Shyam Sunder vs The State
2009 Latest Caselaw 8 Del

*             HIGH COURT OF DELHI : NEW DELHI


            Judgment reserved on : December 17, 2008
             Judgment delivered on : January 06, 2009

+                      Crl. A. No.293/1999
       Shyam Sunder              ...        Appellant
                            Through: Mr. Mukesh Kalia and Ms
                                      Sumita Kapil,Advocates

                                versus

       The 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. In this appeal, appellant is the husband of Rajni who had

died unnatural death by burning in her matrimonial house,

within about four years of her marriage and the appellant has

been convicted by the trial court for subjecting Rajni (since

deceased) to cruelty and of causing her dowry death. Trial

court vide impugned order of 30th April, 1999 had sentenced

the appellant to RI for seven years and to pay a fine of rupees

one thousand for the offence under Section 304-B of the Indian

Crl.A. No. 293/1999 Page 1 Penal Code and he has been sentenced to a period of two

years and to a fine of Rs.500/- for the offence under Section

498-A of the Indian Penal Code. However, aforesaid sentences

have been ordered by the trial court to run concurrently.

2. The facts of this case, in brief, are as follows :-

On 14.1.1994, Sub Inspector Kamal Singh received DD

No.9-A at police station Parshad Nagar, Delhi and he alongwith

Constable Banwari Lal went to 16/235, Bapa Nagar I-Block and

found one dead body in burnt condition at the roof of that

house. Sub Inspector Kamal Singh, Investigating Officer (IO)

informed the SDM and called Crime Team at the spot. SDM

came at the spot who inspected the dead body and conducted

the proceedings under Section 176 Cr.PC. The SDM had

ordered to preserve the dead body of the deceased Smt. Rajni.

The scene was photographed by the Crime Team. Investigating

Officer recovered one aluminium drum, one aluminium jug, one

yellow rope, one red colour sweater, one salwar of sky colour

with jumper in burnt condition, one match box, one burnt tyre

of vehicle and took them into possession after sealing with his

seal KS vide memos Ex.PW9/A to Ex.PW9/F. Burnt pieces of

quilt were also taken into possession. Dead body was sent for

preservation. On 15.1.1994, Investigating Officer went to the

office of SDM alongwith the mother of the deceased Smt

Sudesh and her brother Ravinder Kumar. SDM recorded their

Crl.A. No. 293/1999 Page 2 statements Ex.PW5/B and Ex.PW5/C. SDM directed the

Investigating Officer to register a case against appellant

Shyam Sunder, husband of the deceased. Investigating Officer

made endorsement vide Ex.PW13/A and got the case

registered in police station under Section 498-A/304-B of IPC.

On the same day, Investigating Officer went to the house of

the appellant where appellant was not found. Investigating

Officer prepared the site plan Ex.PW13/B, recorded the

statements of witnesses. On 16.1.1994, Investigating Officer

again visited the house of the appellant and arrested him in

this case. Post-mortem was conducted on the dead body and

thereafter the dead body was handed over to her mother.

Investigating Officer sent sealed parcel to CFSL. After

completion of investigation, charge-sheet under Section 498-

A/304-B of IPC was filed against the appellant.

3. Appellant/accused was put to trial for commission of

aforesaid offences, as he had pleaded not guilty. During the

trial, thirteen witnesses have deposed and out of them, the

material evidence is of Smt Sudesh (PW-1), mother of the

deceased, Ravinder Kumar (PW-2), brother of the deceased,

Shri P.C. Chaturvedi (PW-5), SDM, who had conducted the

inquest proceedings and that of Dr. S.K. Khanna (PW-4) who

has opined the cause of death of Rajni as due to shock

consequent upon ante-mortem burns. Swatantra Bhushan (PW-

3) is the neighbour of appellant/accused who has not

Crl.A. No. 293/1999 Page 3 supported the prosecution case. SI Kamal Singh (PW-13) is the

Investigating Officer of this case.

4. The stand taken by the appellant/accused before the trial

court is of denial of the prosecution case and of Rajni

remaining sick and of her committing suicide on account of her

sickness and not because of harassment for dowry. No

evidence in defence was led by the appellant before the trial

court.

5. Both the sides have been heard in this appeal and the

evidence on record has been analysed.

6. It has been pointed out by learned counsel for the

appellant that on 18th July, 1994, although amicus curiae

counsel was provided by the trial court to the

appellant/accused but thereafter he did not appear and the

trial proceeded, without cross-examination of the material

witnesses i.e. PW-1 and PW-2 by the Amicus Curiae Counsel

and appellant/accused had cross examined them on the

directions of the trial court, which has resulted in great

prejudice to the appellant.

