# Suryansh Kharbanda v. State of U.P

- **Citation:** (2023) 5 ILRA 1854
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-08
- **Case number:** Crl. Misc. Bail Application No. 52326 of 2022
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suryansh-kharbanda-v-state-of-u-p-50281
- **Pages:** 17

## Headnote

Criminal Law - Criminal Procedure Code,
1973- Section 439 - Indian Penal Code,
1860 - Sections 498-A, 323, 504, 506,
304-B & 120-B - Section 3⁄4 of Dowry
Prohibition
Act,1961
-first
informantfather of the deceased-husband and other
family
members-demand
of
dowry,
indulged in fight and instigated the
deceased to commit suicide-death by
hanging-within seven years of marriageno demand of dowry in suicide-applicant
was not at home on the date of incidenttreating written statement of witnesses
from complainant's side-statement under
section 161 CrPC- authority to be exercised
in the manner provided in the statute itselfpresumption under Section 113-A of the
Indian Evidence Act, 1872 would not apply
automatically-offence under Section 306 of
IPC-abetment
of
suicide-abetment
is
constituted by instigating a person to
commit an offence-words "soon before
death" Section 304 B IPC-to be understood
in relative and flexible sense-words cannot
be construed as laying down a rigid time
period to be applied mechanically in each
case-Courts duty bound to consider bail
applications wholesomely- Bail granted-Bail
application
allowed-
botched
up
investigation-matter referred to DGP, Uttar
Pradesh Police to ensure free and fair
investigation. (Paras 26, 33, 38, 39,40, 41,
42, 44, 48, 50,51 and 57)

HELD:
The aforesaid entries in the case diary coupled
with the statements of Radhika and Kiran go to
suggest that the applicant had removed the
jewelries from the house on 12.11.2021 as the
deceased was putting the locker on fire and was
living in her sister's house and on the day and
time when the deceased committed suicide, he
was not at his home. (Para 26)

So far as taking the written statements of some
of the witness of the complainant's side and
treating the same as statement under section
161 of Cr.P.C. is concerned, it is well settled
that it is a normal rule of construction that when
a statute vests certain power in an authority to
be exercised in a particular manner then the
said authority has to exercise it only in the
manner provided in the statute itself. The
principle behind the rule is that if this were not
so, the statutory provision might as well not
have been enacted. (Para 33)

It is well settled that the mere fact that if a
married woman commits suicide within a period
5 All. Suryansh Kharbanda Vs. State of U.P.
1855
of seven years of her marriage, the presumption
under section 113-A of the Evidence Act, 1872
would not automatically apply. The term "the
Court may presume, having regard to all the
other circumstances of the case, that such
suicide had been abetted by her husband or by
such relative of her husband." would indicate
that the presumption under section 113-A of the
Evidence Act, is discretionary and the Court can
consider the nature of cruelty to which the
woman was subjected to, having

## Text

_Characters 0–39,466 of 59,429. This is a partial read: ask again with offset=39466 for what follows._

1854 INDIAN LAW REPORTS ALLAHABAD SERIES
fact of the said transfer of money to her
account, but has stated that she is unable to
do so as she is facing a case under Section
138 NI Act at Telangana, as such she is not
sure as to whom she has to repay the said
amount.

12. After hearing the parties, going
through the evidence on record and taking
into consideration the fact that a huge
amount of Rs.50 lakhs has been transferred
to the account of applicant, I do not find it a
fit case for grant of anticipatory bail to the
applicant.

13. The anticipatory bail application
is found devoid of merits and is,
accordingly, rejected.
----------
(2023) 5 ILRA 1854
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.05.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Bail Application No. 52326 of 2022

Suryansh Kharbanda ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri
Alok
Ranjan,
Sri
G.S.
Chaturvedi(Sr.
Advocate)

Counsel for the Respondent:
Sri Shiv Kumar Pal (G.A.), Sri O.P. Dwivedi
(A.G.A.), Sri Raghuvansh Mishra, Sri Vidit
Agarwal, Sri Ashwani Tripathi

Criminal Law - Criminal Procedure Code,
1973- Section 439 - Indian Penal Code,
1860 - Sections 498-A, 323, 504, 506,
304-B & 120-B - Section 3⁄4 of Dowry
Prohibition
Act,1961
-first
informantfather of the deceased-husband and other
family
members-demand
of
dowry,
indulged in fight and instigated the
deceased to commit suicide-death by
hanging-within seven years of marriageno demand of dowry in suicide-applicant
was not at home on the date of incidenttreating written statement of witnesses
from complainant's side-statement under
section 161 CrPC- authority to be exercised
in the manner provided in the statute itselfpresumption under Section 113-A of the
Indian Evidence Act, 1872 would not apply
automatically-offence under Section 306 of
IPC-abetment
of
suicide-abetment
is
constituted by instigating a person to
commit an offence-words "soon before
death" Section 304 B IPC-to be understood
in relative and flexible sense-words cannot
be construed as laying down a rigid time
period to be applied mechanically in each
case-Courts duty bound to consider bail
applications wholesomely- Bail granted-Bail
application
allowed-
botched
up
investigation-matter referred to DGP, Uttar
Pradesh Police to ensure free and fair
investigation. (Paras 26, 33, 38, 39,40, 41,
42, 44, 48, 50,51 and 57)

