Nirmal & Two Others vs State
2009 Latest Caselaw 633 Del

*                 HIGH COURT OF DELHI : NEW DELHI

         Judgment reserved on : February 09, 2009
         Judgment delivered on : February 25, 2009

+                 (1)   Crl. A. No. 399/1999

%     Nirmal & two Others                   ...       Appellants
                 Through: Mr. Sidharth Luthra, Sr. Advocate
                          with Mr. Kuldeep Kumar, Ms. Arunhati
                          Katju and Mr. Aditya Singla, Counsel
                          for the Petitioner

                                  versus

      State                              ...        Respondent
                  Through:    Mr. Amit Sharma, Additional Public
                              Prosecutor for State.

+                 (2)   Crl. A. No. 414/1999

%     Harkesh                             ...       Apppellant
                  Through:    Mr. Sidharth Luthra, Sr. Advocate
                              with Mr. Kuldeep Kumar, Ms. Arunhati
                              Katju and Mr. Aditya Singla, Counsel
                              for the Petitioner

                                  versus

      State                              ...        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. The above titled two appeals arise out of common

impugned judgment/order of 5th August, 1999, whereby these Crl. A. No. 399/1999 & 414/1999 Page 1 four Appellants have been convicted for the offence punishable

under Section 304-B of Indian Penal Code and trial court has

sentenced them to undergo rigorous imprisonment for seven

years each and for the offence punishable under Section 498-A of

Indian Penal Code they have been ordered to undergo rigorous

imprisonment for a period of two years and shall also pay fine of

Rs.1,000/- each and in default of payment of fine, they were

ordered to undergo rigorous imprisonment for a further period of

one month each. Both these sentences have been ordered to run

concurrently.

2. Since both these appeals arise out of common impugned

judgment and order, therefore they have been heard together

and are being disposed of together by this common judgment.

3. Appellant - Harkesh @ Raju (husband), Appellant - Nirmal

(mother-in-law) and Appellants - Manoj and Gulshan Kumar

(brother in laws) of the deceased Rajni have been convicted and

sentenced by the trial court for subjecting Rajni (deceased) to

cruelty and of causing her „dowry death‟. Appellant - Harkesh @

Raju was married with Rajni about one year and four months prior

to the date of incident and Rajni had died unnatural death on 22 nd

February 1992, at her matrimonial house.

4. The relevant facts of this case emerging from the record of

this case is as follows:-

Crl. A. No. 399/1999 & 414/1999 Page 2 The information of Rajni‟s suicide was communicated to Police Station Paschim Vihar on 22.2.92 at 8.15 p.m. vide DD No.14-A (Ex.PW-5/A). The DD was assigned to SI Chander Bhan (PW-10). He reached the spot and sent rukka Ex. PW-10/A at 10 pm for registration of the case. A suicide note, Ex.PW-11/B-1, was found near the dead body of Rajni, indicating that the saas and devars of Rajni had turned her out of their house but they harassed her from time to time. Her husband also used to beat her and being fed up for those reasons, she had taken the step for committing suicide. Sumitra Devi, mother of the deceased handed over to the police an exercise book containing the handwriting of the deceased Ex. PW- 4/A, which alongwith suicide note was sent to CFSL for comparison. Sh. N. Ravi (PW-11) compared the same and expressed his opinion vide his report Ex. PW-11/A, that the questioned Hindi writings/signatures mark Q1 & Q2 had been written by the writer of the standard Hindi writing/signatures marked S1 and S8. However original standard writing as well as suicide note had been lost by the police, for which registration of the case against HC Devender Singh under Section 409 of Indian Penal Code was recommended to DCP. Mr. N. Ravi (PW-11) stated that he had forwarded original report to SHO, Police Station Paschim Vihar, New Delhi on 29.5.92. Originals were handed over to Constable Harinder Prasad. He also stated that he had prepared the photographs from the negatives of the questioned and standard writings and the developed prints are Ex.PW-11/8-1 to Ex.PW-11/8-9 and the negatives are Ex.PW-11/C-1 to Ex.PW-11/C-17. Dr. Rajesh Gupta (PW-6) had conducted the post mortem of Rajni on

Crl. A. No. 399/1999 & 414/1999 Page 3 23.2.1992 and opined vide his report, Ex.PW-6/A, that the ligature pressure abrasion was ante mortem caused by soft ligature and the cause of death was hanging. Charge sheet under Section 173 Cr.P.C. for the offence under Section 304-B/498-A of the Indian Penal Code was submitted in court on 21.5.1992, against the accused persons.

