Delhi High Court

Mukesh vs State on 20 April, 2009

Author: Mool Chand Garg

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Crl.App. 399/1997

%                              Date of reserve: 06.04.2009
                               Date of decision: 20.04.2009

MUKESH                                          ... APPELLANT
                          Through:   Mr. K.B. Andley, adv.

                                 Versus

STATE                                         ...RESPONDENT
                      Through: Mr. A.K. Gupta, APP for state


CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers   Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?      Yes

3.     Whether the judgment should be          Yes
       reported in the Digest?

MOOL CHAND GARG, J.

1. This criminal appeal has been preferred under Section 374

Cr.P.C. against the judgment and order on sentence convicting the

appellant passed by Ld. ASJ (Special Court NDPS Act dated 20.12.97 &

23.10.97 convicting the appellant under Section 498-A/304B IPC and

sentenced him to undergo R.I. for 1 year and to pay fine of Rs. 1000/-

however in default of payment of fine further to undergo R.I. for 6

months under Section 498A IPC and further to undergo R.I. for 7 years

under Section 304B IPC it is further added that both the sentences

shall run concurrently.

2. Briefly stating the facts of this case are that late Smt. Baby

(hereinafter referred to as the deceased) was married to appellant on

14.2.97 according to hindu rites. According to the prosecution it was

on 03.05.97, D.D.No. 7-B was handed over to S.I. Sanwar Mal who

along with constable Janak Raj reached at M-5, Mangolpuri, Delhi on

03.05.97 where they found the dead body of Smt. Baby W/o Shri

Mukesh appellant in the room on the ground floor. S.D.M. Saraswati

Vihar then ordered the preservation of dead body in mortuary. One

saree was lying near the dead body. Since it was an un-natural death

the SDM conducted inquest proceedings and also recorded statement

of the father of the deceased as well as her mother who deposed that

on the basis of the statement made by the parents of the deceased

SDM directed registration of an FIR under Section 498A/304B IPC which

was recorded vide FIR No. 432/07 at PS Mangolpuri against four

accused persons namely Hazari Lal, Kesar Devi, Sunil Kumar & Mukesh

Kumar. After completing the investigation case was sent for trial,

against all of these.

3. After the charges were framed, based upon the testimony of the

witnesses produced by the prosecution the appellant was convicted

both under Section 498A as well as under Section 304B IPC as stated

above while others were acquitted.

4. The short point which has been urged by the appellant assailing

his conviction & order of sentence in this case is that the third

ingredient to fasten the liability on the appellant under Section 304B

IPC was not made out as the evidence led by the prosecution does not

establish that the appellant treated the deceased with cruelty for the

purpose of harassing her for dowry demand soon before her death.

Even though there is no dispute that the death of the deceased has

taken place within 7 years of the marriage and is not a natural death

as it is a case of suicide.

5. Briefly stating the facts of this case are:

i. On 14.02.1997 marriage between the Mukesh and Baby

(deceased) was solemnized according to the Hindu Rites

and Customs.

ii. 03.05.1997 Baby was found dead. Upon receipt of the

information the FIR No. 432 of 1997 was registered under

Section 498-A/304-B/34 IPC. The matter was sent for trial

and four accused namely Hazari Lal, Kesar Devi, Sunil

Kumar and Mukesh Kumar.

iii. The Ld. Session Judge framed the charges under Section

498A/304B against the aforesaid four persons.

iv. That prosecution in support of the case produced PW-2

Mohan Lal, PW-5 Smt. Munni Devi & PW-6 Sarvesh their

statements were recorded apart from the statements of

formal witnesses.

v. The Ld. Session Judge vide judgment and order dated

20.10.1997 convicted Mukesh Kumar for commission of an

offence under Section 498A/304B IPC. However, the Ld.

Session Judge acquitted the other three co-accused

persons namely Hazari Lal, Kesar Devi and Sunil Kumar.

The Ld. Session Court vide order of sentence dated

23.10.1997 awarded the sentence i.e. rigorous

imprisonment of seven years for commission of an offence,

under Section 304B and rigorous imprisonment of one year

and fine of Rs. 1,000/- and in default to under go rigorous

imprisonment of six months for an offence under Section

498A IPC.