HELD:
The aforesaid entries in the case diary coupled
with the statements of Radhika and Kiran go to
suggest that the applicant had removed the
jewelries from the house on 12.11.2021 as the
deceased was putting the locker on fire and was
living in her sister's house and on the day and
time when the deceased committed suicide, he
was not at his home. (Para 26)

So far as taking the written statements of some
of the witness of the complainant's side and
treating the same as statement under section
161 of Cr.P.C. is concerned, it is well settled
that it is a normal rule of construction that when
a statute vests certain power in an authority to
be exercised in a particular manner then the
said authority has to exercise it only in the
manner provided in the statute itself. The
principle behind the rule is that if this were not
so, the statutory provision might as well not
have been enacted. (Para 33)

It is well settled that the mere fact that if a
married woman commits suicide within a period
5 All. Suryansh Kharbanda Vs. State of U.P.
1855
of seven years of her marriage, the presumption
under section 113-A of the Evidence Act, 1872
would not automatically apply. The term "the
Court may presume, having regard to all the
other circumstances of the case, that such
suicide had been abetted by her husband or by
such relative of her husband." would indicate
that the presumption under section 113-A of the
Evidence Act, is discretionary and the Court can
consider the nature of cruelty to which the
woman was subjected to, having regard to the
meaning of the word "cruelty" in section 498-A
of the Indian Penal Code. "Abetment of suicide"
is also confined to the case of persons who aid
or abet the commission of the suicide. In the
matter of an offence under section 306 of the
Indian Penal Code, abetment must attract the
definition thereof in section 107 IPC. Abetment
is constituted by instigating a person to commit
an offence or engaging in a conspiracy to
commit, aid or intentional aiding a person to
commit it. (Para 38)

The words "soon before her death" occurring in
Section 304-B of Indian Penal Code are to be
understood in a relative and flexible sense.
Those words cannot be construed as laying
down a rigid period of time to be mechanically
applied in each case. (Para 40)

In the case in hand, accused is husband and is
seeking bail pending trial. The issue which
arises before this Court is whether if wife
committed suicide within a period of seven
years from the date of her marriage, the bail
prayer of accused-husband is liable to be
rejected straight away merely by drawing
adverse presumption of abetment of suicide
under Section 113-A of the Evidence Act, or
presumption of dowry death under Section 113B of the Evidence Act? (Para 42)

There is no dispute that the parameters for
considering the bail of accused pending trial and
conviction or acquittal of accused after adducing
evidences by both the parties before the trial
Court are different. This Court is of the view
that each case turns on its own facts and
circumstances. Even a little difference between
the facts of two cases, may alter the entire
aspect. In view of the provisions under Section
113A and 113B of the Evidence Act, it is not
that the Courts will shut eyes and act as a silent
spectator in all the cases while considering bail
applications, the Courts are duty bound to
consider broader aspect of the matter and in the
light of nature of allegations, the relevant
materials of the case diary either produced by
the complainant's side or by the accused's side
to prove his/her innocence cannot be ignored
because bail matters are also related to the
valuable liberty of the accused. (Para 44)

The investigating officer has not assigned any
cogent reason as to why he has not investigated
the case in respect of the complaint made by
Nisha
Kharbanda
on
13.11.2021
to
the
Commissioner, U.P. Police, Mahanagar, Kanpur
as well as in respect of above-mentioned
materials provided from the side of accused.
Investigating Officer neither taken pain to open
and see the materials (video of beating the
applicant by the deceased and vulgar telephonic
conversation between deceased and her father
available in pen-drive, which has been filed at
page no 178 to 202 of the paper book) provided
from the accused's side nor recorded the
transcript of the same in the case diary.
Investigating Officer even did not ask Naveen
Bhatia about the source and certificate under
Section 65B of the Evidence Act regarding said
video and telephonic conversation available in
the pen-drive whereas he, vide letter dated
01.12.2021 had asked the complainant Pawan
Grover about the source of origin regarding the
material provided by him in the pen-drive. (Para
48)

In the present case the allegation of harassment
and cruelty has been levelled by both sides
against
each
other.
Learned
Government
Advocate for the St.after arguing the matter at
length, has lastly conceded that no sincere
effort has been made by the investigating
officer to investigate the material evidences
provided from the accused side, while it is
accepted on record and mentioned in CD Nos.
14 and 47. (Para 51)

