* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on: May 01, 2009
Judgment delivered on: May 18, 2009
+ Crl. A. No. 497/1999
% Laxmi Saran ... Appellant
Through: Mr. R.K. Mehta, Advocate
versus
The State (N.C.T. of Delhi) ... 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. Appellant- Laxmi Saran, is the husband of the deceased, who has been convicted and sentenced vide impugned judgment/ order for committing offence of dowry death more than twelve years ago.
2. Appellant was married to Raj Bala in the year 1991. For a period of about 1½ months, after this marriage, Raj Bala had stayed in her matrimonial house happily with the appellant. It is stated that after about two months of this marriage, appellant had demanded a sum of rupees Crl. Appeal No. 497 of 1999 Page 1 twenty thousand for running some business and the said amount was paid by Krishan Kumar (PW-1), who happens to be brother of Raj Bala. According to brother (PW-1) of Raj Bala, she used to visit her parental house three or four times in a year and she used to tell him that appellant used to demand colour television, fridge and other articles from time to time and the appellant did not use to do any work and he was a drunkard and was a gambler.
3. On 9th October, 1996, at about 9:30 p.m., information was received from the house of the appellant that Raj Bala was missing. A dead body of a female was found at railway lines near Village Shahbad, Mohd. Pur in Delhi and information of this case was received vide DD No. 12 (EX. PW7/A) and it was identified to be of Raj Bala. Inquest proceedings followed, post mortem on the dead body of Raj Bala was conducted, the statements of brother (PW-1), mother (PW-2) and sister (PW-3) of the deceased were recorded. Appellant/accused was arrested during the course of the investigation of the case. After the investigation was complete, charge sheet for the offence under Sections 304-B/498-A of the Indian Penal Code (hereinafter referred to as the 'IPC') was filed.
4. Trial commenced as the appellant/accused chose to contest the charges framed against him for the above said Crl. Appeal No. 497 of 1999 Page 2 offences. An alternate charge under Section 306 of IPC was also framed, which was also contested by appellant/ accused.
5. In all, seven witnesses have deposed in this case and the prosecution evidence primarily consisted of the evidence of brother (PW-1), mother (PW-2) and sister (PW-
3) of the deceased. Doctor S. Saxena (PW-6) has proved the post-mortem report of the deceased, ASI Dalip Singh (PW-7) is the Investigating Officer of this case. After the prosecution evidence was over, statement of the appellant/accused was recorded by the trial court, in which he had denied the incriminating evidence, which came on record against him. Appellant pleaded that he was innocent and his wife had committed suicide because she was depressed and frustrated, as she could not bear a child and that he was not responsible for her death. Appellant had got examined his sister-in-law (bhabhi) (DW-1), who gave clean chit to the appellant by stating that the appellant is her brother-in-law (jeth) and the deceased used to remain upset, because, she could not bear a child and the deceased was being treated for infertility. She had stated in her evidence that she had never seen the appellant quarrelling with the deceased and no cruelty was meted out to the deceased by the Crl. Appeal No. 497 of 1999 Page 3 appellant. The trial concluded with the conviction of the appellant for the offence of dowry death. Vide impugned of 31st August, 1999, the trial court has sentenced the appellant to rigorous imprisonment of seven years for the offence of dowry death and he has also been sentenced for commission of offence under section 498-A of the IPC to rigorous imprisonment of two years with fine of Rupees five hundred, which is assailed in this appeal.
6. Both the sides have addressed their respective submissions and have assisted this court in scrutinizing the evidence on record.
7. The foremost contention advanced by learned counsel for the Appellant is that there are no allegations in the statements made by the relatives of the deceased, before the SDM that the deceased was subjected to cruelty and harassment by the appellant/accused for bringing more dowry or on account of insufficiency of dowry. It is further contended that the allegations leveled by the relatives of the deceased against the appellant/accused are quite vague and there is no independent witness to corroborate these allegations and in any case, there is no evidence worth the name, to incriminate the appellant/accused regarding deceased being subjected to cruelty „soon before her death‟, by the Crl. Appeal No. 497 of 1999 Page 4 appellant/accused. The argument advanced was that the deceased was a short tempered lady and she used to remain depressed because she could not bear a child and therefore, she had committed suicide and the appellant/accused is no way responsible for it. Lastly, it is contended that the Apex Court, in its decision, in AIR 2004 SC 1747 had given benefit of doubt to the accused as the witnesses had improved upon their versions and the allegations were not specific. Thus, it is contended that the impugned judgment is illegal and deserves to be set aside and the appellant/accused ought to be acquitted.
