Sudhir Aggarwal And Anr. vs State Of Nct Of Delhi [Along With ...
2005 Latest Caselaw 909 Del

JUDGMENT

Anil Kumar, J.

1. This common order will dispose of the three applications Nos. 1544, 1547 and 1624 of 2004 filed by appellants Sh. Sudhir Aggarwal, Sh. Sunil Jain, Sh. Madan Mohan Aggarwal and Alok Aggarwal in their appeals for suspension of sentence during the pendency of their appeals. All the applicants (appellants) are related to each other and have been convicted and sentenced vide judgment dated 27th September, 2004 for offences under Section 498A/304-B IPC read with Section 34 of IPC to life imprisonment and a fie of Rs. 5,000/- and in case of default to a further rigorous imprisonment for six months.

2. It all started with the suicide committed by 23 year old commerce graduate Anjali at the residence of her father just one day after the marriage with applicant Alok Aggarwal on 5th November, 1995. An FIR No. 256/1995 was lodged by the bride's father on 6.11.1995 leading to prosecution of applicants under Section 498A/304B read with Section 34 IPC. In this it was inter-alia alleged that though agreed dowry of certain articles/items/cash was given on Vidai, the bride's in laws, Nand (husband's sister) and Behnoi (Sunil Kumar) Along with Jeth (Sudhir Kumar) insisted and pressurized for purchase of a new car from open market. The bride's father-in-law M.M. Aggarwal Along with Nanad, Nandoi, Jeth and Jethani said that the commitment was not fulfillled and so on. In this FIR, it was lastly stated by the complainant father:-

"I am very much sure that my daughter has been harassed for dowry by her in laws and the above said persons which compelled Anjali to commit suicide."

3. All applicants who are closely related to each other were booked, arrested and prosecuted and finally sentenced to life imprisonment. They were, however, released on bail during trial and there is nothing to show that they jumped the bail or misused it in anyway.

4. The bail applications were hotly contested by the rival counsel. The complainant's counsel, Mr. Sandeep Sethi was also heard.

5. Learned senior counsel Sh. K.K. Sud, Advocate appearing for the applicants strenuously contended that the case does not disclose such exceptional circumstances as to attract rejection of applicants' plea for suspension of sentence. According to him normal rule was that when a convict's appeal was pending his sentence required to be suspended unless any exceptional reason or circumstance merited its rejection. He emphasized that the prayer for suspension of sentence should be construed liberally unless there is any statutory restriction and relied on 1999 SCC (Cri) 553, Bhagwan Rama Shinde Gosai and ors v. State of Gujarat and 2002 SCC (Cri) 1017 Kiran Kumar v. State of M.P. He also pointed out that as applicants appeals were not likely to be heard in the near future, their bail plea deserved to be considered on its merits. He also urged that since applicants were on bail during trial and had complied with the requisite conditions, it would be unjust to decline them bail during pendency of appeal because if their appeals were allowed, there would be no way to compensate them for their continued imprisonment.

6. On merits, it was submitted by Mr. Sood that the prosecution evidence had failed to establish the offence under Section 304B which provides for a minimum sentence of seven years and which extends to life imprisonment but only in rarest cases. He submitted that presumption under Section 304-B would come into play only when the prosecution establishes the ingredients of the offence under Section 304B IPC which amongst other things required that there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. In the present case there was not an iota of evidence available on this or on any harassment or cruelty caused to the deceased. The allegations in the FIR were omnibus, vague, generalized, orchestrated, joint and common and not accused specific. Even the name of the husband Alok Aggarwal was not mentioned in the FIR. There was no evidence to show who out of the accused resorted to any taunting, harassment or cruelty. The note Ex.PW4/A, on which the whole conviction is based is nothing but an agreed list of articles/items which is customarily exchangeable on ordinary Hindu Marriages. The conviction of the applicants-accused were not, therefore, based on any worthwhile evidence whatever. He read out from the impugned judgment to show that there was no finding on record with regard to any harassment or cruelty caused by any of the accused leading to the suicide committed by the bride.

7. Learned Government counsel, Mr. Chadha opposed the grant of bail to the accused. He submitted that prosecution had established the demand of dowry and its acceptance by the accused which was followed by the death of the bride. He, however, could not show any link or proximity between the alleged cruelty/harassment meted out to the bride that drove her to commit suicide.

8. On the other hand, learned counsel for the complainant, Mr. Sethi contended that once appellants were convicted, the presumption of their innocence vanishes disentitling them from grant of suspension of sentence. He relied on 2002 (9) SCC 364, Vijay Kumar v. Narender Kumar and Ors.; 2002 (9) SCC 366, Ramji Prasad v. Ratan Kumar Jaiswal and 2004 (6) SCC 175, State of Haryana v. Hashmath to argue that while considering a plea for suspension of sentence the Court must take into account, the nature of accusations against the accused, the manner of commission of crime, the gravity of the offence and the desirability of release of the accused after conviction. In the present case, the nature of accusation against applicants was very serious and so was the gravity of the offence committed by them. They had also suffered conviction which had taken away the presumption of their innocence and therefore any grant of suspension of sentence would render their conviction hallow.

9. Mr. Sethi also referred to prosecution evidence and claimed that it had established the offences against the accused beyond any shadow of doubt. He submitted that demand of dowry by applicants was proved by the note Ex.PW-4/DA. This document is admitted by applicants and has not been disputed at any stage. Their only explanation in this was that it was executed to avoid duplication. He pointed out that the demand of dowry after the marriage was also proved by the two prosecution witnesses which was followed by the death of the bride in unnatural circumstances. All this satisfied the ingredients of Section 304-B IPC and there was no reason to suspend applicants sentence.

10. It becomes highly difficult to deal with the merit of the rival contentions and to embark on any final determination on the contentions raised because any such determination even though tentative was bound to influence the decision in the applicants appeals. Suffice it to say that we have carefully considered the rival contentions and also the record before us. All things considered, therefore, we feel inclined to suspend the sentence of applicants Sh. Sudhir Aggarwal, Sh. Sunil Jain, Sh. Madan Mohan Aggrwal and Sh. Alok Aggarwal temporarily till further orders from this Court. They are ordered to be released on bail subject to the following conditions:-

"1. They shall furnish an undertaking not to leave the territorial limits of this Court without the permission of the Court and shall remain present before the Court as and when directed.

2. All the applicants shall furnish a personal bond of Rs. 50,000/- with one surety each in the like amount to the satisfaction of Trial Court.

3. It shall be open to the State or complainant to seek cancellation of the applicants bail in case of their abusing its grant in any manner."

Applications are disposed of with this.