Not investigating the materials provided from
the side of the accused and only making the
same as part of C.D Nos. 14 and 47 is a serious
issue and it is not excepted from the
investigating officer, who is in the rank of
Deputy Superintendent of Police. This Court
may observe that the investigating officer did
1856 INDIAN LAW REPORTS ALLAHABAD SERIES
not meet the obligations, he was under. (Para
57)

Application allowed. (E-14)

List of Cases cited:

1. Common Cause Vs U.O.I.(2015)6 SCC 332

2. Maghavendra Pratap Singh @ Pankaj Singh
Vs St.f Chhattisgarh, 2023 SCC OnLine SC
486S.M.S. Pharmaceuticals Ltd. Vs Neeta Bhalla,
(2005) 8 SCC 89

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Heard Shri Gopal Swaroop
Chaturvedi,
learned
Senior
Counsel
assisted by Shri Alok Ranjan, learned
counsel for the applicant, Shri Shiv Kumar
Pal, learned Government Advocate assisted
by Shri Om Prakash Dwivedi, learned
Additional
Government
Advocate
representing the State and Shri Raghuvansh
Mishra, learned counsel along with Shri
Vidit Agarwal and Shri Ashwani Tripathi,
learned counsel appearing on behalf of the
first informant.

2. By means of this application under
Sections 439 of the Code of Criminal
Procedure, applicant Suryansh Kharbanda,
who is involved in Case Crime No. 162 of
2021, under Sections 498-A, 323, 504, 506,
304-B, 120-B IPC and Section 3⁄4 of Dowry
Prohibition Act, police station Nazirabad,
district Kanpur Nagar, seeks enlargement
on bail during the pendency of trial.

3. In short compass the facts of the case
are that the informant Pawan Grover, who
is
the
father
of Anchal
Kharbanda
(hereinafter referred as 'the deceased')
lodged a first information report on
20.11.2021 in respect of the incident which
took place on 19.11.2021 against Suryansh
(husband) Nisha (mother-in-law) Bharat
Grover alias Kaku (phupha), Minakshi,
Annu Khullar (paternal aunt) Puneet
Kotwani, (brother-in-law)(Bahnoi) Nikita
Kotwani (sister-in-law)(nand) and Tanya
Grover with the allegations that the
aforesaid accused persons used to demand
Rs. 70,00,000/- (rupees seventy lac ) and
indulged in fight (Marpeet) with his
daughter and instigate her to commit
suicide. Suryansh and his mother Nisha are
of bad character and they also wanted to
drag the victim in that misdeed. On
12.11.2021, all the accused persons with
common intention tortured the victim
physically and mentally and in the evening
Suryansh, husband of the victim after
beating her, took her cash and jewelries.
The said incident was reported to the police
by dialing 112 and 181. The FIR further
alleges that her daughter used to telephone
him several times a day and tell him about
the harassment and torture meted out to her
by her family members. On 19.11.2021
when the victim did not make any call, he
informed the police by dialing 181 and
when he went to the matrimonial house of
the victim, he found her daughter dead
hanging
from
the
fan.
All
the
aforementioned
accused
persons
with
common intention after killing his daughter
hanged her from the fan.

4. After getting the information, the
police rushed to the spot and conducted
inquest proceeding as well as post mortem
examination on the body of the deceased.

5. Inquest on the body of the deceased
was conducted on 20.11.2021 between 8.30
AM to 11.15 AM, in which Shri Jitendra
Bhalla (maternal uncle of the deceased),
Shri Rajeev Madan, (Mausa of the
deceased) Shri Arun Grover (uncle of the
deceased), Shri Akshay (brother of the
5 All. Suryansh Kharbanda Vs. State of U.P.
1857
deceased) and Smt. Reeta Grover (aunt of
the deceased) were the witnesses of inquest
proceedings.

6. Post mortem on the cadaver was
conducted by Doctor Sunil Kumar on
20.11.2021 at 12.55 PM. Doctor found the
following ante-mortem injuries:

"Ligature Mark 29 cm x 3.5 cm
around the neck with a gap of 7 cm right
side back of neck.

Distance 5.5 cm below chin, 6 cm
below left ear and 1.5 cm below right ear.

On
dissection
white
hard
and
glistering
subcutaneous
tissue
present
under the ligature mark."

7. Shri Gopal Swaroop Chaturvedi,
learned Senior Advocate appearing on
behalf of the applicant submits as under:

7.1 Keeping in view the injuries
sustained by the deceased, it is a case of
hanging and not strangulation.

7.2 There was no mention of any
dowry demand in the suicide note, which
was given by the father of the deceased to
the police on 24.11.2021.

7.3 There is nothing on record to
show that the applicant ever instigated or
abetted the deceased to commit suicide.

7.4 At the time of incident, both
the applicant (husband) and his mother
(mother-in-law) of the deceased were in
Lucknow.