7. On merits, it is found that the evidence of mother (PW-1)

and brother (PW-2) of the deceased reveals that no dowry was

given at the time of marriage of Rajni with accused/appellant

as mother and brother of the deceased were said to be poor

persons. It has also come in evidence on record that Rajni had

Crl.A. No. 293/1999 Page 4 lived happily with accused/appellant for about one year after

her marriage. Thereafter, Rajni had given birth to a daughter

and then the demand for rupees ten thousand for purchase of

three wheeler scooter or demand for the said scooter was

purportedly made by the appellant/accused and since the

aforesaid demand was not met, there was harassment of Rajni

by the appellant/accused. Mother of the deceased has stated

in her statement Ex.PW1/A before the SDM, (which is duly

proved by her in her evidence) that appellant/accused used to

sell tea but earlier he used to ply three wheeler scooter and

that the appellant/accused was a drunkard and he used to

harass the deceased as demand for rupees ten thousand or a

three wheeler scooter was not met and about one and a half

years, prior to this incident, Rajni was left at her parental

house, where she lived for about one year and thereafter, on

request of the relatives of both the families, Rajni was taken

back by the appellant, on the promise that he will not harass

her again.

8. Aforesaid version is sought to be dislodged by the

defence by contending that both the sides were poor and

marriage in question was performed, after brother of the

deceased had arranged for rupees fifteen thousand and since

family of the deceased was not in capacity to pay anything,

there was no point in making any demand for dowry or for

harassing the deceased on that account.

Crl.A. No. 293/1999 Page 5

9. Above said contention does not cut any ice, because

greed sees no reason. It really does not matter to greedy

people, as to whether the demand for money/dowry is met by

begging, borrowing or stealing. In any case, appellant/accused

need not be legally qualified to ask the mother and brother of

the deceased in cross examination as to how any demand

could have been made to them by the appellant/accused on

account of their poverty. There is no cross examination of the

mother and brother of the deceased by the appellant on the

abovesaid vital aspect. It is true that the trial court was not

right in observing that no specific suggestions have been given

by the appellant/accused to the witnesses, but in any case, on

facts, there should have been effective questioning of the

mother and brother of the deceased by appellant/accused as a

layman.

10. When the crucial evidence of the mother and brother of

the deceased is considered as a whole, it becomes crystal

clear that their evidence remains unshaken, so far as the

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

concerned. However, it transpires from their evidence that the

necessary ingredients of harassment/cruelty "soon before the

death" is completely missing. There has to be proximate and

live link between the effect of cruelty based on dowry demand

and the unnatural death. In this regard, decisions of the Apex

Court reported in 2004 (1) JCC 627; 2005 (1) JCC 338 and

Crl.A. No. 293/1999 Page 6 2007 IV AD Criminal (SC) 565 can be referred to with

advantage.

11. The evidence on record is completely silent as to what

had happened during the period of one and half years i.e.

between the period of her return to her matrimonial house and

her unnatural death. Trial court has gravely erred in

overlooking the above said vital aspect and has committed a

material illegality in convicting the appellant/accused for the

grave offence of dowry death.

12. Although it stands proved from the evidence on record

that the deceased had died unnatural death in her matrimonial

house but unless and until, prosecution succeeds in proving

that the deceased was subjected to cruelty soon before her

death, statutory presumption under Section 113-B of the

Evidence Act cannot be raised against the accused. As already

observed above, prosecution has failed to establish the

necessary ingredients of the offence of dowry death, of proving

that "soon before her death", deceased was subjected to

cruelty on account of dowry demand or insufficiency of dowry,

therefore, it was not legitimate on the part of the trial court to

have drawn adverse inference against the appellant/accused of

failing to prove that the deceased used to remain sick or of her

committing suicide on that account. In my considered opinion,

Crl.A. No. 293/1999 Page 7 the conviction of the appellant/accused for the offence of

dowry death is unsustainable and is thus set aside.

13. The offence of "abetment of suicide" is a lesser offence,

than that of "dowry death". This Court in the case of Mamta

Sahu (Smt) V. State of Delhi 2005 IV AD (Criminal ) DHC

157, has highlighted the ingredients of Section 306 of the

Indian Penal Code i.e. the offence of "abetment of suicide" in

the following words:-

" WhenSection 107 of the Indian Penal Code is read carefully, it is clear that for constituting abetment, the accused should either instigate any person to do the thing or engages with one or more other person or persons in any conspiracy for the doing of that thing of intentionally aid by any act or omission the doing of that thing. There are two explanations to this Section. A person who by wilful misrepresentation, or by wiflful concealment of a material fact can be said to have instigated the thing which is done on account of such concealment or misrepresentation. Explanation 2 prescribes that an abetment can be done either prior to or at the time of of the commission of that act. In the present case, there is nothing to suggest that the accused had instigated or aided the deceased in commission of suicide. Nor is there any evidence to show that she had engaged with some other person or persons for doing any act. There is no evidence that any concealment or misrepresentation on her part had led the deceased to commit suicide. There is no evidence that she in any way did anything to facilitate the commission of suicide by the deceased"

