* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : December 17, 2008
Judgment delivered on : January 06, 2009
+ Crl. A. No.293/1999
Shyam Sunder ... Appellant
Through: Mr. Mukesh Kalia and Ms
Sumita Kapil,Advocates
versus
The State ... Respondent
Through: Mr. Amit Sharma,
Additional Public
Prosecutor for State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may
be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SUNIL GAUR, J.
1. In this appeal, appellant is the husband of Rajni who had died unnatural death by burning in her matrimonial house, within about four years of her marriage and the appellant has been convicted by the trial court for subjecting Rajni (since deceased) to cruelty and of causing her dowry death. Trial court vide impugned order of 30th April, 1999 had sentenced the appellant to RI for seven years and to pay a fine of rupees one thousand for the offence under Section 304-B of the Indian Crl.A. No. 293/1999 Page 1 Penal Code and he has been sentenced to a period of two years and to a fine of Rs.500/- for the offence under Section 498-A of the Indian Penal Code. However, aforesaid sentences have been ordered by the trial court to run concurrently.
2. The facts of this case, in brief, are as follows :-
On 14.1.1994, Sub Inspector Kamal Singh received DD No.9-A at police station Parshad Nagar, Delhi and he alongwith Constable Banwari Lal went to 16/235, Bapa Nagar I-Block and found one dead body in burnt condition at the roof of that house. Sub Inspector Kamal Singh, Investigating Officer (IO) informed the SDM and called Crime Team at the spot. SDM came at the spot who inspected the dead body and conducted the proceedings under Section 176 Cr.PC. The SDM had ordered to preserve the dead body of the deceased Smt. Rajni. The scene was photographed by the Crime Team. Investigating Officer recovered one aluminium drum, one aluminium jug, one yellow rope, one red colour sweater, one salwar of sky colour with jumper in burnt condition, one match box, one burnt tyre of vehicle and took them into possession after sealing with his seal KS vide memos Ex.PW9/A to Ex.PW9/F. Burnt pieces of quilt were also taken into possession. Dead body was sent for preservation. On 15.1.1994, Investigating Officer went to the office of SDM alongwith the mother of the deceased Smt Sudesh and her brother Ravinder Kumar. SDM recorded their Crl.A. No. 293/1999 Page 2 statements Ex.PW5/B and Ex.PW5/C. SDM directed the Investigating Officer to register a case against appellant Shyam Sunder, husband of the deceased. Investigating Officer made endorsement vide Ex.PW13/A and got the case registered in police station under Section 498-A/304-B of IPC. On the same day, Investigating Officer went to the house of the appellant where appellant was not found. Investigating Officer prepared the site plan Ex.PW13/B, recorded the statements of witnesses. On 16.1.1994, Investigating Officer again visited the house of the appellant and arrested him in this case. Post-mortem was conducted on the dead body and thereafter the dead body was handed over to her mother. Investigating Officer sent sealed parcel to CFSL. After completion of investigation, charge-sheet under Section 498- A/304-B of IPC was filed against the appellant.
3. Appellant/accused was put to trial for commission of aforesaid offences, as he had pleaded not guilty. During the trial, thirteen witnesses have deposed and out of them, the material evidence is of Smt Sudesh (PW-1), mother of the deceased, Ravinder Kumar (PW-2), brother of the deceased, Shri P.C. Chaturvedi (PW-5), SDM, who had conducted the inquest proceedings and that of Dr. S.K. Khanna (PW-4) who has opined the cause of death of Rajni as due to shock consequent upon ante-mortem burns. Swatantra Bhushan (PW-
3) is the neighbour of appellant/accused who has not Crl.A. No. 293/1999 Page 3 supported the prosecution case. SI Kamal Singh (PW-13) is the Investigating Officer of this case.
4. The stand taken by the appellant/accused before the trial court is of denial of the prosecution case and of Rajni remaining sick and of her committing suicide on account of her sickness and not because of harassment for dowry. No evidence in defence was led by the appellant before the trial court.
5. Both the sides have been heard in this appeal and the evidence on record has been analysed.
6. It has been pointed out by learned counsel for the appellant that on 18th July, 1994, although amicus curiae counsel was provided by the trial court to the appellant/accused but thereafter he did not appear and the trial proceeded, without cross-examination of the material witnesses i.e. PW-1 and PW-2 by the Amicus Curiae Counsel and appellant/accused had cross examined them on the directions of the trial court, which has resulted in great prejudice to the appellant.
