Delhi High Court

Surinder Kumar vs State (Delhi Administration) on 26 May, 2009

Author: V.B.Gupta

*      HIGH COURT OF DELHI : NEW DELHI

                      Crl. Appeal No.91/1993

%                         Judgment delivered on: 26th May, 2009

SURINDER KUMAR
S/O SH.CHANGE PRASHAD GUPTA
R/O J-738, KARTAR NAGAR,
SEELAMPUR, DELHI.                                    .... Appellant

                          Through: Mr K.B.Andley, Sr.Advocate
                                   with Mr Shamibh and Mr
                                   Mohit Mathur, Adv.

                                    Versus.

STATE (DELHI ADMINISTRATION)
DELHI.                                             ..... Respondent

                          Through : Mr M.N. Dudeja.

Coram:
HON'BLE MR.JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.B. GUPTA

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

2. To be referred to Reporter or not?                              Yes

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


V.B. GUPTA, J.

Appellant has filed this appeal against the

judgment of conviction dated 12th May, 1993 and order

of sentence, dated 18th May, 1993 passed by Additional

Sessions Judge, Shahdara, Delhi.

2. Vide impugned judgment, appellant had been

convicted under Section 304-B/498-A of Indian Penal

Code (for short as „Code‟) and sentenced to undergo

rigorous imprisonment for life under Section 304-B of

the Code and for offence under Section 498A of the

Code, sentenced to undergo rigorous imprisonment for

three years and to pay a fine of Rs.1,000/-. In default

of payment of fine, appellant has to further undergo

rigorous imprisonment for three months. Both the

substantive sentences were ordered to be run

concurrently and appellant was given benefit of

Section 428 of Code of Criminal Procedure only for the

sentence awarded under Section 498A of the Code.

3. Brief facts are, that appellant and Sarvesh (since

deceased) were married on 2nd December, 1987. After

marriage, both were living at premises No.J-738,

Kartar Nagar, Seelampur, Delhi. Deceased used to

complain that appellant was maltreating her and used

to give her beatings and was asking her to bring

Rs.20,000/- from her parents. On the night of 12th

June, 1988 at about midnight, Sarvesh put herself to

fire in a room which was bolted from inside. The fire

was put off after breaking open the door and Sarvesh

died on account of burn injuries.

4. Present case was registered on the statement of

Radhey Shyam, father of deceased recorded by sub-

Divisional Magistrate. After completing the

investigation, challan was filed in court and charges

under Section 498-A and 304-B of the Code were

framed on 11th January, 1989 against appellant to

which he pleaded not guilty and claimed trial.

5. Prosecution in support of its case, examined in all

14 witnesses. Thereafter, statement of the appellant

was recorded under Section 313 CrP.C. In his defence

evidence, appellant examined two witnesses.

6. It has been contended by learned counsel for

appellant that there is no legal evidence of alleged

harassment of deceased by the appellant, particularly

in view of the fact that there was no earlier complaint

in that connection by deceased or any other member of

family of deceased, either to police or to any higher

authority. After the incident, Chinranji Lal (PW-4),

brother of deceased and Chhote Lal (PW-3) uncle of

deceased, reached the house of appellant within

three/four hours of the incident. However, none of

these two close relatives of the deceased gave any

statement to the police or Sub Divisional Magistrate

regarding the alleged harassment or alleged demand

of dowry by the appellant. This clearly shows that the

entire case was subsequently concocted and

fabricated. There is also delay of three days in

recording of the F.I.R. which has not been explained,

as the statement of Radhey Shyam (PW-1) father of the

deceased was recorded by Sub Divisional Magistrate

only on 13th June, 1988.

7. Other contention is that the conduct of appellant

in the present case was not that of a guilty person, as it

was the appellant who informed the police about the

incident, as the same was recorded vide DD No.37-A(

Ex.DA) dated 12th June, 1988 at P.S. Seelampur. He

also sent Raj Bahadur (DW-2) to inform PW-3 and PW-

4, the close relatives of deceased about the incident.

Appellant also broke open the door of the room and

took the deceased to hospital.