7.5 Incident has not taken place
in
the
manner
as
alleged
by
the
prosecution.

7.6 Investigating officers have
conducted one sided investigation in
collusion with the complainant.

7.7 Describing the nature and
behaviour of the deceased, it is submitted
that the deceased was completely free and
very domineering woman. She lived her
independent and luxurious life. She did not
even like anybody stopping her from
coming and going anywhere at any time.
Referring her family photographs filed at
pages 443 to 450, it is submitted that she
was enjoying her family trip with the
husband and in-laws. On 18.11.2020 and
02.4.2021 all the family members including
deceased as well as her both maids namely
Ms. Radhika Kumari and Ms Kiran Kumari
had gone to Goa and Bangalore tour by
flight,
which
itself
demonstrate
that
exaggerated allegations of harassment etc.
against the applicant and his family
members are false.

7.8 It is vehemently urged that in
fact, deceased had tortured the applicant
and
his
mother,
therefore,
Nisha
Kharbanda, mother of the applicant gave a
written complaint dated 13.11.2021 to the
Commissioner of Police, Kanpur about her
harassment
by
the
deceased-Anchal
Kharbanda, on which SI Prem Kumari
made an enquiry and the allegations against
the deceased were found true in the enquiry
report dated 13.11.2021, which has been
made part of CD No. 14. Sub-Inspector
Prem Kumari, along with her report dated
13.11.2021 had submitted a pen-drive
containing video of harassment of Smt.
Nisha Kharbanda, mother of the applicant
by the deceased, but said pen-drive has
been removed by the investigating officer
from the record.

7.9 On 08.02.2022 also Navin
Bhatia, a relative of the applicant sent a
representation by speed post to A.D.C.P
(crime) along with some photographs and
pen drive, in which there is a recording of
very vulgar and abusive conversation
between the deceased-Anchal Kharbanda
and
her
father
Pawan
Grover
for
investigating several aspects of the matter
indicated in the representation. Transcript
1858 INDIAN LAW REPORTS ALLAHABAD SERIES
of the conversation has been filed at page
Nos. 178 to 202 of the paper book. It is
pointed out that reference of the above
documents/evidences has been mentioned
in CD No. 47, but the investigating officer
in collusion with the complainant did not
take pain to investigate the same in correct
perspective.

8. Opposing the prayer for bail of the
applicant, Shri Shiv Kumar Pal, learned
Government Advocate assisted by Shri Om
Prakash
Dwivedi,
learned
Additional
Government Advocate representing the
State and Shri Raghuvansh Mishra, learned
counsel appearing on behalf of the first
informant submit as under:

8.1 The applicant is the husband
of the deceased. The marriage of the
applicant with the deceased took place on
09.2.2019 and she committed suicide on
20.11.2021, i.e. within seven years of
marriage and, therefore, the presumption of
abetment and dowry death under Section
113-A and 113-B of the Indian Evidence
Act respectively shall be drawn against the
applicant and bail application of the
applicant is liable to be rejected on this
ground alone.

8.2 Deceased was a woman of 25
years and she left behind her toddler. The
first information report speaks two essential
details, (a) demand of dowry by the
husband (for the purpose of business of
Suryansh) (Suryansh ke Vyapar hetu). (b)
cruelty by the accused towards the
deceased.

8.3 A week before the incident,
police helpline 112 and 181 were contacted
to make complaints of harassment and
jewelries having been taken forcibly by the
applicant.

8.4
Mobile
phones
of
the
deceased, her mother and father were
collected and made part of case diary.
Computer operator of the police station
made transcript of the whats app chat and
conversation and also gave certificate under
Section 65 of the Indian Evidence Act
regarding its genuineness.

8.5 There was proximate link
between the demand of dowry, cruelty and
suicide committed by the deceased.

8.6 Referring the transcript of
telephonic conversation dated 23.10.2021
between the deceased and her father filed at
Page 279 to 291 of the paper book and
whats-app chat dated 16.10.2021 between
the deceased and her mother, filed at page
271 to 272 of the paper book, it is
submitted that the demand of dowry has
been well established by digital record and
the husband was the source of harassment
of the deceased.

9. In the light of the rival contentions
and the charges levelled against the
appellants and to place the matter in its
correct
perspective,
it
is
considered
necessary to take note of the relevant
materials on record.

10. The first informant Shri Pawan
Grover, during investigation, has also
handed over suicide note to the police on
24.11.2021 purportedly written by the
deceased, which was found in the pocket of
jeans of deceased's son kept in a bag. The
suicide note reads as under:

(Anchal
Kharbanda)
Mera
Beta (Yansh Kharbanda) agar hame zara
si bhi kharoch ya nuksaan pachuchta hai
toh uske zimedaar Bharat Grover,
Meenakshi
Grover,
Suryansh
Kharbanda,
Nisha
Kharbanda
aur
Nikita Kotwani aur Puneet Kotwani
Mujhe bahot torture kar rahe hai
pichhle kuch dino se:
5 All. Suryansh Kharbanda Vs. State of U.P.
1859

(1) Denying money, Bills etc.