8. On behalf of the Respondent-State, impugned judgment and order is defended by learned Additional Public Prosecutor for the State, by submitting that it is factually incorrect that there are no allegations of harassment of the deceased by the appellant/accused in the statement made by brother (PW-1), mother (PW-2) and sister (PW-3) regarding deceased being subjected to cruelty on account of dowry demands. It is submitted that the decision of the Apex Court relied upon by the appellant/accused is distinguishable on facts and the evidence on record supports the conviction and sentence imposed upon the appellant/accused. Nothing else is urged by either side.
Crl. Appeal No. 497 of 1999 Page 5
9. In order to attract section 304-B of Indian Penal Code, what is required to be established by the prosecution is that the unnatural death of a lady must have occurred within seven years of marriage and „soon before her death‟, such a woman has been subjected to cruelty or harassment by her husband or the relatives of the husband and the said cruelty/harassment must be in connection with the demand of dowry.
10. It is not in dispute that the prosecution has succeeding in proving that wife of the appellant/accused had died unnatural death within about five and half years of her marriage with the appellant/accused. Before statutory presumption under section 113-B of Evidence Act can be raised against the accused, the essential ingredients of the offence of dowry death, which the prosecution is duty bound to prove, is that deceased was subjected to cruelty/harassment by her husband.
11. In view of the aforesaid, the evidence of the three material witnesses of this case, i.e., of brother (PW-1), mother (PW-2) and sister (PW-3) of the deceased has been scrutinized. It has been found that the aforesaid three witnesses in their statements Ex.PW-1/A, Ex.PW-2/A and Ex.PW-3/A, made before the SDM have clearly stated that the deceased was subjected to cruelty and harassment by Crl. Appeal No. 497 of 1999 Page 6 the appellant/accused and within a short period of the marriage of the deceased with the appellant/accused, demand of dowry of Rs.20,000/- was made by the appellant/accused and the same was fulfilled. It also transpired from the aforesaid statements that appellant/ accused had demanded dowry and the deceased was given beating by the appellant/accused. Thus, it cannot be said that the aforesaid statements of the brother, mother and sister of the deceased made before the SDM does not incriminate the appellant/accused at all.
12. Regarding the allegations of dowry demands and harassment on account of its non-fulfillment, being vague, the material prosecution witnesses have been cross- examined by the defence to establish the plea of vagueness. Such a course has not been adopted by the defence and so, no benefit accrues to the appellant/ accused on this account. In cases, like the present one, generally speaking, there can be no independent witnesses.
13. Although sister-in-law (Bhabhi), (DW-1) of appellant/ accused has stated in her evidence that the deceased was short tempered lady, but in the same breadth, she had stated that she had never seen appellant/accused quarrelling with the deceased over dowry demand.
Crl. Appeal No. 497 of 1999 Page 7 According to this witness, the deceased had committed suicide because she could not bear a child and there was no demand of dowry by the appellant/accused from the deceased or her family.
14. Aforesaid defence plea is clearly an afterthought as the same has not been suggested to the material prosecution witnesses. Furthermore, the plea of the appellant/accused as referred to above, does not sound to be plausible one and hence, the same has been rightly rejected by the trial court.
15. From the evidence of the brother (PW-1), mother (PW-2) and sister (PW-3) of the deceased, it clearly stands proved that the deceased was subjected to cruelty and harassment on account of insufficiency of dowry and dowry demand of color TV, fridge and other articles was raised by the appellant/accused from time to time. Thus, it stands abundantly proved from the evidence on record that the offence under section 498-A of the Indian Penal Code has been committed by the appellant/accused.
16. However, it is required to be seen as to whether the offence of dowry death or of abetment of suicide by wife of the appellant/accused stands committed by him or not.
17. In "Baldev Singh Vs. State of Punjab", AIR 2009 SC Crl. Appeal No. 497 of 1999 Page 8 913, Apex Court has succinctly reiterated the necessary ingredients of the dowry death in the following words:-
"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is Crl. Appeal No. 497 of 1999 Page 9 not defined."