14. In the instant case, except a vague assertion by mother

of the deceased of Rajni complaining to her about harassment

by the accused/appellant, there is nothing on record to show

as to by what conduct, appellant/accused had abetted or

Crl.A. No. 293/1999 Page 8 instigated his wife to commit suicide. To my mind, the

evidence on record is clearly insufficient for convicting the

appellant even for the offence under Section 306 of the Indian

Penal Code.

15. Vide impugned judgment/order, appellant/ accused has

been sentenced by the trial court to RI for two years for

commission of offence under Section 498-A of the Indian Penal

Code. During the course of the arguments, learned counsel for

the appellant had brought to the notice of this court that the

appellant has already deposited the fine and has undergone

substantive sentence of one year in this case. Considering the

fact that the appellant has faced the trial and the appeal

proceedings in this case since January, 1994 and the fact that

he has been on bail for most of the period in these proceedings

and that the daughter of the appellant is of marriageable age

by now, ends of justice would be met, if the sentence of two

years is reduced to the aforesaid period of one year already

undergone in judicial custody by the appellant. It is ordered

accordingly. Substantive Sentence imposed upon the appellant

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

stands reduced to the period already undergone by him in

judicial custody and his conviction and sentence for the

offence under Section 304-B of Indian Penal Code is set aside.

Appellant is on bail. His bail bonds and surety bonds are

discharged.

Crl.A. No. 293/1999 Page 9

16. It needs to be noticed that although the main grievance

of the appellant was that the constitutional obligation of the

State of providing fair trial for a serious offence like the

present one, has not been fulfilled and, therefore, this case

merits re-trial. Since the appellant has virtually succeeded on

merits, therefore, this aspect need not be gone into in great

detail.

17. However, before parting with this order, with great

concern, it is noted that the evidence of the mother and

brother of the deceased was recorded by the trial court on 2 nd

January, 1997 and they ought to have been cross examined by

Amicus Curiae Counsel but instead thereof, the accused

himself was called upon to cross examine these two material

witnesses. The order sheet of the trial court of 2nd January,

1997 speaks for itself and reads as under :-

"2/1/97 Pres: APP for State.

Accd. on bail.

PW 1,2 and 3 examined & discharged.

No other PW is present.

Put up on 21/3/1997 for RPE.

At this stage accd. requests for another Amicus Curiae as the previous Amicus Curiae has left the practice. Accordingly, I appoint Shri P.S. Singhal, Adv. as Amicus Curiae. Notice be sent to him.

Sd/-

ADJ/2.1.97"

Crl.A. No. 293/1999 Page 10

18. To say the least, aforesaid approach of the trial court is

highly unsatisfactorily and does not disclose the any sensitivity

in the conduct of a criminal trial at Sessions level. Trial court

was of oblivious of the dictum of the Apex court rendered way

back in the case of Sukdas V. Union Territory of Arunachal

Pradesh (1986)2 Supreme Court Cases 401 which is to the

effect that the criminal trial ought not to proceed without

adequate legal representation being afforded to the accused

and the accused need not seek free legal aid and if he is

unrepresented by a counsel, then the courts are duty bound to

provide free legal aid to such an accused.

19. A word of caution, which needs to be sounded to the trial

courts, is that the free legal assistance to be provided has to

be "adequate". Meaning thereby, in the "Sessions Trial", legal

aid counsels of reasonable standing and experience ought to

be provided to unrepresented accused and in any case, trial

court should desist from examining material witnesses, in the

absence of legal aid counsels, save and except in

extraordinary circumstances, which ought to be brought on

record.

20. The need for sounding the aforesaid note of caution arose

as it was brought to the notice of this Court by learned counsel

for the appellant, during the course of hearing of this appeal,

Crl.A. No. 293/1999 Page 11 that in Sessions Trial for serious offences, immature legal aid

counsels are randomly provided by the trial courts, which

causes serious prejudice to the poor accused. In this

background, it is deemed appropriate that copy of this order

be sent to the learned District & Sessions Judge-I at Tis

Hazari Courts , Delhi to sensitise the trial courts in the matter

of providing legal aid counsels.

21. With aforesaid directions, this appeal stands partly

allowed, to the extent indicated above.

                                                    SUNIL GAUR, J
January 06, 2009
dkg




Crl.A. No. 293/1999                                                  Page 12