* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on: May 14, 2009
Judgment delivered on: May 27, 2009
+ Crl. Appeal No. 629 of 1999
% Sucha Singh & Others ... Appellants
Through: Mr. Gurbaksh Singh and
Ms.Meenakshi, Advocates
versus
The State ... Respondent
Through: Mr. Amit Sharma, Additional Public
Prosecutor for the 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, there were four appellants/ accused. Appellant
- Sucha Singh was the father-in-law of the deceased. During the pendency of this appeal, to secure the presence of the appellants/accused, bailable warrants were issued against them. When the bailable warrants of appellant-Sucha Singh were returned back unexecuted with the report that he has died, then vide order of 13th March 2009, his appeal stood abated. Copy of death certificate of appellant- Sucha Singh was also placed on record. The remaining three appellants/ accused are the mother-
Crl. A. No. 629/1999 Page 1 in-law of the deceased, uncle (Mausa) and aunt (Mausi) of the husband of the deceased.
2. This appeal is directed against impugned judgment of 17th November, 1999, vide which the appellants/accused were convicted for the offence of dowry death and vide order of 19th November, 1999, trial court had sentenced them to undergo rigorous imprisonment for a period of seven years each with fine of Rs.5,000/- each.
3. The gravamen of the charge against appellants/accused was that they had subjected Kanchan Kaur, daughter-in-law of Bhagwanti Kaur, to cruelty and harassment for the demand of dowry and within seven years of her marriage, Kanchan Kaur had committed suicide by drowning herself in river Yamuna, in the evening of 3rd March, 1996.
4. The deceased was married to son of appellant-Bhagwanti Kaur on 10th November, 1994. After this incident, husband of the deceased had also died. Initially, DD No. 33-B was recorded regarding the recovery of a dead body of a lady and the inquest proceedings were conducted and post-mortem on the dead body was got done. Thereafter, the photograph of the deceased was taken and her clothes were seized and on 11th April, 1996, Man Singh (PW-5), brother of the deceased, had identified from the photograph and clothes of the deceased that she was his sister Kanchan, who was married in the family of the accused. On the Crl. A. No. 629/1999 Page 2 statement of Man Singh (PW-5), FIR No. 356 of 1996 was registered at P.S. Mangole Puri, Delhi. Appellants/accused were arrested in this case and after completion of investigation, charge- sheet for the offence of dowry death was filed in the court concerned.
5. Trial commenced as appellants/accused contested the charge of dowry death held against them by the trial court. Out of the fourteen witnesses examined at trial, the main ones are brother (PW-5) and father of the deceased (PW-8). The SDM (PW-11) had conducted the inquest proceedings in this case and the post mortem on the dead body of the deceased was done by Dr.Alexender (PW-1). S.I. Prem Mittal (PW-14) is the Investigating Officer of this case.
6. Appellants/accused had denied the prosecution case at the stage of the recording of their statements by the trial court. They have claimed that the marriage of the deceased with their son was a love marriage and because the first wife of the husband of the deceased had started interfering in the matrimonial life of the deceased, therefore, Kanchan Kaur had committed suicide out of frustration. The two witnesses, who had deposed in favour of the appellants/accused, were Jasbir (DW-1) and Kunti Devi (DW-2). They claimed to be neighbours of appellant Bhagwati Kaur. All that they have stated is that the deceased along with her husband was residing at Mangol Puri and was not residing with the Crl. A. No. 629/1999 Page 3 appellants/accused. The main thrust of their deposition is that appellants Daya Singh and Attar Kaur were having ten children and out of them, six were sons and, therefore, there was no occasion for them to have adopted the husband of the deceased.
7. The trial ended with the conviction of the appellants/accused for the offence of dowry death, which is under challenge in this appeal.
8. Shri Gurbaksh Singh, learned counsel for the appellants as well as Mr. Amit Sharma, learned Additional Public Prosecutor for the respondent-State, have been heard in this appeal and with their able assistance, the evidence on record has been perused.
9. The three essential ingredients of the offence of dowry death are; firstly, the death of the woman concerned has to be unnatural one and secondly, it has to be within seven years of her marriage and thirdly, the harassment/cruelty meted out to such a woman, has to be "soon before her death".
