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Kaushal Kishore vs State Nct Of Delhi on 28 May, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 01st February, 2019
Judgment delivered on: 28th May, 2019

+ CRL.REV.P. 129/2018 Crl.M.A.2863/2018

KAUSHAL KISHORE ….. Petitioner

versus

STATE NCT OF DELHI ….. Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Harish Salve, Senior Advocate with Mr. S.A.
Hashmi, Mr. Salman Hashmi, Mr. Sheezan Hashmi and
Mr. Aditya P. Khanna, Advocates.

For the Respondent : Mr. Hirein Sharma, Additional Public Prosecutor with
Sub Inspector Sachin Kumar, Police Station South
Campus.

CORAM:-
HON’BLE MR. JUSTICESANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J.

1. Petitioner impugns order on charge dated 27.10.2017 whereby
charge has been framed against the petitioner under Section 498A Indian
Penal Code (IPC for short).

2. Mr. Salve, learned Senior Counsel appearing for the petitioner
contends that Charge Sheet was filed both under Section 306 and Section
498A IPC, however, the Trial Court found insufficient material to proceed
under Section 306 IPC. He submits that cruelty under Section 498A IPC is
to be of such a nature which is likely to drive a woman to commit suicide or
to cause grave injury etc. and as the Trial Court found insufficient material

CRL.REV.P. 129/2018 Page 1 of 8
to proceed under Sectionsection 306 IPC, on the same analogy, there was
insufficient material to even frame a charge under Section 498A of IPC.

3. Deceased married the petitioner on 27.09.2009. On 28.09.2010, the
deceased committed suicide. FIR was registered on the complaint of the
mother of the deceased, which complaint was lodged on 29.09.2010.

4. The allegations in the FIR are that the married life of her daughter
with the petitioner was not good from day one. It is alleged that on the first
day itself, petitioner had informed the deceased that his brother had four
children and she had to take care of them. It is contended that the deceased
initially did not inform her family about any problem but after six months,
she started informing them that her husband had been mentally torturing
her.

5. It is alleged that once at 1 AM in the night he had turned her out of
the house and after a lot of requests, he permitted her to come back. It is
alleged that on every occasion petitioner used to fight with her with regard
to the children of his brother and used to blame her for any problem that
they faced.

6. In her supplementary statement, recorded on 10.11.2010, the mother
of the deceased stated that she was told by her daughter that her husband
i.e. the petitioner did not want any child as he had stated that his brother
had four children and she was to take care of them. It is contended that he
never used to give her any money for expenditure. It is alleged that twice
she became pregnant but both times she got the child aborted. Further, it is
alleged that they had travelled to London where despite protest by the
deceased, petitioner made her stay at her relative’s house.

CRL.REV.P. 129/2018 Page 2 of 8

7. It is alleged that the deceased informed the mother that the petitioner
wanted that all personal expenses of the deceased should be incurred by her
brother and her brother should give money for purchasing a house in
Gurgaon. It is alleged that she was being continuously mentally and
physically tortured and beaten and was being pressurised to talk to her
brother about getting money for purchasing a plot.

8. Statements of the brothers of the deceased Neeraj Mediratta and
Anuj Mediratta were also recorded. They also stated that their sister – the
deceased was being harassed by the petitioner and one day he kept on
shouting and fighting with her and at about 1 AM in the night he dragged
her out of the house and asked her to go and get money from her mother
and brothers and when she was asked about the reason for such behaviour,
she stated that it was on account of the children of the brother of the
petitioner. It is alleged that he used to continuously abuse her and had even
made her apologize to him in writing several times and was looking for
excuses to scold her and fight with her. It is alleged that when she had
conceived, the petitioner physically and mentally started harassing her and
would not get her medical check-up done, on account of which, she had
miscarriage. They have contended that she committed suicide on account
of the ill behaviour of the petitioner.

9. The deceased committed suicide on 28.09.2010, the very next day of
her first marriage anniversary. As per the prosecution, a notebook was
recovered from the spot and in the notebook, there was a suicide note
allegedly written by the deceased. The suicide note has been verified by
the Forensic Science Laboratory written in the handwriting of the deceased.
In the suicide note, which is in Hindi, she has written as under:-

CRL.REV.P. 129/2018 Page 3 of 8

“Dear All,

I am tired of this life. Everyone loves me. My two brothers
and mother and my father in law and husband. Kaushalji
loves me a lot and takes care of my happiness.

But I do not want to live now, I am taking this step only for
this reason.

I am responsible for my death.

All of you forgive me.

Yours

Swati

28/9/2010″

10. By the impugned order, Trial Court has framed charges under
Section 498A IPC and has discharged the accused for the offence under
Section 306 IPC.

11. The Trial Court was of the view that the suicide note exonerated the
petitioner and stated that the deceased was taking the step voluntarily. The
Trial Court was of the view that since the suicide note exonerated the
petitioner, there was insufficient material against him insofar as the offence
under Section 306 IPC was concerned.

