Laxmi Saran vs The State (N.C.T. Of Delhi)
2009 Latest Caselaw 2112 Del

*                    HIGH COURT OF DELHI : NEW DELHI

               Judgment reserved on: May 01, 2009
               Judgment delivered on: May 18, 2009

+                             Crl. A. No. 497/1999

%        Laxmi Saran                 ...       Appellant
                  Through: Mr. R.K. Mehta, Advocate

                                       versus

         The State (N.C.T. 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. Appellant- Laxmi Saran, is the husband of the

deceased, who has been convicted and sentenced vide

impugned judgment/ order for committing offence of

dowry death more than twelve years ago.

2. Appellant was married to Raj Bala in the year 1991.

For a period of about 1½ months, after this marriage, Raj

Bala had stayed in her matrimonial house happily with the

appellant. It is stated that after about two months of this

marriage, appellant had demanded a sum of rupees Crl. Appeal No. 497 of 1999 Page 1 twenty thousand for running some business and the said

amount was paid by Krishan Kumar (PW-1), who happens

to be brother of Raj Bala. According to brother (PW-1) of

Raj Bala, she used to visit her parental house three or four

times in a year and she used to tell him that appellant

used to demand colour television, fridge and other articles

from time to time and the appellant did not use to do any

work and he was a drunkard and was a gambler.

3. On 9th October, 1996, at about 9:30 p.m., information

was received from the house of the appellant that Raj Bala

was missing. A dead body of a female was found at

railway lines near Village Shahbad, Mohd. Pur in Delhi and

information of this case was received vide DD No. 12 (EX.

PW7/A) and it was identified to be of Raj Bala. Inquest

proceedings followed, post mortem on the dead body of

Raj Bala was conducted, the statements of brother (PW-1),

mother (PW-2) and sister (PW-3) of the deceased were

recorded. Appellant/accused was arrested during the

course of the investigation of the case. After the

investigation was complete, charge sheet for the offence

under Sections 304-B/498-A of the Indian Penal Code

(hereinafter referred to as the 'IPC') was filed.

4. Trial commenced as the appellant/accused chose to

contest the charges framed against him for the above said Crl. Appeal No. 497 of 1999 Page 2 offences. An alternate charge under Section 306 of IPC

was also framed, which was also contested by appellant/

accused.

5. In all, seven witnesses have deposed in this case and

the prosecution evidence primarily consisted of the

evidence of brother (PW-1), mother (PW-2) and sister (PW-

3) of the deceased. Doctor S. Saxena (PW-6) has proved

the post-mortem report of the deceased, ASI Dalip Singh

(PW-7) is the Investigating Officer of this case. After the

prosecution evidence was over, statement of the

appellant/accused was recorded by the trial court, in

which he had denied the incriminating evidence, which

came on record against him. Appellant pleaded that he

was innocent and his wife had committed suicide because

she was depressed and frustrated, as she could not bear a

child and that he was not responsible for her death.

Appellant had got examined his sister-in-law (bhabhi)

(DW-1), who gave clean chit to the appellant by stating

that the appellant is her brother-in-law (jeth) and the

deceased used to remain upset, because, she could not

bear a child and the deceased was being treated for

infertility. She had stated in her evidence that she had

never seen the appellant quarrelling with the deceased

and no cruelty was meted out to the deceased by the

Crl. Appeal No. 497 of 1999 Page 3 appellant. The trial concluded with the conviction of the

appellant for the offence of dowry death. Vide impugned

of 31st August, 1999, the trial court has sentenced the

appellant to rigorous imprisonment of seven years for the

offence of dowry death and he has also been sentenced

for commission of offence under section 498-A of the IPC

to rigorous imprisonment of two years with fine of Rupees

five hundred, which is assailed in this appeal.

6. Both the sides have addressed their respective

submissions and have assisted this court in scrutinizing

the evidence on record.

7. The foremost contention advanced by learned

counsel for the Appellant is that there are no allegations in

the statements made by the relatives of the deceased,

before the SDM that the deceased was subjected to

cruelty and harassment by the appellant/accused for

bringing more dowry or on account of insufficiency of

dowry. It is further contended that the allegations leveled

by the relatives of the deceased against the

appellant/accused are quite vague and there is no

independent witness to corroborate these allegations and

in any case, there is no evidence worth the name, to

incriminate the appellant/accused regarding deceased

being subjected to cruelty „soon before her death‟, by the Crl. Appeal No. 497 of 1999 Page 4 appellant/accused. The argument advanced was that the

deceased was a short tempered lady and she used to

remain depressed because she could not bear a child and

therefore, she had committed suicide and the

appellant/accused is no way responsible for it. Lastly, it is

contended that the Apex Court, in its decision, in AIR

2004 SC 1747 had given benefit of doubt to the accused

as the witnesses had improved upon their versions and

the allegations were not specific. Thus, it is contended

that the impugned judgment is illegal and deserves to be

set aside and the appellant/accused ought to be acquitted.

