Ajay Kumar vs The State Of Nct Of Delhi
2009 Latest Caselaw 1393 Del

*                     HIGH COURT OF DELHI : NEW DELHI

            Judgment reserved on : April 01, 2009

            Judgment delivered on: April 15, 2009

+                        Crl. Appeal No. of 260 of 1999
Ajay Kumar             ...                  Appellant
         Through: Mr. K. B. Andley, Senior Counsel
                  with Mr. Harish kumar and Mr. M.
                  Shamikh, Advocates

                                         versus

The State of NCT 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. Challenge in the present appeal is to the

conviction of the appellant-husband for the offence of

„dowry death‟. Vide judgement and order on sentence

of 12th April, 1999 and 19th April, 1999, respectively,

appellant- Ajay Kumar has been convicted and

sentenced to RI for two years and fine of Rupees two

Crl.A. No. 260/1999 Page 1 thousand under Section 498-A of the IPC and in default

thereof, RI for six months and to a further sentence of

RI for ten years with fine of Rupees fifty thousand under

Section 304-B of the IPC, and in default thereof, to RI

for three years by the court of Sessions. Out of the fine,

if realised, sum of Rs.50,000/- has been given to heirs

of deceased by the trial court.

2. The case of the prosecution is that appellant-Ajay

Kumar was married to Anju on 11th November, 1997. He

subjected her to cruelty with a view to coerce her for

bringing money from her parents and harassed her and

that on 1st March, 1998, Anju committed suicide by

hanging herself in her parental house.

3. Prosecution version as unfolded by Inder Sain Jain

PW-1 is that a sum of Rupees one lac fifty thousand was

spent on the wedding of his daughter- Anju, who after

about eight days of her marriage with Ajay Kumar,

came to her parental house and complained of being

harassed and beaten by her husband (appellant) after

consuming liquor, on the pretext that the said marriage

was against his wishes and he wanted to marry some

other girl named- Kajal, whom he loved and was

Crl.A. No. 260/1999 Page 2 working in telephone exchange and also of being

threatened by him that either he would desert her or

would kill her. On the advice of mediator-Preety, Anju

went back to her matrimonial house where she was

again beaten by Ajay Kumar who demanded Rupees

one lac for running a lottery counter. Inder Sain Jain

(PW-1) gave a sum of Rupees fifty thousand to Ajay

Kumar to fulfil this demand. On 27th February, 1998,

Anju came back to her parental house at about 10:00

a.m. and complained of being beaten by her in-laws as

they wanted Ajay to marry some other girl. While her

mother-in-law had demanded a gold chain for herself

and a saree worth Rupees twelve hundred, whereas her

father-in-law had demanded a colour TV and fridge. She

also stated that she apprehended danger and threat to

her life while being in her matrimonial house, so she

had escaped from her matrimonial house on the pretext

of going for nature‟s call. It is further asserted that on

1st March, 1998, while being in her parental house, Anju

hanged herself and committed suicide on account of ill

treatment by her in-laws and her husband. Legal action

was taken on his statement (EX. PW1/A), which was

recorded by the SDM concerned.

Crl.A. No. 260/1999 Page 3

4. Yasbir Singh PW-7, Investigating Officer of this

case, on receipt of DD No. 11-A (EX PW6/A), reached at

the house of parents of the deceased, where the dead

body of Anju was hanging from a ceiling iron rod with a

saree. Inquest proceedings (EX PW7/A) were carried out

by the SDM and the dead body was sent for post

mortem. FIR No. 37 of 1998, under Section 498-A and

304-B r/w Section 34 of the IPC was registered at Police

Station Geeta Colony, Delhi and accused persons were

arrested in this case.

5. Trial began as appellant and his co-accused chose

to contest charges under Section 304-B/498-A/34 of

IPC, framed against them by trial court.

6. The prosecution, in order to prove its case, got

examined six witnesses at trial. Inder Sain Jain PW-1

and Suman PW-2 are the parents of the deceased, PW-4

Mam Chand, is the maternal uncle (mama) of the

deceased, Dr. Ashok Jaiswal PW-8 has proved the

Medical record (EX. PW8/A) and Sub-Inspector Yasbir

Singh PW-7 is the Investigating Officer of this case.

