* + IN THE HIGH COURT OF DELHI AT NEW DELHI Crl.Appeal No.884/2001 Date of Decision: July 28th, 2017 SAVITA ..... Appellants Through Mr.K.K.Sud, Sr.Adv. with Ms.Vaishali Soni, Advocate. versus STATE OF DELHI ….. Respondent Through Mr.Kewal Singh Ahuja, APP. + Crl.Appeal No.10/2002 MEHTAB SINGH & ANR. ..... Appellants Through Mr.K.K.Sud, Sr.Adv. with Ms.Vaishali Soni, Advocate. versus STATE OF DELHI ….. Respondent Through Mr.Kewal Singh Ahuja, APP. CORAM: HON'BLE MR. JUSTICE P.S.TEJI P.S.TEJI, J.
1. By this common order, I shall dispose of the two appeals – one filed by the mother-in-law of the deceased being Criminal Appeal No.884/2001 and the other being Criminal Crl.Appeal Nos.8
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Page1 of 16 Appeal No.10/2002, filed by the father-in-law and husband of the deceased. The father-in-law has died during the pendency of the appeals.
2. Both the abovementioned appeals have been filed against the judgment dated 30.10.2001 whereby the appellants were found guilty and convicted for offences punishable under Section 498A & 304B/34 IPC and order on sentence dated 06.11.2001 whereby they have been sentenced to RI for ten years each under Section 304B IPC and to undergo RI for three years under Section 498A IPC.
3. The facts of the cases, as per the case of the prosecution are that in DD No.6-A dated 19.10.1996, information was received in the police station from RML hospital at 6.45 AM whereby duty constable Narender Kumar had reported that one Sangeeta wife of Jitender of village and PO Khera had been admitted in the hospital by her father-in-law in a burnt condition. On this information, ASI Mahender Singh left with Constable Ravinder Kumar for the house of the deceased. Deceased Sangeeta died in the hospital of the said burns at Crl.Appeal Nos.8
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Page2 of 16 9.10 am on the same day. Crime team had reached the house of the deceased and had inspected the site from 12.20 P.M. to 1.15 p.m. on 19.10.1996. As per the report of ASI Mahender Singh, the father of the deceased had arrived by the time he had returned. The SDM could not be contacted and on being available, he recorded the statement of father of the deceased on 22.10.1996 and directed the IO to register a case under Section 304B IPC. Inquest proceedings were conducted by the SDM as deceased died within six months of her marriage. The father of the deceased had alleged that the accused persons used to harass and torture his daughter for demand of dowry. The accused persons had demanded Rs.1,00,000/- and Hero Honda motorcycle through his daughter.
4. The statements of Smt.Phula Devi, mother of the deceased and Sh.Bhagwan, brother of the deceased were recorded in which they alleged that accused to demand dowry from the deceased and deceased was tortured and harassed by the accused persons. It was also alleged against the accused persons that in the evening of 18.10.1996, Shri Bhagwan had Crl.Appeal Nos.8
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Page3 of 16 gone to the house of the deceased for giving her gifts. Sangeeta was found crying as the accused persons were taunting her for bringing insufficient dowry. Brother of the deceased heard the screams and when he rushed to the roof of the house, he saw his sister in flames. At that time, accused Mehtab Singh was standing on the terrace while the other accused were standing on the staircase. On seeing Shri Bhagwan, accused Mehtab Singh shouted to other co-accused persons to do the same thing to Shri Bhagwan which was done to Sangeeta. Shri Bhagwan being terrified, ran away and narrated the entire incident to his parents. Father of the deceased reached the matrimonial house of the deceased where he came to know that she had died.
5. During investigation, IO had seized the broken bangles, burnt clothes and bottle containing kerosene oil from the terrace. A suicide note written by the deceased was also seized. A note book having writing of the deceased was given by the father of the deceased of the IO which was seized. After completion of investigation, charge sheet was filed. Crl.Appeal Nos.8
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Page4 of 16 6. Charge under Section 498A/304B/34 of IPC was framed against all the accused persons to which they pleaded not guilty.
7. In support of its case, the prosecution had examined, PW-1 Inder Singh, PW-2 Shri Bhagwan, PW-3 Phula Devi, PW-4 Dr.Deepak Gupta, PW-5 Dr.Ashok Jaiswal, PW-6 Dr.Arun Gupta, PW-7 HC Dhani Ram, PW-8 Const. Narender, PW-9 Const. Raj Singh, PW-10 SI Nand Ji, PW-11 Sh. Parkash Chand, PW-12 Ms.Deepa Verma, PW-13 ASI Mahender Singh and PW-14 SI Jaipal Singh.
8. After completion of prosecution evidence, statements of the accused persons under Section 313 Cr.P.C. were recorded in which they claimed innocence and false implication. In support of defence, they examined DW-1 Shiv Narayan, DW-2 Kapoor Singh and DW-3 Om Parkash.