5. These Appellants/accused were put to trial for the aforesaid

offences as they pleaded not guilty to the charges framed against

them by the trial court.

6. At trial, the prosecution had got examined eleven witnesses

to prove its case. Material amongst them are Sumitra Devi (PW-

1), Lalita Sharma (PW-4), Inspector Vinod Kumar Pandey (PW-5)

registered the FIR. Dr. Rajesh Gupta (PW-6) conducted Post

mortem. HC Prem Singh (PW-7) produced wireless log book

containing the entry Ex. PW-7/A and deposed that a suicide note

had been found in the pocket of the woman. SI Chander Bhan

(PW-10) is the Investigating Officer of this case and Sh. N. Ravi

(PW-11) is the Handwriting Expert.

7. Before the trial court, the Appellants denied that they ever

harassed Rajni in any manner or having made any demand of

dowry. Appellant/accused - Nirmal, Manoj and Gulshan Kumar

stated that they were living separately at Lawrence Road.

Appellant - Harkesh @ Raju admitted that he had borrowed

Rs.40,000/- from his mother in law and he used to pay Rs.1,500/-

per month in her bank account.

Crl. A. No. 399/1999 & 414/1999 Page 4

8. The appellants/accused got examined Smt. Gulshan as DW-

1 in their defence who stated that there was no quarrel between

Rajni and her husband or in-laws.

9. After the trial, Appellants/accused stood convicted for

committing the offences punishable under Section 304-B/498-

A/34 of the IPC and were sentenced as indicated above.

10. In this appeal, learned Counsel for the parties have been

heard and with their assistance, the evidence on record has been

perused.

11. The prime evidence in this case is the 'Suicide Note‟, which

was seized from the spot vide memo Ex.PW-2/A, which reads as

under:-

"I Rajni am hanging myself because my Saas and Dewars had turned me out of their house. But they used to come and harass me from time to time. My husband also used to beat me. Being fed up for that reason I am taking this step today. Sd/- Hindi Rajni."

12. There is evidence of Investigating Officer (PW-10) regarding

seizure of the aforesaid „Suicide Note‟ which was lying on the

bed, at the spot, and of obtaining standard hand writing of the

deceased and of handing them to CFSL for comparison and report

and the report Mark - 'B' was received by him and upon transfer

of the Investigating Officer (PW-10), he had handed over the

original „Suicide Note‟ and the CFSL report to Head Constable Crl. A. No. 399/1999 & 414/1999 Page 5 Devender, MHCR (R), and had obtained receipt from him. There is

statement of the concerned SHO on record that as per Head

Constable Devender, MHCR (R), he had passed these original

documents to the Niab Court but he could not furnish any proof of

it and therefore, steps were taken for registration of a case under

Section 409 of the Indian Penal Code against Head Constable

Devender, MHCR (R) in respect of the missing „Suicide Note‟ and

the CFSL report pertaining to it.

13. Learned senior counsel for the Appellants has vehemently

contended that in the absence of the original „Suicide Note‟, its

photocopy created is inadmissible in evidence and has relied

upon decisions reported in Subhash Harnarayanji Laddha v. State

of Maharashtra, (2007) 2 SCC (Cri) 122; Kartongen Kemi Och

Forvaltning AB v. State through CBI, 2004 (1) JCC 218 (Del);

Srichand P. Hinduja v. State through CBI, 121 (2005) DLT 1;

Ramesh Kumar v. State, 109 (2004) DLT 826; and State of

Orissa v. Attar Khan, 2007 Cri.LJ 3832, to support the above

contention.

14. In 'Megh Singh vs. State of Punjab‟ 2003 (3) JCC 1513, it

has been highlighted by the Apex Court that in criminal law, there

are no precedents and the apt observations made read as under:-

"Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between

Crl. A. No. 399/1999 & 414/1999 Page 6 two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based."