(2) Restricted me to go outside (of
house).

(3)If I dared to go out, he won't let me
in.

(4) His mother abuses me all time.

(5) Every night he is out of the house.

11. In order to ascertain the veracity
of the suicide note, it was sent to the
Forensic Science Laboratory, Jhansi, which
confirmed that it was in the handwriting of
the deceased, but so far as signature on the
suicide note is concerned, it does not
correspond with the signature of the
deceased.

12. Statement of the first informant
was recorded on 20.11.2021 in which he
reiterated the versions given in the first
information report.

13. The investigating officer has
recorded the statement of Akshay Grover,
brother of the deceased on 24.11.2021, in
which he has stated that the marriage of his
sister was solemnized with the applicant on
09.2.2019. After the marriage the behaviour
of the applicant towards the deceased was
very cruel. After the deceased became
pregnant, the applicant started mentally and
physically torturing her as the deceased did
not want to deliver the child. On 08.4.2020,
deceased has informed him that her
husband has brutally beaten her. When his
parents went to the matrimonial house of
the deceased to propitiate her in-laws, they
threatened that unless Rs. 70,00,000/-
(rupees seventy lac) will not be given by
them for the business of the applicant, they
will beat the deceased. On 12.11.2021 at
about 8.00 in the night the applicant took
away all the cash and jewelries of the
deceased in two bags, information whereof
had been given by the deceased to the
police by dialing 112 and 181. On
19.11.2021 at about 6.00 P.M., he had a
conversation with the deceased. When he
along with his parents reached the house of
the deceased at about 1.45 AM, they found
the deceased hanging.

14. Instead of recording the statement
under Section 161 Cr.P.C., of Smt. Reena
Grover, mother of the deceased, the
investigating officer has taken her written
statement on 25.11.2021 in which she has
made allegations of demand of dowry of
Rs. 70,00,000/- (rupees seventy lac) and
torture meted out to the deceased by her inlaws.

15. Shri Jitendra Bhalla (maternal
uncle of the deceased), Shri Rajeev Madan,
(Mausa of the deceased) Shri Arun Grover
(uncle of the deceased), Shri Akshay and
Smt. Reeta Grover (aunt of the deceased),
who were the witnesses of inquest
proceedings have given their written
statements.

16. Statement of Radhika, daughter of
Gopal, who has been working in the house
of the applicant and the deceased was
recorded by the investigating officer. She
stated that she has been working in their
house for the last about two years. For
about one and a half year she has been
looking after the son of Anchal (deceased).
Whenever the quarrel take place, Anchal,
her husband and mother-in-law bolt the
room from inside. Applicant-Suryansh used
to slap the deceased. The quarrel started
after the birth of their son. The applicant
used to smoke hookah. His friend also
come to smoke hookah. Whenever, the
applicant works out on the upper portion of
the house, Nisha (mother-in-law) asked not
to go there. She told to the deceased about
this. She further stated that in the night
1860 INDIAN LAW REPORTS ALLAHABAD SERIES
intervening 19/20 between 12.00 and 1.00
in the night deceased after giving the child
to Kiran, left for her room. On knocking
the door, when the door was not opened,
they saw from the glass that deceased was
hanging from the fan. The information to
this effect was given to the applicant from
the phone of guard.

17. In her second statement, which
was recorded on 08.122021, Radhika,
daughter of Gopal stated that Anchal
(deceased) always used to quarrel with
Suryansh (applicant). One day, Anchal
(deceased) beaten the applicant with
broom. Anchal's family members also
came to the house one or two times. Once,
in the presence of her father, Anchal
(deceased) assaulted her husband by
tumbler. She used to say that she will leave
her husband. She does not take care of her
son. She further stated that she along with
Kiran used to take care of deceased's son.
From the conduct of the deceased, it
appeared that she was a little insane. Her
treatment was going on in Madhuraj
Hospital and that she used to take
medicines. On 12.11.2021, quarrel took
place and the deceased was indulged in
chaos and abusing all the members.
Thereafter, the applicant went to her sisters
house along with his mother Nisha. He
came back in the evening and took the
jewelries with him as the deceased was
putting the locker on fire. Thereafter, the
deceased called the police. On 13.11.2021
again police came to the house. Applicant
and Nisha also came. Deceased was also
called by the police. Two-three days before
her death, deceased, while she was talking
to his father, said that she will hang herself.
On 19.11.2021 Kiran saw the scarf
(Chunni) hanging from the fan, thereafter
she removed it. In the night at about 12.00,
when this witness Radhika and Kiran went
to her room to take diaper and knocked the
door, she neither opened the door nor
received the phone. When they went to
balcony, they noticed that she was standing
on the bathroom and her neck was crooked.
On seeing her in that posture, they scared
and informed the applicant from the phone
of guard.

