh Chaudhary. This fact again goes to show that there was no lack of correspondence/communication between the two families. Furthermore, the draft reply prepared 24 admittedly by PW1 Dr.Subhash Arora to the notice received from DDA by the accused persons also goes to show that there has been no closure of communication between the two families and rather they used to look towards each other in the time of help and need.

Thus, if the aforesaid facts & circumstances of the case as have emerged out on record are seen then it becomes highly unbelievable that after return of Kajal from USA to India the parents of Kajal were not allowed to meet her for a period of two years. It all the more appears to be strange when both the families were residing in the same locality. It is also highly unbelievable that during the period of two years Kajal was not allowed to visit her parents on any occasion such as 'rakshabandan' etc. Moreover, if there were any such restriction on Kajal and her parents then there was no reason as to why the accused persons would have allowed Minakshi, a cousin of Kajal to meet her. Thereafter, PW1 Dr. Subhash Arora himself stated that he thereafter went to meet accused Bharat Bhushan at his shop and thereafter they went to the house of the accused persons and met Kajal. Thereafter, on their request Kajal was sent back to her parental house for a period of three months. There has not been any averment on the part of the witnesses that the accused persons in any manner restrained them or Meenakshi from meeting Kajal or objected to their taking away Kajal with them for a period of three months.

In the present case, after the death of Kajal a memorandum of understanding/agreement was also entered into between the parties which comprised of accused Bharat Bhushan Chaudhary on the one hand and complainant Dr. Subhash Arora on the other hand. Accused Vishesh Chaudhary was also a party to the said agreement. As per the said agreement the parties had agreed to resolve all their disputes mutually and pursuant to the said agreement a property was transferred in the name of the two children of accused Vishesh Chaudhary and Kajal by accused Smt. Nirmal Chaudhary. Complainant Dr. Subhash Arora even 25 filed a suit against the present accused persons on the basis of said memorandum of understanding. However, the learned civil judge rightly dismissed the said suit holding that the agreement in itself was not a valid one under the eyes of law. However, the execution of the said agreement or filing of a subsequent suit for its enforcement clearly gives an insight to us as to what must have transpired between the parties after the death of Kajal or as to what was the nature of relationship or the circumstances between the parties prior to the death of Kajal. It goes without saying that if the relations between the parties were sour to the extent that Kajal was subjected to extreme cruelty and harassment which compelled her to commit suicide and which facts if were to the knowledge of the parents and brother of Kajal then under ordinary prudence or circumstances no one would have entered into such an agreement or memorandum of understanding with the accused persons.

However, as the said memorandum of understanding was clearly not valid under the eyes of law so, I am not harping upon the said aspect of the matter any further except to the extent that it reflects the conduct of the parties immediately after the incident.

At this stage, it will be also worthwhile to refer to certain observations made by the then learned A.S.J-Sh. GP Mittal in his bail order dated 22-2-2005 whereby two of the accused persons, namely, Amit and Parichay were admitted to anticipatory bail. Learned Judge specifically observed that the allegations of beating having been given to deceased Kajal immediately prior to the incident were levelled for the first time by her father on 9-2-2005 and not before that. He further observed that the statement that deceased disclosed to her mother just prior to committing suicide that she has been given beating by the accused persons fails to obtain support from the postmortem examination report. As per the postmortem examination report there were no external injury over the body except a ligature mark upon the neck. Thus, serious doubts also 26 arises as to the veracity of the said allegations of Kajal having been given beating just prior to her committing suicide.

Learned defence counsel also pointed out a number of infirmities in the nature of investigation as carried out by IO/ASI Jai Bagwan. However, not only ASI Jai Bagwan himself admitted that this was his first case having been investigated by him wherein a person had died but, I am of the considered opinion that in such type of cases the various infirmities arising on account of some lack of knowledge on the part of investigating agency or for any other reason whatsoever does not affects the deposition of the witnesses, who primarily depose about the facts leading to the death of the person concerned. Thus, those infirmities ceases to be of any value in the matters of present kind and need not be dwelved into in any detail as they does not affects the merits of the case. I am thus not entering into any analysis of the matter as to whether the FIR in the present case was registered on the very first information received in the police station or not. However, the point to be noticed is that all such allegations of harassment and cruelty to Kajal were primarily levelled by Dr. Subhash Arora for the first time on 9-2-2005.

As regards the giving of rupees one lakh to accused Bharat Bhushan by Dr. Subhash Arora (PW1) at the time of purchase of a house, it has clearly come on record during the cross examination of the two star witnesses of the prosecution that this allegation was levelled for the first time during the course of their deposition in the court by them and was not at all stated at any earlier point of time during the course of investigation to the police.