6. It is a matter of record that the FIR of this case has been

registered on the basis of statement made by PW-2 Shri Mohan Lal who

the father of the deceased made before the SDM on 03.05.97 itself to

the following effect:

"On 14.02.1997, I had married my daughter Baby with Mukesh according to customs. I gave dowry as per my capacity. My daughter used to visit my house. She used to tell me that Mukesh is demanding a Motor Cycle or she will be done to death. On 08.05.1997 tow persons came to my house one was Mausa of Mukesh and another person whom I donot know and told that my daughter is serious and we should go. I along with my wife went to the house of Mukesh. We saw my daughter lying dead. We came to know that she has been murdered by Mukesh, his father, mother and brother who all present court. Mukesh had run away. The accused persons are still threatening us. I lodged the report with the police. The same EX.PW2/A which is signed by me at point „A‟. I paid Mukesh Rs.20,000/-. Again demanded Rs.20,000/- with Motor Cycle. I cannot admit or deny if incident took place on 03.05.1997 or not.

7. PW2, PW5 and PW6 i.e. the father, mother and brother of the

deceased in their deposition have supported the version of the

prosecution about harassing the deceased right from the day of her

marriage till she expired for the demand of dowry.

8. It has come in the evidence of PW2 that after the marriage a

demand of Rs. 20,000/- and motor-cycle was made by Mukesh Kumar

the appellant to the parents of the deceased. PW6 Servesh Kumar in a

statement has stated that 10 days prior to the incident when the

deceased had committed suicide he was informed by her sister on

telephone that Mukesh Kumar had asked for motor-cycle and even

threatened to kill her.

9. Some of the portion of the cross-examination of PW2 and PW6

which the appellant tried to place reliance in support of his case that

the evidence of the prosecution is not trustworthy. It is stated that in

his cross-examination PW2 Mohan Lal has stated as under:

"I do not remember the date month or day when my daughter told about the demand of motorcycle by Mukesh. After married when my daughter came for the first time she told that Mukesh is making demand of motorcycle and harassing her." (emphasis supplied)

10. Similarly, PW6 has deposed:

"On 12.4.1997 my sister was married to Mukesh accused present in Court. At the time of marriage one bed, one table, chain, one gold ring, one gold chain, one trunk, one cycle were given. Before marriage Rs. 20,000/- was paid in cash to Hazari Lal. After marriage she came to our house after 5-6 days of marriage. Again she came near Holi for the second time. When she came for the first time my sister told that Mukesh is demanding a motorcycle. We assured her that it will be given. My sister died on 3.4.19997 before her death a telephone was received 10 days prior to from my sister that Mukesh is asking for a motorcycle or they threatened to kill her. (Emphasis)

11. The Learned Sessions Judge has dealt with the evidence which

has come on record in his judgment. Relevant portion of the judgment

is reproduced for the sake of reference:

11. It has been submitted by Ld. defence counsel that PW2 in his cross examination has made an improvement when he stated in his cross-examination that his daughter told him when she came for the first time that Mukesh has raised a demand of motor cycle and harassing her. When the witness was confronted with his statement it was not so recorded. He further stated that this witness has further admitted that he spent total amount of Rs. 20,000/- in the marriage. He has further submitted that this witness in his cross examination has further stated that he has stated that his daughter has been killed by the accused persons as they told him and

approached him for compromise. Ld. defence counsel then referred to the cross examination of the PW5 and stated that this witness in his cross examination has admitted that before marriage no demand of motor cycle was raised and this demand was raised only after marriage. She further stated that this fact was disclosed to her when her daughter came on the occasion of Holi and later on telephone. Ld. defence counsel then referred to the cross examination of PW6 wherein this witness is alleged to have stated before S.D.M. that an amount of Rs. 20,000/- was paid in cash at the time of sagai. This statement is an improvement. Laying stress on this Ld. defence counsel has submitted that there is inconsistency in the statement of the witnesses and there are some discrepancies in the statement of the witnesses for which benefit should go to the accused.

12. Ld. defence counsel further submitted that statement of Sarvesh has been recorded by S.D.M. on 6.5.97 and of Munni Devi on 8.5.97 and that too in the presence of I.O. The incident is alleged to have taken place on 3.5.97 and the delay in recording the statement before S.D.M. had not been explained.