8. Another contention is that statement of Chhote

Lal (PW-3) who is uncle of deceased, as recorded in the

court, is at complete variance with his statement

Ex.PW-3/A recorded by Sub Divisional Magistrate. PW-

3 tried to make improvements upon his earlier

statement.

9. Chiranji Lal (PW-4) brother of the deceased, did

not utter a single word about any harassment or

maltreatment of deceased by appellant, for dowry or

otherwise. Moreover, PW-4 and PW-3 did not give any

history of maltreatment of deceased, regarding dowry

etc. to Sub Divisional Magistrate (PW-6) on 13th June,

1988, when Sub Divisional Magistrate went to the

scene of occurrence. There are material

contradictions in the statement of prosecution

witnesses. Statement of PW-1, father of the deceased

and PW-2, sister-in-law of the deceased, are at

variance with their earlier statements. None of the

neighbours of appellant, have been cited as

prosecution witnesses nor have been examined in the

court, when admittedly they were examined during the

investigation by Sub Divisional Magistrate as well as

investigating officer.

10. On the other hand, it has been contended by

learned counsel for State that in the present case,

provisions of Section 304B of the Code are fully

attracted as death of deceased took within six months

of her marriage and she died an unnatural death due

to burn injuries at her matrimonial home and it was

due to the demand of dowry. In view of the Section

113B of the Indian Evidence Act, the appellant shall be

presumed to have committed the dowry death

provided, other requirements mentioned in the section

are satisfied. In support of its case, learned Prosecutor

cited a decision of Supreme Court: Hem Chand v.

State of Haryana (1994) 6 SCC 727.

11. Other contention is that there was a demand of

dowry and harassment of deceased. Immediately

before her death, as a Punchayat was held at the

house of Gauri Shankar in which Radhey Shyam (PW1)

father of deceased, Chiranji Lal ( PW4) brother of

deceased, Smt. Roshini (PW-2) wife of PW-4, appellant

and his brother Raj Bahadur (DW-2) were present. In

that meeting, deceased told that she was being

tortured and beaten by appellant and other members

of his family and they were asking her to bring

Rs.20,000/- from her parents and Radhey Shyam (PW-

1) showed his inability to pay that amount.

12. There is no cross-examination on this aspect. PW-

1 also confirmed this fact that he discussed the matter

with appellant and his brother and thereafter, he left

for Agra.

13. It is also contended that Smt. Roshini (PW-2) has

also stated that deceased told her about the demand.

There is no cross-examination and admittedly, PW-2

was also present in the meeting held at the house of

Gauri Shankar.

14. Chhote Lal (PW-3) has stated about calling of PW-

1 to Delhi to settle the dispute and this fact had been

corroborated by PW-1 and PW-2 and there is no cross-

examination. PW-1 in his complaint (Ex.PW1/A) has

also stated about the demand of Rs.20,000/- from his

daughter. So, under these circumstances, the

prosecution has fully established its case against the

appellant and there is no infirmity or ambiguity in the

judgment of the trial court.

15. The case of the prosecution as narrated above is

that deceased Smt.Sarvesh Kumari was subjected to

cruelty for demand of dowry and as a result thereof

she committed suicide.

16. On the other hand, as per statement of the

appellant recorded under Section 313 Cr.P.C. his

defence is that he is innocent and had been falsely

implicated in this case. He never made any demand of

dowry or anything from his wife or her relatives. But

deceased was not happy in living with him and was

always adamant for going to Agra. On appellant‟s

asking the reason, she told him that she had been

married with him against her wishes and she does not

want to live with him. Deceased also told him that

earlier she was engaged with Ram Akhtyar, nephew of

her father‟s sister and her parents demanded

Rs.10,000/- from Ram Akhtyar and her engagement

was broken as Ram Akhtyar did not pay this amount to

her parents and she was hurriedly engaged with the

appellant.

17. Appellant further stated that on 11th June, 1988,

his wife was adamant to go Agra and as he was not

feeling well, he told her that he will leave her at her

parents‟ house after some time but she continued

insisting for going to Agra. At about 11.00 p.m. as

usual, he had gone to sleep and at about 12.30 or 1.00

a.m., when he woke up for urinating, he found that

there was fire in his room. Prior to that, at about

11.00 p.m., he and his wife were sleeping in Verandah.