As regards the fact that on 12-1-2005 Kajal had gone to the house of her parents, learned defence counsel has tried to show from the cross examination of PW1 Dr. Subhash Arora and PW2 Varun Arora that PW2 Varun Arora had got engaged in the month of December, 2004 and it was the first 'Lohri' ceremony in the house of accused persons on 13-1- 27 2005 on account of which Kajal had gone there. However, PW1 Dr. Subhash Arora vehemently denied these allegations but, he merely stated that he had taken Kajal to over there because her condition was not good. However, it cannot be inferred merely on the basis of conjectures and surmises as to under what circumstances the condition of Kajal was not good.

It is in the light of the aforesaid facts & circumstances of the case that the medical condition of Kajal needs to be seen and analyzed. DW4 Dr. MM Mehandiratta was the Professor Neurology, GB Pant Hospital, Delhi. He has deposed that in the year 2003-2004 he had treated Kajal as she was found to be suffering from "migraine". He stated that initially when he examined the patient he found that the headache episode used to last to the patient for about 4-5 hours. He further stated that after some treatment the frequency of headache reduced and it came to 3-4 attacks per month as compared 10-12 attacks per month earlier. He further stated that on the basis of the record available he could say that he examined Kajal for the time on 16-6-2003 and thereafter regularly examined her till 28-7-2004. He further stated that it was a large government hospital and as no further treatment record was available so he cannot say as to whether Kajal again came for treatment or not. He further stated that commonly known side effects of the various medicines prescribed by him viz "MIGARID" & "SAROTENA" were weight gain or some degree of "SADATION". He however stated that the nature of side effects or their degree varies from patient to patient. He also stated that non-continuation of the treatment of migraine however may result in increase in the frequency of migraine attacks.

In fact, PW1 Dr. Subhash Arora himself also admitted in his cross examination that initially he had also accompanied Kajal and Vishesh Chaudhary to Dr. MM Mehandiratta for treatment. PW2 Varun Arora also stated that on one occasion they had taken Kajal to their house stating 28 that her father was a doctor and she can be better looked after by him. Both DW2 Bharti Chaudhary and DW6 Raman Shangari also stated about the problem of headache to Kajal.

Thus, from the aforesaid facts & circumstances of the present case, it is clear that Kajal was indeed suffering from a constant problem of headache. It has also come on record that in or around July, 2004 Kajal and Vishesh Chaudhary had shifted to a separate house. It has also come on record from the deposition of PW1 Dr. Subhash Arora himself that on 31-1-2005 he had asked Visesh Chaudhary to attend a function at the house of in-laws of PW2 Varun Arora. The said function was probably scheduled for 6th or 7th February. He however denied that Vishesh Chaudhary had expressed his inability to attend the function due to his preoccupation or that upon this an argument had taken place between him and Vishesh Chaudhary over this issue. I may however state that though it cannot be ascertained by the court as to whether the contention put forth by learned defence counsel by way of suggestion to the witness had any element of truth or not but this fact certainly goes to show that the relations between the parties were not bad. I have already discussed the alleged telephone call made by Kajal to her mother and PW2 Varun Arora on the evening of 31-1-2005 regarding beating given to her by the accused persons as the said allegations does not get support from her postmortem examination report. This alleged telephonic conversation of Kajal to her mother and brother thus does not inspire confidence when it is found that on the other hand PW1 Dr. Subhash Arora talked to accused Vishesh Chaudhary on 31-1-2005 itself inviting him over to a function at the house of in-laws of his son.

In the aforesaid circumstances it is thus clear that if the overall allegations and averments levelled by PW1 Dr. Subhash Arora and PW2 Varun Arora are taken in a comprehensive view then also it is found that the said allegations/averments does not constitute any offence either 29 under explanation 'a' or 'b' to Section 498A IPC.

At this stage, I would also like to state that though both complainant as well as learned defence counsel placed reliance on a number of case law but while there cannot be any dispute as to the legal principles enunciated in the said case laws relied upon by both the parties but the very incidents which came up for consideration before different courts and came to be opined as constituting offence u/S 498A IPC depends on the facts & circumstances of each and every individual case. Every family has its own peculiar circumstances and social set up and thus the allegations levelled in each case have to be seen and analyzed in the peculiar facts & circumstances of the given case.

The fact however remains that the various allegations levelled by PW1 Dr. Subhash Arora and PW2 Varun Arora either taken in isolation or comprehensively does not constitute any offence either under explanation 'a' or 'b' to Section 498A IPC.

Another important issue which arises for consideration is as to whether the accused persons in any manner abetted the commission of suicide by Kajal or not. Clearly, as the death of Kajal in the present case took place after more than seven years of marriage so, the presumption u/S 113A Indian Evidence Act is not available to the prosecution. Moreover, as the prosecution has failed to prove that deceased Kajal was subjected to cruelty within the meaning of Section 498A IPC so no offence u/S 306 IPC even stands made out.