15. After having gone through the above referred citations, I

find myself in respectful agreement with the ratio laid down

therein, but I find that no two cases are identical and in criminal

law, there can be no precedents. The primary evidence regarding

the seizure of the „Suicide Note‟ from the spot is of the

Investigating Officer (PW-10) and it receives corroboration from

the evidence of Constable Vijender Pal Singh (PW-2). The

secondary evidence in this regard is of the FSL Expert (PW-11),

who has clearly stated in his evidence that the original „Suicide

Note‟ and the original FSL report were forwarded to the SHO

concerned vide letter of 29th May, 1992 and vide CFSL Diary

No.12506, they were handed over to Constable Harinder Prashad

on 10th December, 1992. This witness had brought with him

carbon copy of the FSL report opining that the standard

handwriting and the signatures tallied with the questioned

handwriting and signatures, meaning thereby, that the „Suicide

Note‟ was written by the deceased. This witness has placed on

record the photocopy of his report and the same was duly

admitted into evidence as Ex.PW-11/A. Trial court had been

Crl. A. No. 399/1999 & 414/1999 Page 7 vigilant enough to question the expert (PW-11) regarding the

negatives of the questioned and standard writings sent to him

and the Expert responded by stating that he had brought the

negatives of the aforesaid writings and the trial judge asked the

Expert to bring the developed prints of those negatives on the

next day and accordingly, the developed prints Ex.PW-11/B-1 to

Ex.PW-11/B-9 alongwith their negatives Ex.PW-11/-1 to Ex.PW-

11/C-17 were placed on record. This is how the secondary

evidence was led before the trial court.

16. The brief cross-examination of the Expert (PW-11) does not

reveal that if any suggestion was put to him that the developed

prints and the negatives are not of the original „Suicide Note‟ and

the standard writings or that Photostat copy of the report Ex.PW-

11/A was not the correct copy of the carbon copy of the said

report produced by this witness before the trial court. Similarly,

there is no cross-examination by the defence of the Investigating

Officer (PW-10) about the seizure of the original „Suicide Note‟

from the spot or about the obtaining of standard writings of the

deceased or about sending them to CFSL for comparison and

report and of depositing them with the MHCR (R) of the Police

Station. The statement of the SHO corroborates the aforesaid

unchallenged secondary evidence of the prosecution in respect of

the „Suicide Note‟ and the FSL report pertaining to it.

Crl. A. No. 399/1999 & 414/1999 Page 8

17. It is true that Head Constable Devender, MHCR (R), has not

been got examined by the prosecution and it is the prerogative of

the Investigating Officer as to examine which witness. Therefore,

it is the Investigating Officer, who has to explain as to why he did

not get examined any particular witness. Had the Investigating

Officer (PW-10) been questioned regarding non-examination of

the Head Constable Devinder, MHCR (R), then, perhaps he would

have given some plausible answer to it. Defence has not done it

and has to suffer for it. Thus, no adverse inference can be drawn

against the prosecution on account of examination of the Head

Constable Devinder, MHCR (R).

18. Upon close scrutiny of the evidence on record, I am of the

considered opinion that the contents of the „Suicide Note‟ stands

amply proved on record and from the FSL report on record it

stands established that the „Suicide Note‟ was written by the

deceased and that the trial court has rightly relied upon it.

19. On the merits of the „Suicide Note‟, it has been contended

on behalf of the Appellants that it does not mention about any

dowry demand and the ingredients of the offences under Section

304-B/498-A of the Indian Penal Code are not made out and the

statutory presumption available under Section 113-B of the

Evidence Act does not arise against the Appellants.

20. To appreciate the aforesaid contention, it has to be kept in

mind that the evidence against the Appellants does not comprise Crl. A. No. 399/1999 & 414/1999 Page 9 of „Suicide Note‟, Ex.PW-11/B-1, alone and there is also evidence

of Smt. Sumitra, (PW-1), mother of the deceased, regarding the

dowry demand and the harassment to the deceased at the hands

of the Appellants on account of non-fulfilling of the dowry

demands. There is also evidence of a neighbor Smt. Lalita, (PW-

4), regarding the widowed mother, (PW-1) of the deceased

complaining to her about the dowry death of her daughter, i.e.,

the deceased.