12. However, the Trial Court found that there were specific allegations
made in the statements of Smt. Kamlesh (mother of the deceased) and Sh.
Neeraj Mediratta and Sh. Anuj Mediratta (brothers of the deceased) that the
petitioner had maltreated the deceased and committed physical and mental
cruelty.

13. Sections 306 IPC reads as under:-

CRL.REV.P. 129/2018 Page 4 of 8

“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.”

14. Sections 498A IPC reads as under:

“498A. 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 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.”

15. SectionIn Girdhar Shankar Tawade v. State of Maharashtra, (2002) 5 SCC
177 the Supreme Court has held as under
“17. As regards the core issue as to whether charges under
Sections 306 and Section498-A of the Indian Penal Code are
independent of each other and acquittal of one does not lead
to acquittal on the other, as noticed earlier, there appears to
be a long catena of cases in affirmation thereto and as such
further dilation is not necessary neither are we inclined to do
so, but in order to justify a conviction under the later
provision there must be available on record some material
and cogent evidence.*************

CRL.REV.P. 129/2018 Page 5 of 8

18. ************ Acquittal of a charge under Section
306, as noticed hereinbefore, though not by itself a ground
for acquittal under Section 498-A, but some cogent evidence
is required to bring home the charge of Section 498-A as
well, without which the charge cannot be said to be
maintained. ********”

16. In Girdhar Shankar Tawade (supra), the Supreme Court has clearly
laid down that charges under Section 306 and Section498A IPC are independent of
each other and acquittal of one does not lead to acquittal of the other.
Acquittal of a charge under Section 306 does not by itself become a ground
for acquittal under Section 498A IPC but some cogent evidence is required
to bring home the charge of Section 498A as well, without which the
charge cannot be said to be maintained.

17. SectionIn Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 the
Supreme Court held as under:

“22. Sections 498-A and Section306 IPC are independent and
constitute different offences. Though, depending on the facts
and circumstances of an individual case, subjecting a woman
to cruelty may amount to an offence under Section 498-A and
may also, if a course of conduct amounting to cruelty is
established leaving no other option for the woman except to
commit suicide, amount to abetment to commit suicide.
However, merely because an accused has been held liable to
be punished under Section 498-A IPC it does not follow that
on the same evidence he must also and necessarily be held
guilty of having abetted the commission of suicide by the
woman concerned. *********”

18. SectionIn Ramesh Kumar vs. State of Chhattisgarh, the Supreme Court has
further held that Sections 498A and Section 306 IPC are independent and
constitute different offences. Depending on the facts and circumstances of
an individual case, subjecting a woman to cruelty may amount to an

CRL.REV.P. 129/2018 Page 6 of 8
offence under Section 498A and may also if a course of conduct amounting
to cruelty is established leaving no other option for the woman except to
commit suicide, amount to abetment to commit suicide.

19. In the present case, Trial Court found insufficient material to charge
the petitioner for an offence under Section 306 IPC but after examination of
the material on record was of the view that there is sufficient material to
frame a charge under Sectionsection 498A IPC.

20. As noticed above, an acquittal or discharge under Section 306 IPC
would not ipso facto amount to an acquittal or discharge under Section
498A IPC. Ingredients of both the Sections are different. Though, there
may be an overlap with regard to cruelty being meted out to the deceased in
both the Sections, however, the degree of cruelty to constitute abetment
under Section 306 IPC would be of higher than the degree of harassment
and cruelty to constitute an offence under Section 498A IPC. It cannot be
held that because petitioner has been discharged of an offence under
Section 306 IPC, it would automatically lead to a discharge of the offence
under Section 498A IPC.

21. In the present case, there is sufficient material on record in the form
of the statements of the mother as well as the brothers of the deceased,
alleging both physical and mental harassment by the petitioner of the
deceased. There are specific allegations that petitioner had maltreated the
deceased and committed physical and mental cruelty on her and even made
demands for money to purchase a plot. In my view there is sufficient
material on record to give rise to grave suspicion against the petitioner for
framing a charge under Section 498A IPC.

CRL.REV.P. 129/2018 Page 7 of 8

22. Further submissions made on behalf of the petitioner, rendering
explanations for the allegations levelled by the family of the deceased and
attempting to establish that the allegations are false and controverted by
other facts, are pleas to be raised in defence by the petitioner which would
be appropriately considered by the Trial Court.

23. At the stage of framing of charge, the Court is not to look into the
probable explanation or defence of the accused but is to examine the
material collected by the prosecution at the time of investigation.
Explanations with regard to the allegations or the statements of neighbours
with regard to their observation of the behaviour of the petitioner with the
deceased, relied on by learned counsel for the petitioner, is material which
would be proved by the petitioner by leading his defence evidence.

24. On perusal of the record, I am satisfied that there is no infirmity in
the view taken by the Trial Court in framing a charge against the petitioner
for an offence under Section 498A IPC.

25. In view of the above, I find no infirmity in the impugned order. The
petition is, accordingly, dismissed.

26. Order Dasti under signatures of the Court Master.

SANJEEV SACHDEVA, J
MAY 28, 2019
HJ/St

CRL.REV.P. 129/2018 Page 8 of 8

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