7. In his statement under Section 313 of the Cr.P.C.,

the appellant/accused- Ajay Kumar claimed to be

Crl.A. No. 260/1999 Page 4 innocent and claimed that no dowry or money was

demanded and alleged that his wife Anju was murdered

by her parents and he had been falsely implicated in

this case. Defence witness stated that accused persons

were innocent as there was no demand of dowry at the

time of the marriage in question and no one had

complained to him about any harassment of the

deceased on account of any dowry demand and he

claims to state so, as he had acted as a Mediator in

arranging the marriage in question.

8. The trial culminated in the conviction of the

appellant, not only for the offence of dowry death but

also for committing the offence of subjecting the

deceased to cruelty.

9. Learned Counsel for the parties have been heard

in this appeal and with their assistance, the evidence

on record has been analysed.

10. In this appeal, the impugned judgment is being

questioned by the learned Senior Counsel for the

appellant in respect of the nature of offence only and

rightly so, in view of the suicide note (EX. P-2). On

behalf of the appellant, it has been contended that at

Crl.A. No. 260/1999 Page 5 best, the offence made out would fall under Section

498-A of the Indian Penal Code only.

11. The fate of this case primarily rests upon the

Suicide Note (Ex. P-2) which is beyond any challenge as

it had been recovered from the person of Anju (since

deceased) who had died unnatural death in her

parental house. The Suicide Note (EX. P-2) reads as

under:-

" Main Anju apni Zindgi se bahut tang aa gai hoon. Mere pati ne, ek ladki ke liye mujhe chod diya hai. Meri zindgi barbad kar di hai. Isliye main aise zindgi nahin zee sakti hoon. Main apni khushi se aatamhatya kar rahi hoon".

12. Even the parents of the deceased have stated so

in their evidence and the trial court has commented

upon their evidence in the following words:-

"It seems to me that these facts were added by this witness on account of psychological hatred which he bore for accused persons, since he thought that the accused persons were accountable for tragic end of his daughter. Same had been the situation of the testimony of Smt. Suman Jain. She had also improved facts on the counts as referred above. Therefore, testimony of Sh. Inder Sain Jain and Smt. Suman Jain on the aforesaid counts are to be discarded."

13. To convict the appellant/accused for the offence of

dowry death, trial court has relied upon the evidence of

father (PW-1) of the deceased who has stated in his

evidence that the appellant/accused had demanded

Crl.A. No. 260/1999 Page 6 Rupees one lac from him on 4th or 5th February, 1998

and he had paid Rupees fifty thousand to him on 10th

February, 1998. This incident is of 1st March, 1998. The

scrutiny of the evidence of the father ( PW-1) reveals

that it is neither his case, nor of any other witness that

during the period intervening 10th February, 1998 and

1st March, 1998, the deceased was subjected to any

cruelty by appellant/accused for having not paid the

demanded amount i.e. Rupees fifty thousand. Had the

deceased nursed any grievance on account of alleged

demand of Rupees one lac by the appellant/accused,

then she would have definitely made a mention of it, in

her suicide note. No such grievance has been made in

the suicide note. Thus, it is crystal clear that the alleged

dowry demand was not the cause of the suicide of the

deceased. Trial court has fallen into grave error in

ignoring the contents of the suicide note (EX. P-2) and

by relying upon the evidence of the father of the

deceased to convict the appellant/accused for the

offence of dowry death. It is so said because it has

come in the evidence of father of the deceased that he

was running a merchandise shop in the village and he

had to borrow handsome amount for installing the

Crl.A. No. 260/1999 Page 7 lottery counter and he was not an income tax payee

since beginning. He has stated in his evidence that he

had borrowed the money from one Mukesh (PW-3). For

reasons best known, Mukesh (PW-3) appeared before

the trial court to depose, but he was given up as

unnecessary by the State.

14. After carefully examining the testimonies of the

material witnesses, i.e. of parents of the deceased and

the Suicide Note (EX. P-2), I am of the considered

opinion that in view of the demeanour of the parents of

the deceased as noted by the trial court, it would not be

safe to blindly rely upon what father of the deceased

had to say about the dowry demand to bring the

offence within the sweep of Section 304-B of the IPC.