10. Learned counsel for the appellants contends that the aforesaid third ingredient of the offence of dowry death is lacking in the instant case and, therefore, the impugned conviction of the appellants/accused is bad in law. It has been pointed out by learned counsel for the appellants/ accused that since the appellants were residing separately from the deceased and her husband, therefore, there was no occasion for them to have Crl. A. No. 629/1999 Page 4 demanded any dowry or to have harassed the deceased on account of insufficiency of dowry and that too, soon before her death. It has been contended on behalf of the appellants/accused that no specific instances have been highlighted to show that the deceased was ever treated cruelly by the appellants/accused. In the last, it is submitted that the Apex Court, in its decision reported in 1999 (1) JCC (SC) 59 had extended the benefit of doubt to the mother-in-law of the deceased, as she was found to be living separately and because, there was not any specific instance of her treating the deceased cruelly. Thus, it has been urged that the impugned judgment deserves to be set aside. Nothing else is urged on behalf of the appellants/accused.
11. Learned Additional Public Prosecutor for the State has vehemently argued this appeal and has submitted that from the evidence of the brother and father of the deceased, it does stand established that the deceased was subjected to cruelty for not meeting the dowry demands. It has been asserted that the harassment/cruelty meted out the deceased was a continuing offence and, therefore, the conviction and the sentence imposed upon the appellants is justified.
12. After having heard learned counsel for the parties and upon closer examination of the evidence on record, I find that although, prosecution has succeeded in proving that the deceased had died unnatural death within seven years of her marriage and that she Crl. A. No. 629/1999 Page 5 was subjected to cruelty by the appellants/accused, but the necessary ingredients of the deceased being subjected to cruelty, "soon before her death" is missing, which renders the conviction of the appellants/accused for the offence of dowry death illegal.
13. This court is not impressed with the submission of the learned counsel for the appellant that merely because, appellants were residing separately, they could not have possibly subjected the deceased to cruelty or harassment for insufficiency of dowry. It has not been clearly brought out in the evidence by the defence that the appellants/accused were living so far away that they could not have interacted with the deceased for treating her cruelly for bringing insufficient dowry. The defence evidence does not inspire the confidence of this court and is hardly plausible and in any case, it is not at all sufficient to override the otherwise reliable testimony of the father of the deceased, which is sufficient to sustain the conviction of the appellant for the offence under Section 498A/34 of IPC. In view of the aforesaid factual position, reliance placed by the appellants upon the decision reported in 1999 (1) JCC (SC) 59 is of no help to the case of the appellants/accused.
14. The allegations of cruelty and harassment of the deceased at the hands of the appellants/accused are clearly brought out by father of the deceased (PW-8), in his deposition. He has stated in so many words that the appellants/accused used to demand colour Crl. A. No. 629/1999 Page 6 TV, Fridge and Rs.50,000/- and out of the said demands, he could fulfill the demand of Rs.20,000/- only and the deceased used to be humiliated by appellants/accused for not meeting the aforesaid dowry demands. Although, the offence of dowry death does not stand proved from the evidence on record, but the appellants/accused, still can be convicted for the lesser offence, which they have committed i.e. for the offence under Section 498A/34 of IPC.
15. The facts and circumstances of this case justify the conviction of the appellants/accused for the offence under Section 498A/34 of the IPC. The evidence on record has also been scrutinized from the angle as to whether there can be any conviction of the appellants/accused for the offence under Section 306/34 of the IPC, but this court finds that the evidence on record falls short of the standard required for convicting the appellants/accused for the aforesaid offence.
16. Although, the conviction and the sentence imposed upon the appellants/accused for the offence of dowry death is being set aside, but they stand convicted for the lesser offence, i.e. for commission of the offence under Section 498A/34 of the IPC.
17. On the quantum of sentence, it is noticed that the appellants/accused are old and ailing persons and are in their seventies and they have initially remained behind bars in this case for a period ranging from one month to eight months. They have Crl. A. No. 629/1999 Page 7 faced the ordeal of trial since November, 1994. Ends of justice would be met, if the substantive sentence imposed upon them is reduced to the period already undergone by them. Such a course is being adopted, as an offence under Section 498A/34 of the IPC does not carry any minimum sentence. Resultantly, the substantive sentence imposed upon the three appellants/accused for the offence under Section 498A/34 of the IPC is the period already undergone by them, with a fine of Rs.5,000/- each. If not already deposited, appellants are granted two weeks time to deposit the fine, failing which, they shall have to undergo SI for three months each. Trial court be apprised of this order, to ensure its compliance.
18. In the terms as aforesaid, this appeal stands partly allowed.
Sunil Gaur, J.
May 27, 2009 rs/n Crl. A. No. 629/1999 Page 8