21. It is true that there is no specific reference of any dowry

demand in the 'Suicide Note' Ex.PW-11/B-1, but it has to be read

alongwith the evidence of the mother of the deceased. A bare

perusal of the evidence of the mother of the deceased reveals

that after she had paid Rs.40,000/-, which was demanded for the

start of the business by the husband of the deceased, the next

demand raised was for the flat, whose rent was the source of

livelihood of the widowed mother of the deceased. As per the

narration of the mother of the deceased, she refused to give her

flat and for that reason, the harassment of her daughter (since

deceased) ensued. It has also come in the evidence of this

witness that her daughter (since deceased) was not happy in her

matrimonial home and a day before this incident, her daughter

(since deceased) came to her parental house and was weeping

and she told her mother that she should be kept in her parental

house, otherwise her in-laws would kill her. However, the

Crl. A. No. 399/1999 & 414/1999 Page 10 deceased was still sent away by her mother alongwith the

husband of the deceased.

22. Although, Sumitra (PW-1), mother of the deceased, has

resiled regarding identification of the standard writings to be of

the deceased, but she had admitted her signatures on the memo

Ex.PW-4/A, vide which standard handwritings of the deceased

from the exercise book were taken into possession by the police.

Aforesaid seizure memo Ex.PW-4/A stands duly proved on record

by the Investigating Officer (PW-10) and he has stated in his

evidence that he had correctly recorded the statement of mother

of the deceased, which includes taking into possession the

standard handwritings of the deceased from the mother of the

deceased. There is no effective cross-examination of the

Investigating Officer (PW-10) on this aspect and therefore,

inability of the mother of the deceased who identified the

handwriting of the deceased on the standard hand writing after a

lapse of about seven years of this incident, is not fatal to the

prosecution case as by then, mother of the deceased was a

senior citizen and lapse of memory cannot be ruled out. However,

nothing material turns on it.

23. The hostility of the mother of the deceased to the

prosecution case regarding accused returning Rs.40,000/- to her

and of the accused persons not harassing the deceased or of not

demanding any dowry is the initial version given by her in her

Crl. A. No. 399/1999 & 414/1999 Page 11 evidence. However, in the cross-examination, by the Additional

Public Prosecutor, she admitted that she had disclosed to the

police that after she had paid Rs.40,000/- to accused persons,

they started demanded her flat and since her flat was the only

source of her income, as it was on rent, she had refused to give

her flat to the accused, who started harassing her daughter

(since deceased). It has also come in the evidence of the mother

of the deceased that although the deceased was not willing to go

back with her husband a day prior to this incident, but she was

told by her husband that Rs.40,000/- would be returned and the

deceased would be divorced. Though, mother of the deceased

has admitted her signatures on the documents, i.e.,

application/affidavit, Ex.PW-1/DA to Ex.PW-1/DD, but in her

evidence she had denied its contents by stating that she had not

got recorded therein that the deceased was hot tampered and on

that account she had committed suicide. She had clarified that

the aforesaid documents were prepared by the counsel.

24. The Apex Court in the case of „Khujji alias Surendra Tiwari

vs. State of Madhya Pradesh‟, (1991 Cri.LJ 2653) has held that

the part of the evidence of hostile witness can be acted upon.

This remains the settled position of law till date. Thus, the

evidence of hostile witness can be relied upon, even if, in part, it

supports the prosecution case. The reliable portion of the

evidence of the mother of the deceased is regarding the

meeting/fulfilling of the dowry demand of Rs.40,000/- made by Crl. A. No. 399/1999 & 414/1999 Page 12 the accused and of her harassment upon refusal of the mother of

the deceased to give her flat to the accused. This remains

unshaken in the cross-examination by the defence and it finds

support from the version given by her to the police on the day of

the incident itself. It provides background to the 'Suicide Note'

Ex.PW-11/B-1. The hostility of the mother of the deceased to the

prosecution case, as already noticed, lacks plausibility and the

aforesaid reliable portion of her evidence sounds probable and

stands fortified by the 'Suicide Note' Ex.PW-11/B-1, which is

unimpeachable.