9. The grounds challenging the judgment and order on sentence are that there has been a complete misreading of the material placed on record by the Ld. Trial Court Judge and as such the findings are not maintainable. The police had held Crl.Appeal Nos.8
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Page5 of 16 inquest proceedings on 20.10.1996 wherein the statement of appellant Mehtab Singh had been recorded for the identification of the dead body of the deceased, but the other documents pertaining to these proceedings have been suppressed dishonestly by the prosecution. Moreover, counsel for the appellants argued that the Trial Court erred in relying upon the statement of the parents and the brother of the deceased as the same were given to the SDM and the police after much deliberations and consultations after a period of three days from the date of incident, when the brother of the deceased narrated the incident to his parents. The father of the deceased after having reached the spot had refused to make a statement and told the police that he would do the same only after consulting his family members.
10. Per contra, arguments advanced by learned Additional Public Prosecutor for the State are that the appellants have been rightly held guilty under Sections 498A/304B IPC by the trial court. The father as well as other relatives of the deceased have duly supported the case of prosecution that the deceased was Crl.Appeal Nos.8
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Page6 of 16 subjected to cruelty and harassment on account of demand of dowry by the appellants. There is sufficient evidence against the appellants to hold them guilty for the offences of harassment on account of demand of dowry and of dowry death.
11. Arguments advanced by the counsel for the appellants as well as learned APP for the State were heard.
12. PW-1 Sh.Inder Singh, father of the deceased had deposed that Sangeeta was married to Jitender on 20.04.1996 and after marriage they started living in Village Khera Delhi. When his daughter went for the second time to her matrimonial home, her husband, mother-in-law, father-in-law and sister-in- law, started harassing her for dowry. They used to demand Rs.1,00,000/- in cash and Hero Honda motorcycle. The said facts were disclosed to him by his daughter. In September, when Jitender came to take his daughter, they told him that they would give him motor cycle and gave Rs.10,000/- to him. On 18.10.1996, his son Shri Bhagwan went to village Khera to give Dusshera to the deceased. On that day, at about 2.30 or 3 AM, Shri Bhagwan heard the shouts of Sangeeta and he rushed Crl.Appeal Nos.8
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Page7 of 16 towards the place from where the shouts were coming. His son had disclosed the incident to PW-1 regarding burning of his sister. His son also disclosed that when he went to rescue his sister, accused Mehtab Singh stated to other accused persons to catch him and do the same to him which had been done to his sister. His son ran from there and disclosed PW-1 that Sangeeta had been killed. He had proved his statement as ExPW1/A made before the SDM. He also deposed that the letter mark A was not in the hand writing of his daughter Sangeeta. He had handed over a note book ExPW1/C having hand writing of Sangeeta.
13. PW-2 Shri Bhagwan, brother of the deceased had deposed that on 18.10.1996 he had gone to the house of his sister Sangeeta to give her festival gifts. Sangeeta was crying and told him that her father-in-law was demanding Rs.1,00,000/- and was not happy. At about
AM, he heard some shouts, got up and saw that accused Mehtab was standing on the terrace. Sister-in-law, husband and mother-in-law of the deceased were standing in the staircase. When PW-2 went Crl.Appeal Nos.8
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Page8 of 16 towards them, accused Mehtab told to do the same with PW-2 as was done with the deceased Sangeeta. He saw Sangeeta on fire on terrace. He got scared and ran back to his house and disclosed the incident to his parents.
14. PW-3 Smt. Phoola Devi, mother of the deceased, had deposed that Sangeeta was married to Jitender whereas his daughter Anita was married to Anil, younger brother of accused Jitender. Sangeeta came to her and told that her in- laws were harassing her. Accused Jitender used to beat her and demand one motor cycle and Rs.1,00,000/-. After 2-3 months of marriage, her son Shri Bhagwan went to the matrimonial house of Sangeeta. In-laws of Sangeeta started quarrelling with Shri Bhagwan that they had not given anything in dowry at the time of marriage. Her son stayed there and in the night about 3am, he heard the shouts and saw that Sangeeta was burning on the roof. He heard the accused Mehtab say that Shri Bhagwan should also be caught and the same be done to him upon which he ran away from there, came to his house and Crl.Appeal Nos.8
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Page9 of 16 narrated the incident to them that Sangeeta had been burnt by her husband, mother-in-law and sister-in-law.
15. From the testimony of father (PW1), brother (PW2) and mother (PW3) of the deceased, it has duly been established beyond reasonable doubt that the appellants had been harassing the deceased for on account of demand of dowry. They have consistent in their depositions that the accused persons used to demand Rs.1,00,000/- in cash and motorcycle from the deceased and the deceased was harassed on that account. Thus, it has been proved beyond reasonable doubt that the appellants had harassed and meted the deceased with cruelty on account of demand of dowry. Thus, the conviction of appellants under Section 498A/34 IPC needs to be upheld.
16. The appellants, apart from treating the deceased with cruelty on account of demand of dowry, have also been convicted for commission of dowry death.