18. The law was set into motion in this case, on the statement of brother (PW-1) of the deceased. To bring this within the sweep of section 304-B of Indian Penal Code, there has to be clear cut evidence that 'soon before' her death, the deceased was subjected to cruelty and harassment on account of insufficiency of dowry or for non-fulfillment of dowry demands. From this point of view, evidence of the relatives of the deceased has been scrutinized and it has transpired that brother (PW-1) of the deceased has remained contended by simply asserting in evidence that the deceased has committed suicide on account of demand of more dowry by the accused. To say the least, this solitary assertion would neither bring this case within the ambit of section 306 of Indian Penal Code nor within the scope of section 304-B of Indian Penal Code. However, mother (PW-2) of the deceased has categorically stated in her evidence that her daughter (since deceased) had come to her house eight days prior to this incident and had told her that appellant/accused was demanding color TV, etc., and he had beaten the deceased on this account. Here, learned counsel for the Appellant is right in contending that the aforesaid assertion of the mother (PW-
2) of deceased is a material improvement as she had not stated so in her statement (Ex. PW-2/A) before the SDM.
Crl. Appeal No. 497 of 1999 Page 10 Had it been so, then she would have definitely stated it in her statement before the SDM. Trial Judge has gravely erred in ignoring this vital aspect. In the similar circumstances, in a decision reported in AIR 2004 SC 1747, while discarding the improved version, accused was acquitted for the offence of dowry death.
19. Now I shall deal with the evidence of sister (PW-3) of the deceased. She has claimed in her evidence that about one or one and half months prior to this incident, appellant/accused had come to the parental house of the deceased and had told that he was beaten by the deceased and she had verified this fact from the neighbours of the appellant/accused, who had denied it. This witness (PW-3) in her evidence has expressed her suspicion about appellant/accused murdering his wife but she does not state in her evidence in so many words that she has seen or heard deceased being treated cruelly by the appellant/accused for non-fulfillment of dowry demand of color TV. The evidence of this witness (PW-3) does not incriminate appellant/accused for the offence of dowry death, nor for the offence under Section 306 of IPC.
20. In the ultimate analysis, this court is constrained to observe that the aforesaid evidence of the relatives of the deceased is clearly insufficient to bring this case within Crl. Appeal No. 497 of 1999 Page 11 the ambit of section 306 or section 304-B of Indian Penal Code. Therefore, statutory presumptions available under Section 113-A or under Section 113-B of Evidence Act cannot possibly be raised against the appellant/accused. Trial court has clearly ignored the hard reality that there is no tangible evidence on record to sufficiently prove that the appellant/accused had subjected the deceased to cruelty or harassment „soon before her death‟. Thus, the impugned judgment convicting the appellant/accused for the offence of dowry death cannot be sustained and deserves to be set aside. However, the conviction of the Appellant for the offence under section 498-A of Indian Penal Code is justified and is hereby maintained.
21. Even the alternate charge framed against the Appellant of his abetting the suicide committed by his wife remains unsubstantiated. Therefore, the appellant cannot be convicted for committing the offence under section 306 of the Indian Penal Code. It appears from the evidence on record that appellant/accused was a drunkard, a gambler and good for nothing. In all probability, the deceased had committed suicide out of sheer frustration. Be that as it may. There is nothing on record to show that the appellant/accused by his act or conduct, had willfully abetted the suicide of his wife.
Crl. Appeal No. 497 of 1999 Page 12
22. In the light of the aforesaid narration, neither the charge of dowry death nor of abetment of suicide stands established and the conviction of the appellant/accused for the offence of dowry death is not supported by the evidence on record and therefore, it is set aside. However, the conviction of the appellant/accused under section 498- A of Indian Penal Code finds support from the evidence on record and is hereby upheld.
23. The sentence imposed upon the appellant/accused for the offence under section 498-A of Indian Penal Code, is of rigorous imprisonment for two years with a fine of Rs.500/- only and in default of payment of fine, Appellant has to undergo rigorous imprisonment for one month. Nominal roll of the Appellant reflects that the Appellant has already undergone the substantive sentence for this offence. He is on bail. His bail bonds and surety bonds are discharged and he is set free in this case.
24. In the terms, as aforesaid, this appeal stands partly allowed.
Sunil Gaur, J.
May 18, 2009 rs/pkb Crl. Appeal No. 497 of 1999 Page 13