18. Statement of Kiran, daughter of
Suresh, who is also working in the house of
the applicant, was recorded on 20.11.2021.
She stated that she has been working in the
house for about three months. She was with
Ayansh (son of the deceased). At about
12.00 in the night she along with Radhika
knocked the door, but she did not open the
door. Thereafter, she informed the applicant
from the phone of Guard.

19. Second statement of Kiran was
recorded on 08.12.2021, in which she
stated that deceased does not look after her
child. From the conduct of the deceased, it
appeared that she was a little insane. Her
treatment was going on in Madhuraj
Hospital and that she used to take
medicines. On 12.11.2021, quarrel took
place and the deceased was indulged in
chaos and abusing all the members.
Thereafter, the applicant went to her sister's
house along with his mother Nisha. He
came back in the evening and took the
jewelries with him as the deceased was
putting the locker on fire. Thereafter, the
deceased called the police. On 13.11.2021
again police came to the house. Applicant
and Nisha also came. Deceased was also
called by the police. She always used to
quarrel with the applicant and Nisha
(mother of the applicant) and breaks the
household articles of the house.

20. Statement of Ram Pratap Singh,
who was working in the house of the
5 All. Suryansh Kharbanda Vs. State of U.P.
1861
deceased and applicant as guard was
recorded on 20.11.2021. He stated that
whenever quarrel took place between the
applicant and the deceased, their relatives
come to propitiate them. In the night
intervening 19/20.11.2021 both the girls
(maid) came to him and from his mobile
spoken to the applicant. The child was also
with them. After some time, Suryansh
(applicant) and his in-laws along with
police reached there and broken the glass of
room, they found the deceased hanging.

21. In his statement Satish Chandra
Vishwakarma, who was working in the
house of the applicant as guard, has also
stated that on 19/20.11.2021 both the girls
(maid) came to him and asked that they
have to talk to the applicant. Thereafter,
they spoken to the applicant from the
mobile of Ram Pratap. The child was also
with them.

22. Statement of Ram Naresh alias
Ram, who was also working in the house of
the applicant as guard, was record on
24.11.2021 in which he has stated that
quarrel between the applicant and the
deceased was usual and in a month at least
three-four times they used to quarrel.

23. Statement of Raja Ram, who was
also a security guard in the house of the
applicant, was recorded on 24.11.2021 in
which he has stated that quarrel between
the applicant and the deceased was usual.

24. Statements of Amit Singh and
Vivek Yadav, who were working as bouncer
(personal security guard) of the applicant
were also recorded, who have stated that on
the fateful day and time, the applicant were
not at home, but he along with his mother
were living in his sister's house and did not
come to his house at Ashok Nagar since
13.11.2021. Prem Chandra, who was
working as driver of Nisha Kharbanda,
mother of the applicant, also stated that
they were not at home and were living in
Arya Nagar.

25. Having heard the learned counsel
for the parties and examined the matter in
its entirety as well as case diary containing
more that 1600 pages produced by the
Government Advocate representing the
State, I find that the marriage of the
deceased
with
the
applicant
was
solemnized on 09.2.2019. Applicant's house
and parental house (Maika) of the deceased
are in district Kanpur. The deceased was
aged about 25 years and was an able bodied
lady. As per description of Case Diary No.
41 prepared on 03.01.2022, on 12.11.2021
at 22:15:05 from the mobile of Smt. Reena
Grover, mother of the deceased a call was
made at 181 informing the police that
Suryansh (applicant) took all the money
and jewelries from the lockers and at
present he is in the house of his sister.
Again on 13.11.2021 at 19:20:59 a call was
made from the mobile of Reena Grover at
181 to the effect that deceased is being
ousted from her house and that her husband
(applicant) took away all the jewelries. On
15.11.2021 at 08.49.08 again on the call of
Reena Grover, mother of the deceased,
when the police contacted the applicant, he
told the police that there is danger to his
life from the deceased. On 20.11.2021 at
about 01:27:46, Smt. Reena Grover, mother
of the deceased called at 181 informing the
police that her daughter is not picking up
the phone and when the police rushed to
the house of the deceased, they came to
know that deceased has died. At the house
the persons from maternal side of the
deceased were present, whereas no person
from her in-laws was there. Radhika and
Kiran (maid servants) in their statements
1862 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that on 12.11.2021, the deceased was
indulged in chaos and abusing all the
members. Thereafter, the applicant went to
her sister's house along with his mother
Nisha. He came back in the evening and
took the jewelries with him as the deceased
was putting the locker on fire. Thereafter,
the
deceased
called
the
police.
On
13.11.2021 again police came to the house
and that on 20.11.2021 when Radhika and
Kiran went to her room to take diaper and
knocked the door, she neither opened the
door nor received the phone. When they
went to balcony, they noticed that she was
standing on the bathroom and her neck was
crooked. On seeing her in that posture, they
scared and informed the applicant from the
phone of guard. After some time maternal
family members of the deceased along with
police came there and broken the glass and
entered the room.