7. On merits, it is found that the evidence of mother (PW-1) and brother (PW-2) of the deceased reveals that no dowry was given at the time of marriage of Rajni with accused/appellant as mother and brother of the deceased were said to be poor persons. It has also come in evidence on record that Rajni had Crl.A. No. 293/1999 Page 4 lived happily with accused/appellant for about one year after her marriage. Thereafter, Rajni had given birth to a daughter and then the demand for rupees ten thousand for purchase of three wheeler scooter or demand for the said scooter was purportedly made by the appellant/accused and since the aforesaid demand was not met, there was harassment of Rajni by the appellant/accused. Mother of the deceased has stated in her statement Ex.PW1/A before the SDM, (which is duly proved by her in her evidence) that appellant/accused used to sell tea but earlier he used to ply three wheeler scooter and that the appellant/accused was a drunkard and he used to harass the deceased as demand for rupees ten thousand or a three wheeler scooter was not met and about one and a half years, prior to this incident, Rajni was left at her parental house, where she lived for about one year and thereafter, on request of the relatives of both the families, Rajni was taken back by the appellant, on the promise that he will not harass her again.
8. Aforesaid version is sought to be dislodged by the defence by contending that both the sides were poor and marriage in question was performed, after brother of the deceased had arranged for rupees fifteen thousand and since family of the deceased was not in capacity to pay anything, there was no point in making any demand for dowry or for harassing the deceased on that account.
Crl.A. No. 293/1999 Page 5
9. Above said contention does not cut any ice, because greed sees no reason. It really does not matter to greedy people, as to whether the demand for money/dowry is met by begging, borrowing or stealing. In any case, appellant/accused need not be legally qualified to ask the mother and brother of the deceased in cross examination as to how any demand could have been made to them by the appellant/accused on account of their poverty. There is no cross examination of the mother and brother of the deceased by the appellant on the abovesaid vital aspect. It is true that the trial court was not right in observing that no specific suggestions have been given by the appellant/accused to the witnesses, but in any case, on facts, there should have been effective questioning of the mother and brother of the deceased by appellant/accused as a layman.
10. When the crucial evidence of the mother and brother of the deceased is considered as a whole, it becomes crystal clear that their evidence remains unshaken, so far as the offence under Section 498-A of the Indian Penal Code is concerned. However, it transpires from their evidence that the necessary ingredients of harassment/cruelty "soon before the death" is completely missing. There has to be proximate and live link between the effect of cruelty based on dowry demand and the unnatural death. In this regard, decisions of the Apex Court reported in 2004 (1) JCC 627; 2005 (1) JCC 338 and Crl.A. No. 293/1999 Page 6 2007 IV AD Criminal (SC) 565 can be referred to with advantage.
11. The evidence on record is completely silent as to what had happened during the period of one and half years i.e. between the period of her return to her matrimonial house and her unnatural death. Trial court has gravely erred in overlooking the above said vital aspect and has committed a material illegality in convicting the appellant/accused for the grave offence of dowry death.
12. Although it stands proved from the evidence on record that the deceased had died unnatural death in her matrimonial house but unless and until, prosecution succeeds in proving that the deceased was subjected to cruelty soon before her death, statutory presumption under Section 113-B of the Evidence Act cannot be raised against the accused. As already observed above, prosecution has failed to establish the necessary ingredients of the offence of dowry death, of proving that "soon before her death", deceased was subjected to cruelty on account of dowry demand or insufficiency of dowry, therefore, it was not legitimate on the part of the trial court to have drawn adverse inference against the appellant/accused of failing to prove that the deceased used to remain sick or of her committing suicide on that account. In my considered opinion, Crl.A. No. 293/1999 Page 7 the conviction of the appellant/accused for the offence of dowry death is unsustainable and is thus set aside.
13. The offence of "abetment of suicide" is a lesser offence, than that of "dowry death". This Court in the case of Mamta Sahu (Smt) V. State of Delhi 2005 IV AD (Criminal ) DHC 157, has highlighted the ingredients of Section 306 of the Indian Penal Code i.e. the offence of "abetment of suicide" in the following words:-
" WhenSection 107 of the Indian Penal Code is read carefully, it is clear that for constituting abetment, the accused should either instigate any person to do the thing or engages with one or more other person or persons in any conspiracy for the doing of that thing of intentionally aid by any act or omission the doing of that thing. There are two explanations to this Section. A person who by wilful misrepresentation, or by wiflful concealment of a material fact can be said to have instigated the thing which is done on account of such concealment or misrepresentation. Explanation 2 prescribes that an abetment can be done either prior to or at the time of of the commission of that act. In the present case, there is nothing to suggest that the accused had instigated or aided the deceased in commission of suicide. Nor is there any evidence to show that she had engaged with some other person or persons for doing any act. There is no evidence that any concealment or misrepresentation on her part had led the deceased to commit suicide. There is no evidence that she in any way did anything to facilitate the commission of suicide by the deceased"
14. In the instant case, except a vague assertion by mother of the deceased of Rajni complaining to her about harassment by the accused/appellant, there is nothing on record to show as to by what conduct, appellant/accused had abetted or Crl.A. No. 293/1999 Page 8 instigated his wife to commit suicide. To my mind, the evidence on record is clearly insufficient for convicting the appellant even for the offence under Section 306 of the Indian Penal Code.