Had there been any harassment of the deceased on

account of the dowry demands, certainly it would have

found mention in the Suicide Note (EX. P-2). Therefore,

without any hesitation, I extend the benefit of doubt to

the appellant/accused in respect of the offence of

dowry death. However, it remains to be seen as to what

offence has been committed by the appellant/ accused.

15. The contents of the Suicide Note (Ex. P-2) as

referred to above, makes it abundantly clear that the

Crl.A. No. 260/1999 Page 8 wife of the appellant/ accused was subjected to a

mental cruelty as the appellant/ accused had left her

for another girl and for the hapless wife, there was no

other option except to get frustrated by the aforesaid

conduct of the appellant accused and out of extreme

frustration, wife of the appellant/ accused committed

suicide. If not the appellant/accused, who else is to be

blamed for it.

16. In my considered view, there remains no doubt

that the appellant/accused by his aforesaid conduct, as

reflected in the Suicide Note (Ex. P-2), he has abetted

the commission of suicide by his wife. It is true that

appellant/accused has been charged for a graver

offence of dowry death but he can always be convicted

for a lesser offence under Section 306 of the IPC.

17. In the case of „Dalbir Singh vs. State of U.P.' 2004

(4) Scale 238, Apex Court has declared that in a given

case it is possible to convict the accused for the offence

under Section 306 of the IPC, if a charge for the said

offence has not been framed against him and the

relevant observations made are as under:-

"Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict the accused for an offence for which no

Crl.A. No. 260/1999 Page 9 charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convictged and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu (supra) was not correctly decided as it purports to lay down as a principle of law that where the accused is charged under Section 302 IPC, he cannot be convicted for the offence under Section 306 IPC".

18. While relying upon the Suicide Note (Ex.P-2), the

conviction of the appellant/accused stands altered from

the offence under Section 304-B to one under Section

306 of the IPC and the conviction of the appellant/

accused for the offence under Section 498-A of the IPC,

is unimpeachable and is hereby maintained. The

offence under Section 306 of the IPC does not carry any

minimum sentence.

19. On the question of sentence, it needs to be

noticed that at the time of this incident

appellant/accused was in his early twenties and as per

the Nominal Roll of the appellant/accused, he has

remained in custody for a period of nine months. During

Crl.A. No. 260/1999 Page 10 the course of arguments, it was brought to the notice of

this court that the appellant/ accused has faced the

agony of trial and appeal proceedings in this case since

March, 1998 and in the last decade or so, he has

remained on bail and has remarried and is settled in life

and has not only a wife and minor child to support, but

also to support his old an ailing mother. Reliance has

been placed upon a decision reported in 2004 (3) CC

Cases (HC) 181 to contend that in a similar case, for

the offence under Section 306 of the IPC custodial

sentence of about five months was found to be

sufficient and the sentence was reduced to the period

already undergone by him. In the instant case also,

imposing a hard punishment would not serve any useful

purpose and would rather prove to be detrimental. In

the peculiar circumstances of this case and in view of

the nature of the offence committed by the appellant/

accused, the substantive sentence of nine months,

already undergone by the appellant, would serve the

ends of justice. Resultantly, the conviction of the

appellant/accused for the offence under Section 304- B

of the IPC is set aside and the appellant/ accused is

convicted for the offence under Section 306 of the IPC

Crl.A. No. 260/1999 Page 11 and is sentenced to the period already undergone by

him. However, the sentence of fine remains the same

i.e. appellant/accused has to pay a fine of Rupees fifty

thousand and in the event of his defaulting to pay this

fine, he shall have to undergo Simple Imprisonment for

one year. During the pendency of this appeal, the

sentence imposed upon the appellant was suspended

subject to his depositing fifty per cent of the fine

imposed. Appellant/accused is granted three weeks

time to pay the fine and if he defaults, then he will have

to undergo the sentence in default, as stipulated above.

The substantive sentence for the offence under Section

498-A of the IPC is reduced to the period already

undergone by the appellant but the sentence of fine is

maintained. Trial court be apprised of this order, to

ensure its compliance i.e. of disbursement of fine

amount of Rupees fifty thousand to the heirs of the

deceased.

20. This appeal is partly allowed to the extent as

indicated above.

Sunil Gaur, J.

April 15, 2009
rs/pkb




Crl.A. No. 260/1999                                    Page 12