When he saw fire in his room and found the door

bolted from inside, he tried to open the door but could

not succeed and, therefore, he hit the door from

outside with pipe of hand pump and raised noise. Due

to hitting with pipe, kundi of the door was broken and

he went inside and found that deceased was badly

burnt and was dead. He asked Sh.Tehsildar, his

neighbour who had come there, on his cries, to call his

brother Raj Bahadur. He then sent Raj Bahadur for

calling Chote Lal and Chiranji Lal, uncle and brother of

the deceased. Both of them came with Raj Bahadur at

his house and saw the deceased lying there.

18. Appellant then left them at his house and he along

with his brother Raj Bahadur, went to the police

station Seelampur and informed the police. The police

official came with him and they made enquiries. Police

also called the Sub Divisional Magistrate. Nobody

made any allegations against him before the police or

the Sub Divisional Magistrate. His wife was cremated

in the presence of Chiranji Lal and Chote Lal, PWs who

participated in the cremation. Later on his father-in-

law came to Delhi and falsely implicated him in the

present case by making false allegations of demand of

dowry and torture. His father-in-law started

blackmailing him and demanded Rs.50,000/- from him.

Since he failed to give this amount he was falsely

implicated in this case.

19. Relevant provisions of the Code in this case are

Sections 304-B and 498 A, which read as under;

"304-B. Dowry Death- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.

Explanation - For the purpose of this Sub-section `dowry' shall have same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

498-A: Husband or relative of husband of a woman subjecting her to cruelty- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation - For the purpose of this section „cruelty‟ means -

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

20. The term "dowry" has been defined in Section 2 of

the Dowry Prohibition Act, 1961 (in short `Dowry Act')

which reads as under:

"Section 2. Definition of `dowry' - In this Act, `dowry' means any property or valuable security given or agreed to be given either directly or indirectly -

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies.

Explanation I- (omitted)

Explanation II- The expression `valuable security' has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).

21. Section 113B of the Indian Evidence Act is also

relevant for the case in hand, and it reads as under:

"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 has 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 purposes of this section `dowry death' shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)."

22. Supreme Court in Prem Kanwar v. State of

Rajasthan, 2009 CriLJ 1123 while dealing with

Section 304-B of the Code, Section 113B of the Indian

Evidence Act and Dowry Prohibition Act, 1961 held

that;

"Explanation to Section 304B refers to dowry "as having the same meaning as in Section 2 of Dowry Act", the question is what is the periphery of the dowry as defined therein? The argument is, there has to be an agreement at the time of the marriage in view of the words "agreed to be given" occurring therein, and in the absence of any such evidence it would not constitute to be a dowry. It is noticeable, as this definition by amendment includes not only the period before and at the

marriage but also the period subsequent to the marriage. This position was highlighted in Pawan Kumar and Ors. v. State of Haryana (1998 (3) SCC 309)".

"The offence alleged against the accused is under Section 304-B, IPC which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offender would come under the clutches of law. When Section 304-B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in

Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act.

"Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry."

23. In order to attract Section 304-B of the Code,

following ingredients are to be satisfied:

i. The death of a woman must have been caused by

burns or bodily injury or otherwise than under

normal circumstances;

ii. Such death must have occurred within seven

years of the marriage;

iii. Soon before her death, the woman must have

been subjected to cruelty or harassment by her

husband or any relative of her husband; and

iv. Such cruelty or harassment must be in connection

with the demand of dowry.

24. In the present case, marriage of appellant was

solemnized with deceased Sarvesh on 2.12.1987, as

per Hindu rites and ceremonies. After marriage, he

and deceased, stayed together at House No. J-738,

Kartar Nagar, Seelampur, Delhi. On 12.6.1988 (day of

the incident) at about midnight, Sarvesh was burnt as

reported by the appellant. As per these facts, first

ingredient to be satisfied is that, death of a woman had

been caused by burns or bodily injury or otherwise

than under normal circumstances. The fact that she

died due to burn injuries is clear from the post mortem

report Ex PW11/A which states the cause of death as

"shock due to fire burns".