25. Unfortunately, the marriage of the deceased with the

Appellant - Harkesh abruptly ended just after about an year and

four months only. The tenor of the „Suicide Note‟ coupled with

afore-noted evidence of the mother of the deceased, sufficiently

establishes beyond reasonable doubt that the deceased was

subjected to cruelty and harassment on account of not fulfilling

the dowry demand of a flat. Therefore, I have no hesitation in

upholding the conviction of all the four Appellants for the offence

under Section 498-A of Indian Penal Code. They may not have

been charged for the substantive offences with the aid of Section

34 of the Indian Penal Code, but this inadvertent lapse is of no

avail to the Appellants/accused because they were well aware of

the case set out against them in the charge sheet of this case

and during the trial also. Therefore, they cannot be heard to

complain about it now. In fact, this plea was never raised before Crl. A. No. 399/1999 & 414/1999 Page 13 the trial court. Anyhow, it is not shown as to what prejudice the

Appellants had suffered on this account.

26. The necessary ingredient of the offence of „dowry death‟ is

that there has to be a dowry related harassment or cruelty

inflicted upon the deceased „soon before her death‟ and if this

ingredient is lacking, then the offence committed will not come

within the ambit of section 304-B of Indian Penal Code. This

stands reiterated by the Apex Court in its recent verdict in the

case of „Tarsem Singh vs. state of Punjab, 2008 (16) SCALE

148, in the following words:-

"It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304B is to be invoked.

But it should have happened „soon before her death‟. The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it. But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasise the idea that her death should, in all probabilities, have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry-related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or Crl. A. No. 399/1999 & 414/1999 Page 14 cruelty and her death is wide the court would be in a position to gauge that in all probabilities the harassment or cruelty would not have been the immediate cause of her death. It is hence for the court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death".

27. It is required to be seen as to whether the conviction of the

Appellants for the offence of „dowry death‟ is justified or not, in

view of the evidence available on record. Though it has come in

the evidence of mother of the deceased that a day before this

incident, the deceased came to her weeping and had told her

that she should be kept by her otherwise her in-laws would kill

her and that Appellant - Harkesh, the husband of the deceased

had told that he would return Rs.40,000/- and the deceased

would be divorced.

28. Aforesaid is the startling revelation made by the mother of

the deceased, who is the solitary witness but the fate of this case

does not solely depend upon her evidence as there is a 'Suicide

Note' Ex.PW-11/B-1 on record, from which the veracity of the

evidence of the star witness can be tested. Had there been any

such incident of a day prior to this incident, the same would have

definitely found mention in the 'Suicide Note' Ex.PW-11/B-1. A

bare perusal of the 'Suicide Note' Ex.PW-11/B-1, reveals that

there is no mention of any incident of a day prior to this incident,

Crl. A. No. 399/1999 & 414/1999 Page 15 which apparently is an improvement made by the mother of the

deceased in her evidence and the same cannot be taken at its

face value and it deserves to be discarded. In my considered

view, the evidence on record does not bring this case within the

four corners of the offence of „dowry death‟ and therefore, the

conviction of the Appellants for the offence under Section 304-B

of Indian Penal Code cannot be sustained and is accordingly set

aside.

29. However, it is still required to be seen as to whether the

Appellants had any role in aiding or abetting the suicide

committed by the deceased of this case. Much emphasis has

been laid by learned senior counsel for the Appellants on the

aspect that once it is found that the accused cannot be convicted

for the offence under Section 304-B of Indian Penal Code, then his

conviction cannot be altered to an offence under Section 306 of

Indian Penal Code. This aspect stands already determined by the

Apex Court in the case of „Harjeet Singh vs. State of Punjab‟,

2006 (1) SCC 463, wherein the aforesaid contention has been

repelled in the following words:-

"It cannot, therefore, be said that in all cases, an accused may be held guilty of commission of an offence under Section 306 of the Penal Code wherever the prosecution fails to establish the charge against him under Section 304-B thereof.

Moreover, ordinarily such a plea should not be allowed to be raised for the first time before the Crl. A. No. 399/1999 & 414/1999 Page 16 court unless the materials on record are such which would establish the said charge against the accused."