17. In the case of Devi Lal vs. State of Rajasthan AIR2008SC332 Hon'ble Apex Court has observed that the ingredients Crl.Appeal Nos.8
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Page10 of 16 of provisions of section 304 B IPC are (1) that the death of the woman was caused by any burns or bodily injury or in some circumstances which were not normal; (2) such death occurs within 7 years from the date of her marriage ; (3) that the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) such cruelty or harassment should be for or in connection with the demand of dowry ; and (5) it is established that such cruelty and harassment was made soon before her death. It was further observed that before an accused is found guilty for commission of an offence, the Court must arrive at a finding that the ingredients thereof have been established. It was held that statement of a witness for the said purpose must be read in its entirety. It is not necessary for a witness to make a statement in consonance with the wording of the section of a statute. What is needed is to find out whether the evidences brought on record satisfy the ingredients thereof.
18. Necessary ingredients of dowry death as provided under Section 304B of IPC are : Crl.Appeal Nos.8
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Page11 of 16 (i)Deceased was the subject matter of cruelty on account of dowry and culminates into guilt of accused under Section 498A IPC; (ii)The death should have taken place due to bodily injuries other than in normal circumstances; and (iii)Such death was the subject matter of cruelty ‘soon before death’.
19. To constitute an offence under Section 304B IPC of dowry death, the presumption under Section 113B of the Evidence Act cannot be raised against an accused until independently the offence under Section 498A IPC is proved by leading evidence to the specific allegation with regard to time and date of such demand and cruelty and furthermore establishing the proximate live link between the effect of cruelty based on dowry demand and the death of the victim.
20. The factum of marriage of the deceased with the appellant Jitendar is not under dispute. It is also not in dispute that the marriage of the deceased was solemnized with the Crl.Appeal Nos.8
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Page12 of 16 appellant Jitender on 20.04.1996 and she died on 19.10.1996 i.e. within a few months of marriage i.e. within seven years of her marriage with the appellant Jitender.
21. In the present case, as discussed in the former paragraphs of this judgment, there is sufficient evidence to establish that the deceased was subjected to cruelty on account of dowry and that the appellants are guilty for the offence punishable under Section 498A/34 IPC.
22. Prosecution witness PW5 Dr. Ashok Jaiswal had deposed that he had conducted the post mortem examination on the body of the deceased Sangeeta. He has testified that burns were ante- mortem in nature caused by flames and death was due to hypovolemic shock consequent to the burns. He has proved on record his report as Ex.PW5/A and the 11 inquest papers submitted by the IO as Ex. PW5/B/1-11.
23. From the opinion of the doctor (PW5) and the post mortem report Ex.PW5/A of the deceased, it has duly been established that the death of the deceased was caused by burn Crl.Appeal Nos.8
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Page13 of 16 injuries and it was not under normal circumstances as it was not a natural death, which duly proves another essential ingredient of Section 304B IPC.
24. Now the ingredient to be proved is whether the deceased was subjected to harassment or cruelty on account of demand of dowry soon before her death or not. To prove this aspect, the testimony of brother of the deceased is vital.
25. PW2 Shri Bhagwan, brother of the deceased has stated that on 18.10.1996 he had gone to the matrimonial house of his sister, the deceased, and found her crying and telling him that her father in law was demanding Rs.1,00,000/- and that they were not happy. In the evening, Bhagwan slept with Anil and at about 2/3AM, he heard some shouts and got up and saw that Mehtab was standing on the terrace of his house. Sister in law, husband and mother in law of the deceased were standing in the stairacase and he saw deceased who was on the terrace, on fire. This statement of the witness (PW2) duly covers the case of prosecution to bring it under the ambit of cruelty or harassment Crl.Appeal Nos.8
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Page14 of 16 meted out to the deceased on account of demand of dowry, soon before her death.
26. The defence has failed to put any dent to his testimony to the effect that the deceased was harassed on account of demand of dowry by the appellants soon before her death. There is no cross-examination of this witness (PW2) to impeach his testimony. From the unimpeached testimony of PW2, it has duly been established that the deceased was subjected to cruelty and harassment for or on account of demand of dowry soon before death. Thus, the prosecution has successfully established another essential ingredient of Section 304-B IPC. The contention of the appellants that the testimony of prosecution witnesses cannot be relied upon as the same are full of material contradictions holds no merit. From a careful reading of the testimony of prosecution witnesses, this Court finds that they are of material evidence and sufficient to prove the guilt under Section 304-B IPC.
27. From the totality of the discussion made above, this Court is of Crl.Appeal Nos.8
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the considered opinion that the prosecution has Page15 of 16 successfully established its case against the appellants beyond reasonable doubt, that they had committed the dowry death of the deceased. All the ingredients of dowry death as provided in Section 304-B of IPC have duly been established. Thus, the conviction of appellants under Section 304-B/34 IPC deserves to be upheld.
28. In view of the discussion made above, this Court does not find any ground to interfere with in the judgment of conviction and order on sentence passed by the trial court. Thus, the judgment of conviction of the appellants under Section 498A and 304B IPC and order on sentence are accordingly upheld.
29. Appellants are on bail. Their personal bonds and surety bonds stand cancelled. They are directed to surrender before the trial court concerned within a period of 15 days to serve the remainder of sentence.
30. The appeal is disposed of accordingly. JULY28 2017/dm Crl.Appeal Nos.8
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(P.S.TEJI) JUDGE Page16 of 16