8. On behalf of the Respondent-State, impugned

judgment and order is defended by learned Additional

Public Prosecutor for the State, by submitting that it is

factually incorrect that there are no allegations of

harassment of the deceased by the appellant/accused in

the statement made by brother (PW-1), mother (PW-2)

and sister (PW-3) regarding deceased being subjected to

cruelty on account of dowry demands. It is submitted that

the decision of the Apex Court relied upon by the

appellant/accused is distinguishable on facts and the

evidence on record supports the conviction and sentence

imposed upon the appellant/accused. Nothing else is

urged by either side.

Crl. Appeal No. 497 of 1999 Page 5

9. In order to attract section 304-B of Indian Penal Code,

what is required to be established by the prosecution is

that the unnatural death of a lady must have occurred

within seven years of marriage and „soon before her

death‟, such a woman has been subjected to cruelty or

harassment by her husband or the relatives of the

husband and the said cruelty/harassment must be in

connection with the demand of dowry.

10. It is not in dispute that the prosecution has

succeeding in proving that wife of the appellant/accused

had died unnatural death within about five and half years

of her marriage with the appellant/accused. Before

statutory presumption under section 113-B of Evidence

Act can be raised against the accused, the essential

ingredients of the offence of dowry death, which the

prosecution is duty bound to prove, is that deceased was

subjected to cruelty/harassment by her husband.

11. In view of the aforesaid, the evidence of the three

material witnesses of this case, i.e., of brother (PW-1),

mother (PW-2) and sister (PW-3) of the deceased has been

scrutinized. It has been found that the aforesaid three

witnesses in their statements Ex.PW-1/A, Ex.PW-2/A and

Ex.PW-3/A, made before the SDM have clearly stated that

the deceased was subjected to cruelty and harassment by Crl. Appeal No. 497 of 1999 Page 6 the appellant/accused and within a short period of the

marriage of the deceased with the appellant/accused,

demand of dowry of Rs.20,000/- was made by the

appellant/accused and the same was fulfilled. It also

transpired from the aforesaid statements that appellant/

accused had demanded dowry and the deceased was

given beating by the appellant/accused. Thus, it cannot be

said that the aforesaid statements of the brother, mother

and sister of the deceased made before the SDM does not

incriminate the appellant/accused at all.

12. Regarding the allegations of dowry demands and

harassment on account of its non-fulfillment, being vague,

the material prosecution witnesses have been cross-

examined by the defence to establish the plea of

vagueness. Such a course has not been adopted by the

defence and so, no benefit accrues to the appellant/

accused on this account. In cases, like the present one,

generally speaking, there can be no independent

witnesses.

13. Although sister-in-law (Bhabhi), (DW-1) of appellant/

accused has stated in her evidence that the deceased was

short tempered lady, but in the same breadth, she had

stated that she had never seen appellant/accused

quarrelling with the deceased over dowry demand.

Crl. Appeal No. 497 of 1999 Page 7 According to this witness, the deceased had committed

suicide because she could not bear a child and there was

no demand of dowry by the appellant/accused from the

deceased or her family.

14. Aforesaid defence plea is clearly an afterthought as

the same has not been suggested to the material

prosecution witnesses. Furthermore, the plea of the

appellant/accused as referred to above, does not sound to

be plausible one and hence, the same has been rightly

rejected by the trial court.

15. From the evidence of the brother (PW-1), mother

(PW-2) and sister (PW-3) of the deceased, it clearly stands

proved that the deceased was subjected to cruelty and

harassment on account of insufficiency of dowry and

dowry demand of color TV, fridge and other articles was

raised by the appellant/accused from time to time. Thus, it

stands abundantly proved from the evidence on record

that the offence under section 498-A of the Indian Penal

Code has been committed by the appellant/accused.

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

offence of dowry death or of abetment of suicide by wife

of the appellant/accused stands committed by him or not.

17. In "Baldev Singh Vs. State of Punjab", AIR 2009 SC

Crl. Appeal No. 497 of 1999 Page 8 913, Apex Court has succinctly reiterated the necessary

ingredients of the dowry death in the following words:-

"A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression `soon before' is Crl. Appeal No. 497 of 1999 Page 9 not defined."