13. Another submission which has been made by Ld. Counsel for the accused persons is that as per the post- mortem report the death took place due to hanging and it is a case of suicide. No demand of dowry was made nor the deceased was harassed for the same and as such the prosecution has not been able to prove its case beyond any shadow of reasonable doubt.

14. On the other hand it has been submitted by Ld. APP that the discrepancies pointed out by Ld. Defence counsel are not material because such discrepancies are bound to occur with lapse of time. With regard to the late recording of SDM Ld. APP has submitted that the witnesses may not be in good frame of mind to make statement as Baby was dead. For this also the accused persons cannot be given any benefit. He has submitted that all the witnesses examined by the prosecution have specifically stated that a demand of motor cycle was raised by Mukesh and for which she was harassed.

15. In order to prove the guilt of the accused persons under Section 498A the prosecution has to prove that a woman was subjected to cruelty of harassment by the husband or relative of a husband. There is the testimony of PW2, PW5 and PW6 on the file which clearly point out that Mukesh husband of deceased Baby raised a demand of motor cycle and that she was harassed. There are these specific allegations against accused Mukesh of cruelty and harassment and nothing has been said by these witnesses with regard to the other three accused persons.

16. From the above discussion, I hold that prosecution has been successful in proving a case under Section 498A against the husband of deceased Baby and has not been able to prove its case against the other three accused persons.

12. From the aforesaid, it is apparent that even the third ingredient

was found to be available by the Trial Court at least against the

appellant.

13. At this juncture it may also be relevant to take note of the

judgment of Apex Court in the case of Yashoda V. State of M.P. (2004)

3 SCC 98 at page 101 on this point where the issue as to what is the

meaning of "soon before death" has been discussed

8. The evidence of these witnesses also proves that about 15 days before the occurrence, Kalicharan, the husband of the deceased, had himself come to fetch the deceased. On that occasion also he had reiterated his demand for the gold ornaments and to him also an assurance was given by the father of the deceased, Shankarlal (PW 5), that he would arrange for the said articles within a month. On the basis of the evidence of PWs 3, 4, 5 and 7 we are satisfied that the prosecution has successfully proved its case that there was a persistent demand for gold ornaments ever since the marriage of the deceased with Kalicharan, which demand was reiterated on many occasions and the demand last made was just 15 days before the occurrence.

16. The words "soon before" found in Section 304-B IPC have come up for consideration before this Court in a large number of cases. This Court has consistently held that it is neither possible nor desirable to lay down any straitjacket formula to determine what would constitute "soon before" in the context of Section 304-B IPC. It all depends on the facts and circumstances of the case. Learned counsel for the appellant relied upon a decision of this Court rendered by two learned Judges reported in Sham Lal v. State of Haryana, (1997) 9 SCC 759 and submitted that as in that case, so in the present case, there was no evidence to suggest that after the deceased went to her matrimonial home, she had been subjected to cruelty and harassment before her death. The facts of Sham Lal case (supra) are clearly distinguishable and they have been so distinguished in the case of Kans Raj v. State of Punjab, (2000) 5 SCC 207 by a Bench of three learned Judges of this Court. This Court observed:

"15. It is further contended on behalf of the respondents that the statements of the deceased referred to the instances could not be termed to be cruelty or harassment by the husband soon before her death. „Soon before‟ is a relative term

which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. This expression is pregnant with the idea of proximity test. The term „soon before‟ is not synonymous with the term „immediately before‟ and is opposite of the expression „soon after‟ as used and understood in Section 114, Illustration (a) of the Evidence Act. These words would imply that the interval should not be too long between the time of making the statement and the death. It contemplates the reasonable time which, as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In relation to dowry deaths, the circumstances showing the existence of cruelty or harassment to the deceased are not restricted to a particular instance but normally refer to a course of conduct. Such conduct may be spread over a period of time. If the cruelty or harassment or demand for dowry is shown to have persisted, it shall be deemed to be 'soon before death' if any other intervening circumstance showing the non-existence of such treatment is not brought on record, before such alleged treatment and the date of death. It does not, however, mean that such time can be stretched to any period. Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough."

