Delhi High Court
Brijesh Singh & Another vs State (Nct Of Delhi) on 3 September, 2009
Author: G. S. Sistani
IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. Appeal No.713/2004
Judgment delivered on 3rd, September, 2009
# Brijesh Singh & Another ..... Appellant
Through : Mr.S.K.Sharma and Mr.Dhruv
Kumra, Advocates
Versus
State (NCT of Delhi) .... Respondent
Through : Mr.O.P. Saxena, APP for State
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether reporters of local papers may be allowed to see
the Judgment ? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported in the Digest? Yes
G.S. SISTANI, J.
1. The present appeal has been filed under Section 473 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as, ―Cr.P.C.‖)
against the judgment dated 15th September, 2004 and order on
sentence dated 17th September, 2004 by the appellant No.1, who
is the husband of the deceased, and appellant No.2, who is the
mother-in-law of the deceased. By virtue of the said judgment,
appellant no.1 and 2 were convicted and sentenced to undergo
rigorous imprisonment for three years for the offence under
Section 498A IPC together with fine of Rs.5,000/- each and in
default of the payment of fine, rigorous imprisonment for
another six months. Appellant no.1 was also convicted and
sentenced to undergo fourteen (14) years rigorous imprisonment
and appellant No.2 was convicted to eight (8) years of rigorous
imprisonment for the offence under Section 304 B IPC.
2. The facts of the case, as noticed by the learned Additional
Sessions Judge, are that Brijesh Singh, appellant No.1, married
Shubha on 30th October, 1990. Customary articles forming
dowry were given at the time of marriage. Marriage lasted for
about 5 years during which period the couple was blessed with a
son. The marriage came to an end on 28th October, 1995 when
Shubha committed suicide by hanging herself. The case set up
by the prosecution is that the alleged demands of dowry made
upon the deceased by her husband and her in-laws as well as the
harassment and torture inflicted upon her for non-fulfilment of
the demands had driven Shubha to end her life by hanging
herself by a ceiling fan in her room. FIR was registered under
Section 498A/304B/406 IPC and under Section 6 of the Dowry
Prohibition Act. Charge under Section 498A/34 IPC and Section
304B/34 was framed against the appellants herein.
3. During trial, thirteen (13) witnesses were examined by the
prosecution, eight (8) witnesses were examined by the defence.
Appellant No.1 had also examined himself as a witness.
According to the appellants Shubha committed suicide as she
was tired of her weak state of health and constant illnesses.
4. Counsel for the appellants submits that the judgment passed by
the learned trial court is illegal and contrary to the material on
record as well as the settled principles of law. It is contended
that the learned trial court gravely erred in not appreciating that
there is no cogent and believable evidence available on record to
hold the appellants guilty of the offence under Section 498A or
304 B IPC. It is next contended that the learned trial court failed
to take into consideration the fact that basic requirements of
Section 304 B IPC were not fulfilled herein. The learned trial
court, it is contended, completely lost track of the fact that in
order to convict a person under Section 304 B IPC, it was
mandatory for the prosecution to prove that soon before death,
the deceased was subjected to cruelty or harassment by the
appellants for or in connection with any demand of dowry.
Counsel contends that in the present case even in the charge
sheet there is no allegation regarding any incident about the
harassment of deceased soon before she committed suicide.
Counsel for the appellants submits that PW-2, Om Prakash,
father of the deceased did not utter a single word nor made any
allegation especially against appellant No.2 regarding
harassment for demand of dowry. It is contended that none of
the witnesses i.e PW-2, Om Prakash, father of the deceased; PW-
8, Sumitra, mother; and PW-6, Saraswati, sister of the deceased,
in their statements before the police or before the court have
alleged any incident of harassment of the deceased by the
appellants for and in connection with demand of dowry soon
before the occurrence. Learned counsel for the appellants next
submits that there are material contradictions between the
statements made by the witnesses i.e father, mother and sister
of the deceased. Counsel for the appellants submits that the
trial court has failed to consider that at the time of occurrence,
none of the appellants were present in the house. It is submitted
that the complainants did not lodge any complaint for more than
72 hours after the incident. This delay has been unexplained in
view of the fact that the incident took place on 28 th October,
1995 and the FIR was lodged on 31st October, 1995 when the
statement was made to the SDM.
5. Mr. Sharma, learned counsel for the appellant also submits that
evidence of the prosecution witnesses is not trustworthy and no
credence can be given to the evidence which is inconsistent and
unreliable. It is also contended that the learned trial court
gravely erred in disbelieving the version of the defence
witnesses. Even otherwise, it is contended that the trial court
erred in awarding the sentence of 14 years to appellant No.1 and
8 years to appellant No.2 under Section 304 B IPC and that the
sentence awarded is disproportionate to the allegations made in
the case. It is contended that even as per the statement of PW-
2, father of the deceased, there was no demand of dowry at the
time of marriage, which would show that the conduct of the
appellants was not greedy. Thus, the learned trial court has
failed to apply its judicious mind which has resulted in grave
miscarriage of justice.