18. The law was set into motion in this case, on the

statement of brother (PW-1) of the deceased. To bring this

within the sweep of section 304-B of Indian Penal Code,

there has to be clear cut evidence that 'soon before' her

death, the deceased was subjected to cruelty and

harassment on account of insufficiency of dowry or for

non-fulfillment of dowry demands. From this point of view,

evidence of the relatives of the deceased has been

scrutinized and it has transpired that brother (PW-1) of the

deceased has remained contended by simply asserting in

evidence that the deceased has committed suicide on

account of demand of more dowry by the accused. To say

the least, this solitary assertion would neither bring this

case within the ambit of section 306 of Indian Penal Code

nor within the scope of section 304-B of Indian Penal Code.

However, mother (PW-2) of the deceased has categorically

stated in her evidence that her daughter (since deceased)

had come to her house eight days prior to this incident

and had told her that appellant/accused was demanding

color TV, etc., and he had beaten the deceased on this

account. Here, learned counsel for the Appellant is right in

contending that the aforesaid assertion of the mother (PW-

2) of deceased is a material improvement as she had not

stated so in her statement (Ex. PW-2/A) before the SDM.

Crl. Appeal No. 497 of 1999 Page 10 Had it been so, then she would have definitely stated it in

her statement before the SDM. Trial Judge has gravely

erred in ignoring this vital aspect. In the similar

circumstances, in a decision reported in AIR 2004 SC

1747, while discarding the improved version, accused was

acquitted for the offence of dowry death.

19. Now I shall deal with the evidence of sister (PW-3) of

the deceased. She has claimed in her evidence that about

one or one and half months prior to this incident,

appellant/accused had come to the parental house of the

deceased and had told that he was beaten by the

deceased and she had verified this fact from the

neighbours of the appellant/accused, who had denied it.

This witness (PW-3) in her evidence has expressed her

suspicion about appellant/accused murdering his wife but

she does not state in her evidence in so many words that

she has seen or heard deceased being treated cruelly by

the appellant/accused for non-fulfillment of dowry demand

of color TV. The evidence of this witness (PW-3) does not

incriminate appellant/accused for the offence of dowry

death, nor for the offence under Section 306 of IPC.

20. In the ultimate analysis, this court is constrained to

observe that the aforesaid evidence of the relatives of the

deceased is clearly insufficient to bring this case within Crl. Appeal No. 497 of 1999 Page 11 the ambit of section 306 or section 304-B of Indian Penal

Code. Therefore, statutory presumptions available under

Section 113-A or under Section 113-B of Evidence Act

cannot possibly be raised against the appellant/accused.

Trial court has clearly ignored the hard reality that there is

no tangible evidence on record to sufficiently prove that

the appellant/accused had subjected the deceased to

cruelty or harassment „soon before her death‟. Thus, the

impugned judgment convicting the appellant/accused for

the offence of dowry death cannot be sustained and

deserves to be set aside. However, the conviction of the

Appellant for the offence under section 498-A of Indian

Penal Code is justified and is hereby maintained.

21. Even the alternate charge framed against the

Appellant of his abetting the suicide committed by his wife

remains unsubstantiated. Therefore, the appellant cannot

be convicted for committing the offence under section 306

of the Indian Penal Code. It appears from the evidence on

record that appellant/accused was a drunkard, a gambler

and good for nothing. In all probability, the deceased had

committed suicide out of sheer frustration. Be that as it

may. There is nothing on record to show that the

appellant/accused by his act or conduct, had willfully

abetted the suicide of his wife.

Crl. Appeal No. 497 of 1999 Page 12

22. In the light of the aforesaid narration, neither the

charge of dowry death nor of abetment of suicide stands

established and the conviction of the appellant/accused

for the offence of dowry death is not supported by the

evidence on record and therefore, it is set aside. However,

the conviction of the appellant/accused under section 498-

A of Indian Penal Code finds support from the evidence on

record and is hereby upheld.

23. The sentence imposed upon the appellant/accused

for the offence under section 498-A of Indian Penal Code,

is of rigorous imprisonment for two years with a fine of

Rs.500/- only and in default of payment of fine, Appellant

has to undergo rigorous imprisonment for one month.

Nominal roll of the Appellant reflects that the Appellant

has already undergone the substantive sentence for this

offence. He is on bail. His bail bonds and surety bonds are

discharged and he is set free in this case.

24. In the terms, as aforesaid, this appeal stands partly

allowed.

Sunil Gaur, J.

May 18, 2009
rs/pkb




Crl. Appeal No. 497 of 1999                              Page 13