30. It is crystal clear from the 'Suicide Note' Ex.PW-11/B-1 on

record that the deceased was not living with her mother-in-law

and the two brothers-in-law (who are the Appellants/accused

herein) but was living separately with her husband, i.e.,

Appellant/accused - Harkesh. The deceased in her 'Suicide Note'

Ex.PW-11/B-1 has stated that her in-laws used to come from time

to time and used to harass her. Taking it to be correct, the

conviction of the in-laws, i.e., three Appellants, who are mother-

in-law and two brothers-in-law of the deceased for the offence

under Section 498-A of IPC is maintained. However, to bring the

harassment of the deceased at the hands of her three in-laws

referred to above, it has to be satisfactorily proved on record as

to what was the nature and extent of the harassment meted out

to the deceased by them. There is no evidence on record to

substantiate it. Therefore, Appellants - Nirmal (mother-in-law),

Manoj and Gulshan Kumar (brothers-in-law) of the deceased

cannot be convicted for the offence under Section 306 of Indian

Penal Code.

31. It is seen that in our society, a wife can generally tolerate

the harassment and cruelty meted out to her by her in-laws to a

large extent and she would not certainly get fed up if her

husband beats her. It is evident from the „Suicide Note‟ Ex.PW-

Crl. A. No. 399/1999 & 414/1999 Page 17 11/B-1, that Appellant/accused - Harkesh, husband of the

deceased, used to beat her. But it is not clear from the Suicide

Note as to why he used to beat her. Unfortunately, the deceased

committed suicide but the frequency of the incidents of beating is

not reflected in the Suicide Note or in the evidence of solitary

witness PW-1. Thus, the magnitude of the offence cannot be

judged from the evidence available on record. In any case, it

cannot be said that the beating of the deceased by appellant-

Harkesh was of a severe nature, to compel her to commit suicide.

Though the aforesaid act of appellant-Harkesh of subjecting the

deceased to physical beating makes out an offence under Section

498-A of the Indian Penal Code but it falls short of the offence

under Section 306 of the Indian Penal Code. It cannot be said with

certainty that the conduct of appellant-Harkesh of beating his

wife was of such a nature which would drive any prudent person

to commit suicide. It appears that the deceased had over-reacted

in taking the extreme step of committing suicide due to the act of

the appellants/accused.

32. A three Judge Bench of the Apex Court in the case of

Ramesh Kumar v. State of Chhattisgarh 2001 (4) RCR Criminal

537 has held as under:-

"Sections 498-A and 306 of Indian Penal Code are independent and constitute different offences. Though depending upon the facts and circumstances of an individual case, subjecting a

Crl. A. No. 399/1999 & 414/1999 Page 18 woman to cruelty may amount to an offence under Section 498-A and may also, if course of the conduct amounting to cruelty is established, leaving no other option for the woman except to commit suicide, would amount to abetment to commit suicide. However, merely because an accused has been held liable to be punished under Section 498-A of the Indian Penal Code, it does not follow that on the same evidence he must also and necessarily be held guilty of having abetted the commission of suicide by the woman concerned."

33. In the above said case, conviction for the offence under

Section 498-A of the Indian Penal Code was maintained but for

the offence under Section 306 of the Indian Penal Code was set

aside.

34. In case of Satvir Singh and others v. State of Punjab and

another (2001) 8 SCC 633, the Apex Court has ruled that if the

deceased was subjected to cruelty 'soon before her death', the

special provision of Section 304-B of the IPC would be invocable,

otherwise resort can be made to Section 306 of the Indian Penal

Code. In this citation, it was found that the accused could not be

convicted for the offence under Section 304-B or under Section

306 of the Indian Penal Code. However, the conviction of the

accused for the offence under Section 498-A of the Indian Penal

Code was maintained while reducing the substantive sentence to

Crl. A. No. 399/1999 & 414/1999 Page 19 the period already undergone and the sentence of fine was

enhanced to Rupees one lac each.

35. In the case of Balwant Singh and others v. State of Himachal

Pradesh 2008 (4) JCC 2771, the plea of the accused of

conviction under Section 498-A of the Indian Penal Code being

illegal, in the absence of conviction for the offence under Section

306 or under Section 304-B of the Indian Penal Code was

negatived by holding that a person charged and acquitted for

the offence under Section 304-B of the Indian Penal Code can be

convicted under Section 498-A of the Indian Penal Code without

that charge being there, if such a case is made out.