26. The aforesaid entries in the case
diary coupled with the statements of
Radhika and Kiran go to suggest that the
applicant had removed the jewelries from
the house on 12.11.2021 as the deceased
was putting the locker on fire and was
living in her sister's house and on the day
and time when the deceased committed
suicide, he was not at his home.

27. So far as suicide note which was
found in the pocket of jeans of the toddler
of the applicant and the deceased and was
given to the police by the informant, is
concerned, I find that no allegation of
demand of dowry was levelled by the
deceased against her husband and her inlaws.

28. I also find that in the post-mortem
examination report, except ligature mark,
no other injury was found on the body of
the deceased and viscera was preserved and
as per report of the Forensic Science
Laboratory, Jhansi dated 12.5.2022, in
viscera no poison was found.

29. Further in the conversation
between the deceased and her mother and
father, no specific demand of dowry has
been mentioned by them. I also find that
prior to the incident, neither in the call
recording nor in the whats app chat, there
was any demand of Rs. 70,00,000/- and for
the first time, it has been mentioned in the
FIR.

30. Since Radhika and Kiran, who are
key witnesses in this case because they
always stayed with the deceased-Anchal
Kharbanda and took care of her toddler, in
their statements have exposed the act and
conduct of the deceased that deceased used to
beat the applicant with broom (Jhadu), breaks
the household article, take medicines for her
illness, always indulge in marpeet, putting the
locker on fire and does not care of her toddler
etc., therefore, the investigating officer did
not make the said statements as part of the
charge sheet. Further the investigating officer
has not given any cogent reason in the case
diary for not considering the statements of
Radhika and Kiran and also not including
them in the list of witnesses while submitting
the charge sheet dated 14.2.2022.

31. Along with the bail application
certain photographs were annexed at pages
451 to 454. I find that in some photographs
deceased was seen beating the applicant,
which
find
corroboration
from
the
statement of Radhika and Kiran, whereas it
is argued from the complainant's side that
the said photographs are not genuine.

32. So far as the prosecution case that
the deceased was killed and then hanged
does not find corroboration from the post-
5 All. Suryansh Kharbanda Vs. State of U.P.
1863
mortem
report,
which
shows
that
exaggerated allegations have been levelled.
It appears that after the marriage, the
deceased did not want to deliver a child.
She even did not take care of her toddler,
therefore, wear and tear of matrimonial
issues had arisen. I also find that balance as
on 07.10.2021 in the account of the
deceased was Rs. 1,07,365/-.

33. So far as taking the written
statements of some of the witness of the
complainant's side and treating the same as
statement under section 161 of Cr.P.C. is
concerned, it is well settled that it is a
normal rule of construction that when a
statute vests certain power in an authority
to be exercised in a particular manner then
the said authority has to exercise it only in
the manner provided in the statute itself.
The principle behind the rule is that if this
were not so, the statutory provision might
as well not have been enacted.

34. The F.I.R. was lodged against
eight accused persons, out of whom, five
persons, namely, Minakshi, Annu Khullar,
Puneet Kotwani, Nikita Kotwani and Tanya
Grover
have
been
exonerated
after
investigation and final report has been
submitted in their favour.

35. Smt. Nisha Kharbanda, mother-inlaw of the deceased with similar accusation
and Bharat Grover (Kaku), have been
granted bail by the Coordinate Bench of
this Court vide order dated 27.5.2022 and
10.10.2022
in
Criminal
Misc.
Bail
Application Nos. 3398 of 2022 and 31590
of 2022, which have not been challenged
before the Apex Court as informed by the
counsel for the applicant.

36. Mr. Raghuvansh Mishra, learned
counsel for the complainant heavily relied
upon the section 113-A of the Indian
Evidence Act. On the other hand Mr. Shiv
Kumar Pal, learned Government Advocate
made emphasis upon Section 113-B of the
Evidence Act.
Considering
the
rival
submissions of the learned counsel for the
parties on this issue, here it would be
apposite to discuss about the statuary
presumption under Section113A and 113B
of the Evidence Act, 1872.

37. Section 113A reads as follows:

113A. Presumption as to abetment
of suicide by a married woman.-When
the question is whether the commission of
suicide by a woman had been abetted by
her husband or any relative of her husband
and it is shown that she had committed
suicide within a period of seven years from
the date of her marriage and that her
husband or such relative of her husband
had subjected her to cruelty, the Court may
presume, having regard to all the other
circumstances of the case, that such suicide
had been abetted by her husband or by such
relative of her husband.