In the case HARJIT SINGH VS. STATE OF PUNJAB AIR 2006 SC 686, it was observed that before the provisions of 306 IPC are invoked it is necessary to establish that :

1) The deceased committed suicide and
2) She had been subjected to cruelty within the meaning of Section 498A IPC.

In the case RAMESH KUMAR VS. STATE OF CHATISGARH (2001) 9 30 SCC 618 SC the Hon'ble Supreme Court observed while acquitting an accused of the offence U/S 306 IPC that:

"a word uttered in a fit of anger or emotion without intending the consequence to actually follow cannot be said to be instigation. If it transpires 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 for abetting the offence of suicide should be found guilty".

In the case MAHENDER SINGH VS. STATE OF MP 1995 SUPP.(3) SCC 731, the prosecution story to the effect that the appellant told the deceased to go and die was held to be not sufficient to constitute the ingredient of instigation. It was observed that the word instigate denotes incitement or urging to do so drastic or un-advisable action or to stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or in a spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotions.

Reliance in this regard is also placed on the case SOHAN RAJ SHARMA VS. STATE OF HARYANA, 2008 V AD (SC) 281, wherein also the Hon'ble Supreme Court while dealing with Section 306 IPC observed:-

"Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a person can 31 be said to be abetting the commission of offence under Section 306 of IPC.

It was further observed that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough.

Similar observations were repeated by Hon'ble Justice Sh. BD Ahmed of our own Delhi High Court in the case KARTAR SINGH AND OTHERS VS. CBI, 2006 (2) JCC 1134. Recently in the case BHAGWAN DASS VS. KARTAR SINGH & ORS., 2007 CR.L.J. 3420, Hon'ble SC observed that the courts should be extremely careful in assessing the facts & 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 transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences 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".

In SANJU @ SANJAY SINGH SENGAR VS. STATE OF MP 2002 III AD (CRL.) SC 1 Hon'ble Supreme Court observed as under:

"Section 107 IPC defines abetment to mean that a person abets the doing of 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 32 doing of that thing".

Thus, in view of the aforesaid facts and circumstances, it is clear that even if it is presumed for the sake of arguments that the accused persons did say to Kajal "MARJA MARTI KYO NAHI JAA KAR" then also in the absence of there being any other evidence on record to show the mens rea in this regard on the part of accused persons, it cannot be presumed that the accused persons in any manner abetted the commission of suicide by Kajal. In fact, this statement as deposed to by PW1 Dr. Subhash Arora also does not inspire confidence if it is seen that on the next day on the morning of 31-1-2005 PW1 Dr. Subhash Arora invited Vishesh Chaudhary to come to a function at the house of in-laws of PW2 Varun Arora and there is nothing on record to show that he in any manner tried to question accused Visesh Chaudhary as regards his conduct for the day before.

Thus, though it is difficult for the court to know as to what actually led to the commission of suicide by Kajal but, the prosecution has clearly failed in proving that the accused persons in any manner subjected Kajal to cruelty or harassment or instigated or abetted the commission of suicide by her. The prosecution has thus miserably failed in proving its case against all the accused persons beyond shadows of all reasonable doubts.


           I   accordingly    hereby     giving     benefit    of   doubt    to



accused  Vishesh        Chaudhary,                Amit, Parichay,

Bharat            Bhushan                and        Smt.            Nirmal

Chaudhary,              acquit         them    of    the      offence   U/S
                                       33


498A/306/34 IPC                .

Bail bonds of all accused persons stands cancelled and their sureties are discharged.

Documents of their sureties, if any be returned forthwith. File be consigned to record room.

ANNOUNCED IN THE OPEN COURT ON 16-5-2008.

(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURTS:ROHINI COURTS:

DELHI.

34

FIR NO.: 126/05.

PS    : PRASHANT VIHAR.
U/S    : 498A/306/34 IPC.

16-5-08

Pr. Addl. PP for the State.

All accused are present on bail with their counsel. Complainant Dr. Subhash Arora is present.

Vide my separate detailed judgment dated 16-5-08, all accused persons, namely, Vishesh Chaudhary, Amit, Parichay, Bharat Bhushan and Smt. Nirmal Chaudhary have been acquitted of the offence U/S 498A/306/34 IPC.

Bail bonds of all accused persons stands cancelled and their sureties are discharged.

Documents of their sureties, if any be returned forthwith. File be consigned to record room.

ANNOUNCED IN THE OPEN COURT ON 16-5-2008.

(BHARAT PARASHAR) ADDITIONAL DISTRICT & SESSION JUDGE FAST TRACK COURTS:ROHINI COURTS:

DELHI.