18. In the instant case as well there is nothing to show that the demand had been given up or had been satisfied by the parents of the deceased. On the contrary there is evidence to prove that even 15 days before the occurrence such a demand was reiterated and while leaving for her matrimonial home the deceased had wept and told her uncle that if the demand was not met, they will not let her live. The facts of this case are similar to the facts in the case of Kans Raj (supra). In our view the same principle must apply. There is clear evidence on record that the demand for gold ornaments persisted and so did harassment and cruelty meted out to the

deceased. Every time she came to her parents she wept and narrated her miserable plight. The last demand was made only fifteen days before her death. In these circumstances it cannot be said that there is no evidence on record to support the finding that soon before her death she was subjected to cruelty and harassment by the appellants and her husband in connection with demand of dowry.

14. Apex Court in the case of Arun Garg Vs. State Punjab (2004) 8

SCC 251 has also discussed the meaning of "soon before death" has

been discussed.

17. The ingredients necessary for the application of Section 304-B IPC are:

(i) that the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances;

(ii) within seven years of her marriage;

(iii) it must be shown that before the death she was subject to cruelty or harassment by her husband or any relative of the husband for or in connection with the demand of dowry.

21. The courts below have carefully gone through the facts of the case and the evidence on record and have found that the appellant is liable for the offence under Section 304-B IPC. The courts below, after appreciation of the facts and evidence recorded have reached the conclusion that Seema Garg died an unnatural death at the house of her in-laws within a period of seven years of her marriage with the appellant due to intake of poisonous substanc

26. There is no substance in the argument of the learned counsel appearing for the appellant that the interested evidence of the parents of the deceased has not been supported by independent evidence or witness of the locality while the stand of the defence has been that the deceased Seema was never harassed or tortured by the appellant or by any of his family members for demand of dowry. Likewise, there is no substance in the submission of the learned counsel appearing for the appellant that there is no demand of dowry by the appellant or by any of his family members soon before the death of Seema. The evidence discussed, as in paragraphs supra, would clearly go to show that this submission has no force.

27. Section 304-B was inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to combating the

increasing menace of dowry death. By the same Amendment Act, Section 113-B has been added in the Evidence Act, 1872 for raising a presumption. It reads thus:

"113-B. Presumption as to dowry death.--When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.

Explanation.--For the purpose of this section, „dowry death‟ shall have the same meaning as in Section 304-B of the Indian Penal Code."

28. Once the three essentials under Section 304-B as referred to in paragraph 17 are satisfied, the presumption under Section 113-B would follow. This rule of evidence is added in the statute by amendment to obviate the difficulty of the prosecution to prove as to who caused the death of the victim. Of course, this is a rebuttable presumption and the accused by satisfactory evidence can rebut the presumption. In the instant case, the appellant could not rebut the presumption, and the prosecution, even without the aid of this presumption under Section 113-B proved that the appellant was responsible for the death of the deceased Seema. Hence, the conviction of the appellant for the offence under Section 304-B IPC is only to be confirmed.

29. Our attention was also drawn to Section 498-A. In our view, Sections 304-B and 498-A are not mutually exclusive. They deal with different and distinct offences. In both the sections, "cruelty" is a common element. Under Section 498-A, however, cruelty by itself amounts to an offence and is punishable. Under Section 304-B, it is the dowry death that is punishable and such death must have occurred within seven years of the marriage. No such period is mentioned in Section 498-A. Moreover, a person charged and acquitted under Section 304-B can be convicted under Section 498-A without a specific charge being there, if such a case is made out.

15. In view of the aforesaid taking into consideration the statements

made by PW2, PW5 and PW6 it is clearly established that the deceased

was harassed for the demand of dowry and the death has occurred

within three months of the marriage which is "soon before the death"

in the light of the aforesaid judgments. Her death being an unnatural

death which occurred within 7 years of her marriage and in fact within

3 months of the marriage makes out a case under Section 304B

against the appellant. Thus, I do not find any infirmity in so far as the

judgment of conviction passed by the Addl. Sessions Judge in this case.

As far as sentence awarded to the appellant is concerned, taking into

consideration the sentence awarded to the appellant I do not find that

the sentence was excessive or requires any interference by this Court.