36. In the face of evidence on record, I find that it is difficult to

bring the case of appellant-Harkesh within the ambit of Section

306 of the Indian Penal Code. However, his conviction for the

offence under Section 498-A of the Indian Penal Code is fully

justified and is hereby upheld.

37. Now, what should be the quantum of sentence? This

incident is of 22nd February, 1992. Appellant - Smt. Nirmal

(mother-in-law) has stated on affidavit before this court that she

is old and ailing lady of 61 years and is a widow and is suffering

from breast cancer and she claims leniency on the point of

sentence. Similarly, Appellants - Manoj and Gulshan Kumar

(brothers-in-law) also claimed on affidavits that now they are

middle aged persons and are sole bread earners of their families Crl. A. No. 399/1999 & 414/1999 Page 20 and are have minor children to support and even they pray for a

lenient view on the point of sentence. The conviction of these

three Appellants for the offence under Section 498-A of the Indian

Penal Code has been now upheld.

38. Appellant - Harkesh claims lenient view on the point of

sentence. In this case, he has remained behind bars just for

about six months or so. Leniency is prayed for on his behalf on

the ground that he has not remarried and already faced the

trial/appeal proceedings since the year 1992 and because he has

to look after his young daughter, who also happens to be the

daughter of the deceased, therefore, the substantive sentence

imposed upon him deserves to be reduced to the period already

undergone by him.

39. Trial court record reveals that Appellant-Nirmal (mother-in-

law) had remained in custody in this case for a week or so and

she was granted bail by the trial court, not on merits but because

a year old child of the deceased was to be looked after and

because none from the side of the family of the deceased came

forward to look after the infant child, so she was released on bail

and she continues to remain on bail. It is evident from the

affidavit of Appellant - Harkesh that even now the child of the

deceased is being brought up by the Appellants and the said child

is now the student of 12th class and has to take Board

examinations. Record of this case also reveals that Appellants -

Harkesh (husband), Manoj and Gulshan Kumar (brothers-in-law) Crl. A. No. 399/1999 & 414/1999 Page 21 of the deceased, have remained behind bars in this case for a

period of about five months and thereafter, they have remained

on bail.

40. For the offence under Section 498-A of Indian Penal Code,

no minimum sentence has been provided. It is a hard reality that

the young girl of the deceased requires to be looked after and it

is the duty of these four Appellants to do so. This is one aspect

which persuades this court to reduce the substantive sentence of

these four Appellants from two years to the period already

undergone by them. It is ordered accordingly. However, to

commensurate the reduction of the substantive sentence, the

sentence of fine is appropriately enhanced from Rs.1,000/- to

Rs.11,000/- in the case of appellant- Nirmal and the fine of

remaining three appellants is accordingly enhanced from

Rs.1,000/- each to Rs.31,000/- each and in default of payment of

enhanced fine, these four Appellants are ordered to undergo

simple imprisonment of six months each. Out of the aforesaid

fine, amount of Rs.1,00,000/-( Rupees one lac only) would go as

compensation to Aarushi Vij, daughter of the deceased. The

enhanced fine as indicated above be deposited by these four

Appellants with the trial court by way of four FDRs issued by

Nationalised/scheduled Bank i.e. FDR of Rs.10,000/- by appellant-

Nirmal and FDR of Rs.30,000/- each by the remaining three

appellants and these FDRs would be in the name of Aarushi Vij,

daughter of the deceased and initially, these FDRs would be for a Crl. A. No. 399/1999 & 414/1999 Page 22 period of three years, renewable till her marriage or till she

attains the age of 25 years and she would be at liberty to get

these FDRs encashed upon attaining the age of 25 years. These

four Appellants are granted three months time, from the date of

this order, to deposit the enhanced fine in the aforesaid terms.

41. Crl. A. No.399/1999 and Crl.A. No.414/1999 of these four

appellants, are partly allowed to the extent indicated above.

42. Copy of this order be sent to the trial court for compliance.

43. These two appeals, and pending application, if any, stands

accordingly disposed of.

Sunil Gaur, J.

February 25, 2009
Pkb/rs




Crl. A. No. 399/1999 & 414/1999                               Page 23