15. Vide impugned judgment/order, appellant/ accused has been sentenced by the trial court to RI for two years for commission of offence under Section 498-A of the Indian Penal Code. During the course of the arguments, learned counsel for the appellant had brought to the notice of this court that the appellant has already deposited the fine and has undergone substantive sentence of one year in this case. Considering the fact that the appellant has faced the trial and the appeal proceedings in this case since January, 1994 and the fact that he has been on bail for most of the period in these proceedings and that the daughter of the appellant is of marriageable age by now, ends of justice would be met, if the sentence of two years is reduced to the aforesaid period of one year already undergone in judicial custody by the appellant. It is ordered accordingly. Substantive Sentence imposed upon the appellant for the offence under Section 498-A of the Indian Penal Code stands reduced to the period already undergone by him in judicial custody and his conviction and sentence for the offence under Section 304-B of Indian Penal Code is set aside. Appellant is on bail. His bail bonds and surety bonds are discharged.
Crl.A. No. 293/1999 Page 9
16. It needs to be noticed that although the main grievance of the appellant was that the constitutional obligation of the State of providing fair trial for a serious offence like the present one, has not been fulfilled and, therefore, this case merits re-trial. Since the appellant has virtually succeeded on merits, therefore, this aspect need not be gone into in great detail.
17. However, before parting with this order, with great concern, it is noted that the evidence of the mother and brother of the deceased was recorded by the trial court on 2 nd January, 1997 and they ought to have been cross examined by Amicus Curiae Counsel but instead thereof, the accused himself was called upon to cross examine these two material witnesses. The order sheet of the trial court of 2nd January, 1997 speaks for itself and reads as under :-
"2/1/97 Pres: APP for State.
Accd. on bail.
PW 1,2 and 3 examined & discharged.
No other PW is present.
Put up on 21/3/1997 for RPE.
At this stage accd. requests for another Amicus Curiae as the previous Amicus Curiae has left the practice. Accordingly, I appoint Shri P.S. Singhal, Adv. as Amicus Curiae. Notice be sent to him.
Sd/-
ADJ/2.1.97"
Crl.A. No. 293/1999 Page 10
18. To say the least, aforesaid approach of the trial court is highly unsatisfactorily and does not disclose the any sensitivity in the conduct of a criminal trial at Sessions level. Trial court was of oblivious of the dictum of the Apex court rendered way back in the case of Sukdas V. Union Territory of Arunachal Pradesh (1986)2 Supreme Court Cases 401 which is to the effect that the criminal trial ought not to proceed without adequate legal representation being afforded to the accused and the accused need not seek free legal aid and if he is unrepresented by a counsel, then the courts are duty bound to provide free legal aid to such an accused.
19. A word of caution, which needs to be sounded to the trial courts, is that the free legal assistance to be provided has to be "adequate". Meaning thereby, in the "Sessions Trial", legal aid counsels of reasonable standing and experience ought to be provided to unrepresented accused and in any case, trial court should desist from examining material witnesses, in the absence of legal aid counsels, save and except in extraordinary circumstances, which ought to be brought on record.
20. The need for sounding the aforesaid note of caution arose as it was brought to the notice of this Court by learned counsel for the appellant, during the course of hearing of this appeal, Crl.A. No. 293/1999 Page 11 that in Sessions Trial for serious offences, immature legal aid counsels are randomly provided by the trial courts, which causes serious prejudice to the poor accused. In this background, it is deemed appropriate that copy of this order be sent to the learned District & Sessions Judge-I at Tis Hazari Courts , Delhi to sensitise the trial courts in the matter of providing legal aid counsels.
21. With aforesaid directions, this appeal stands partly allowed, to the extent indicated above.
SUNIL GAUR, J
January 06, 2009
dkg
Crl.A. No. 293/1999 Page 12