Explanation.--For the purposes of this
section, "cruelty"shall have the same
meaning as in section 498A of the Indian
Penal Code (45 of 1860).]

38. It is well settled that the mere fact
that if a married woman commits suicide
within a period of seven years of her
marriage, the presumption under section
113-A of the Evidence Act, 1872 would not
automatically apply. The term "the Court
may presume, having regard to all the other
circumstances of the case, that such suicide
had been abetted by her husband or by
such relative of her husband." would
indicate that the presumption under section
113-A of the Evidence Act, is discretionary
1864 INDIAN LAW REPORTS ALLAHABAD SERIES
and the Court can consider the nature of
cruelty to which the woman was subjected
to, having regard to the meaning of the
word "cruelty" in section 498-A of the
Indian Penal Code. "Abetment of suicide"
is also confined to the case of persons who
aid or abet the commission of the suicide.
In the matter of an offence under section
306 of the Indian Penal Code, abetment
must attract the definition thereof in section
107 IPC. Abetment is constituted by
instigating a person to commit an offence
or engaging in a conspiracy to commit, aid
or intentional aiding a person to commit it.

39. Section113B reads as follows:

113B. Presumption as to dowry
death.-- When the question is whether a
person has committed the dowry death of a
woman and it is shown that soon before her
death such woman had been subjected by
such person to cruelty or harassment for, or
in connection with, any demand for dowry,
the court shall presume that such person
had caused the dowry death.

Explanation. For the purposes of this
section, dowry death shall have the same
meaning as in section 304B of the Indian
Penal Code (45 of 1860).

40. The words "soon before her
death" occurring in Section 304-B of
Indian Penal Code are to be understood in a
relative and flexible sense. Those words
cannot be construed as laying down a rigid
period of time to be mechanically applied
in each case.

41. In the light of Section 113B of the
Indian Penal Code, for the conviction under
Section 304-B of the Indian Penal Code,
the following essential ingredients are to be
established/proved before the Trial Court :

"(a) the death of a woman should be
caused by burns or bodily injury or
otherwise
than
under
a
'normal
circumstances';

(b) such a death should have occurred
within seven years of her marriage;

(c) she must have been subjected to
cruelty or harassment by her husband or
any relative or her husband;

(d) such cruelty or harassment should
be for or in connection with demand of
dowry; and

(e) such cruelty or harassment is
shown to have been meted out to the
woman soon before her death."

42. In the case in hand, accused is
husband and is seeking bail pending trial.
The issue which arises before this Court is
whether if wife committed suicide within a
period of seven years from the date of her
marriage, the bail prayer of accusedhusband is liable to be rejected straight
away
merely
by
drawing
adverse
presumption of abetment of suicide under
Section 113-A of the Evidence Act, or
presumption of dowry death under Section
113-B of the Evidence Act ?

43. In the light of above issue, it is
relevant to mention the brief background of
the case. Initially in the F.I.R. it was the
case of the complainant that the deceased
was killed and then hanged, but in the
investigation the same does not find
corroboration from the post-mortem report,
as cause of the death of the deceased has
been found due to hanging. She committed
suicide in her room which was locked from
inside. Admittedly on the day of the
incident, the accused-applicant (husband)
and his mother (mother-in-law) were not in
the house at Kanpur but they were in
Lucknow. In the suicide note produced by
father of deceased, there is no allegation of
5 All. Suryansh Kharbanda Vs. State of U.P.
1865
demand of dowry. It is a case where
allegation of cruelty has been levelled by
both the sides against each other, but
investigating officer has conducted one
sided investigation and submitted chargesheet in haste manner on 14.02.2022
through
Case
Diary
No.
46
dated
14.02.2021 against the applicant only
relying upon the statements of the family
members of the deceased ignoring other
materials in favour of the accused-applicant
on record, on which, concerned court
below took cognizance on 17.02.2022.
Even
the
transcript
of
telephonic
conversations between the deceased and
her father on which learned Government
Advocate and learned counsel for the
complainant heavily relied upon has been
brought on record by the investigating
officer through Case Diary No. 57 dated
28.03.2022 much after submitting chargesheet against the applicant and taking
cognizance of the case. Material evidences
provided from the side of the accused
though have been taken on record through
case diary Nos.14 and 47, but no
investigation has been done on the same,
for
the
reason
best
known
to
the
investigating officer.

44. There is no dispute that the
parameters for considering the bail of
accused pending trial and conviction or
acquittal
of
accused
after
adducing
evidences by both the parties before the
trial Court are different. This Court is of the
view that each case turns on its own facts
and circumstances. Even a little difference
between the facts of two cases, may alter
the entire aspect.