25. Second ingredient, that the death took place

within seven years of marriage, is also there as factum

of marriage has been admitted to have taken place on

2.12.1987, while the incident having taken place on

12.6.1988 i.e. within six months of the marriage.

26. Now, question for consideration is as to whether

deceased soon before her death, was subjected to

cruelty or harassment by her husband or any relative

of her husband; and such cruelty or harassment was in

connection with demand of dowry.

27. Supreme Court in Hem Chand v. State of

Haryana, (supra) held that:

"It can be seen that Section 304B I.P.C. lays down that "Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A reading of Section 304B I.P.C. would show that when a question arises

whether a person has committed the offence of dowry death of a woman that all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death shall presume to have caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the

presumption that has been incorporated in Section 304B I.P.C. also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied."

28. In Tarsem Singh v. State of Punjab, 2008 (16)

SCALE 168 Supreme Court held;

"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 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".

29. Testimony of PW1, Radhey Shyam father of

deceased, is relevant, who in his cross examination

stated:

"I was told by my daughter Sarvesh at the house of Gauri Shankar that she was being tortured and she told me in detail about the torture and demand of Rs.20,000/- at the house of Chhote Lal".

He further stated:

"Sarvesh had come to Bateshwar about 1½ month prior to her death

when she told me about the torture and demand."

30. PW2, Smt. Roshni sister in law of the deceased,

deposed in her cross-examination:

"It was after about 2/3 months of the marriage that Sarvesh told me that the accused demanded Rs. 20,000/- from her and that the accused also harassed her on the ground that she did not serve his mother and sister. In fact the accused also told us that Sarvesh did not serve his mother and sister. We had called both, the accused and Sarvesh and made them understand. At the time of the said intervention, myself, my husband and my husband‟s uncle Chhote Lal were present. Thereafter, Sarvesh came to our house after a fortnight and she complained of the same ill-treatment to us. I had in all gone twice to the house of Sarvesh after her marriage. We had again called both of them to our house and made them understand and at that time, myself and my husband were present."

31. Besides this, uncle of deceased i.e. PW3, Chhote

Lal and brother of deceased i.e. PW4, Chiranji Lal,

admitted that deceased was being taunted and

tortured by her in laws. Although, they did not

specifically state about any dowry demand but the fact

that she was subjected to cruelty, had been admitted

by them.

32. Counsel for appellant argued that neither

deceased nor her relatives, ever made any complaints

regarding dowry demand or ill treatment given to her

by appellant.

33. Trial Court in this regard observed:

"I am not in agreement with the aforesaid submission made on behalf of the accused because in this case, the marriage took place on 2.12.1987 and Sarvesh (deceased) died after about six months of her marriage and in our social set up it is very common that the parents and other relatives of a bride, choose not to raise hue-&- cry in the early months about the ill treatment meted to the bride thinking it to be mis-adjustment and they think it better to wait and let the dust of matrimonial mis-adjustment settle-down, by lapse of time and for the same reasons, the new bride also tries to conceal the true picture of

her married life from her parents and other relatives in the hope that better sences will prevail upon her husband and in-laws and that the time will be a better healer than to grin about the defects, faults and demands or ill treatment by her husband and in- laws. It is only when her cup of submissiveness is full to the brim with maltreatment that she chooses to complain about her husband and in-laws to her parents and other relatives."

34. In instant case, just because deceased and her

relatives choose not to make any complaint, can it be a

ground to discard their testimonies. Indian society has

not advanced to that stage, where ordinary people

would immediately take recourse to the law.

35. Evidence of PWs 1, 2, 3, 4, clearly shows the

greed of appellant who was persistently taunting and

harassing the deceased for not having brought

sufficient dowry. Therefore, the trial Court was fully

justified in convicting the appellant. We find no merit

in this appeal and the same is accordingly dismissed.

36. Appellant is already on bail. He is ordered to be