6. Per contra, learned counsel for the State submits that the
prosecution has been able to prove its case beyond any shadow
of doubt. He submits that on a careful reading of the testimony
of material witnesses, it has clearly been established that on
account of the persistent demands made by the appellants as
well as her being subjected to cruelty in relation to dowry,
Shubha ended her life by hanging and thus, there is no infirmity
in the judgement and order of conviction. Counsel for State
submits that the deceased had left her matrimonial home on an
earlier occasion as well and stayed with her parents for
approximately three years uptil April, 1995, and the same would
show that she was being harassed throughout her matrimonial
life.
7. In response to the submissions of counsel for the State, counsel
for appellants submits that the deceased had left her
matrimonial home on account of the fact that the appellant No.1,
her husband, was without a job and his financial condition was
not good and that not because she was harassed for dowry. It is
submitted that during this period of separation no report was
lodged with the police, which would go to show that the
deceased had left her matrimonial home not on account of
cruelty, harassment or demand of dowry but on account of the
fact that her husband was without a job and also that she wanted
economic independence. Counsel for the appellant further
contends that admittedly the appellant No.1/husband had met
the deceased in April, 1995 at the school where she was
teaching. There was no discussion with respect to dowry and no
pre-condition was imposed on the appellant No.1, at the time of
her return. The father of the deceased has categorically deposed
that no demand for dowry was made at the time of marriage.
Counsel for the appellants also submits that the appellants have
been falsely implicated in the case. Counsel for the appellant
has also contended that there is no evidence brought on record
to show that cruelty or harassment was meted out to the
deceased for bringing insufficient dowry and in absence thereof,
the ingredients of Section 304 B of the IPC cannot be said to
have been proved. It is also contended that one of the essential
ingredients for convicting a person under Section 304 B IPC is
that the woman ―must have been‖ ―soon before her death
subjected to cruelty or harassment for or in connection with the
demand of dowry‖.
8. Counsel for the appellants also submits that the demand if at all
of Rs.1.00 lac was on account of financial help for business or
domestic help and not as a demand of dowry.
9. Counsel for the appellants has relied upon the decision of
APPASAHEB AND ANOTHER VS. STATE OF MAHARASHTRA
reported at 2007 (9) SCC 721 in support of his arguments that
the demand made from parents of the deceased to meet the
domestic expenses cannot be said to be demand for dowry. He
has also relied upon the decision in BISWAJIT HALDER @
BABU HALDER AND OTHERS VS. STATE OF W.B. reported at
2008 (1) SCC 202 as well as on TARSEM SINGH VS. STATE OF
PUNJAB reported at 2008 (16) SCALE 148 to canvass his
arguments that before convicting a person under Section 304 B
IPC, all the basic mandatory ingredients have to be satisfied. It is
contended that in this case, the deceased was not subjected to
cruelty and harassment much less in connection with demand for
dowry or that any demand in connection with dowry was made
soon before her death. Counsel has also contended that
assuming without admitting that any demand for dowry was
made, there was no live link between the demand of dowry and
the death of Shubha.
10. Before considering the rival contentions of the parties, it would
be useful to scrutinise the evidence of some of the material
witnesses in this case.
11. PW-1, Harish Dhingra, is the neighbour of appellant No.1, Brijesh.
He has deposed that on 28th October, 1995 at about 5.00 p.m.,
he was present in his office when father of the appellant No.1
along with his another son Harish came from outside and
started climbing up the stair case. After some time father of
appellant no.1, Brijesh, called his son Harish up-stairs. Harish
went up-stairs and called this witness (PW-1) also. On reaching
the first floor, he found that the wife of Brijesh (appellant No.1)
was hanging from a ceiling fan with the help of a chunni. PW-1
further deposed that the father and the brother of appellant No.1
tried to lift Shubha and also tried to open the knot while saying
that there was still some life in her and he should also help them
in saving her. However, since the knot could not be opened, the
same was cut with a kitchen knife and thereafter Shubha was
made to lie down on a takht. In the cross-examination, PW-1
denied the suggestion that quarrel used to take place in the
family of the appellants.
12. PW-2, Om Prakash, is the father of the deceased. In his evidence
he stated that his daughter was married to appellant No.1 on 30th
October, 1990. No demand for dowry was made at the time of
marriage. However, dowry articles within his means were given
including colour TV, bed, fridge, jewellery and other articles.
After 3-4 months of the marriage, the appellants started
demanding dowry. PW-2 has further deposed that appellants
demanded a sum of Rs.One lakh from his daughter and that he
paid a sum of Rs.20,000/- to appellant no.1 Brijesh in the year
1991. However, despite paying Rs.20,000/-, appellants continued
to harass his daughter. In the year 1993, Shubha left the
appellants and came to his house and remained there for about
two years. During this period, his daughter had taken up a job in
a school at Gurgaon and used to get a salary of Rs.1200/- per
month. The child born out of the wedlock was also staying with
them. As per PW-2, it is during this period that his daughter had
informed him that the appellants used to harass her. They did
not provide her with proper food and used to throw sarees on her
face and hence his daughter was not willing to return to her
matrimonial home. In the year 1995, appellant No.1 met Shubha
in her school and sought to take her back to the matrimonial
home. Shubha then asked him to talk to her father. The
Principal of her school also advised the same to appellant No.1.
The father of the deceased further deposed that two or three
days later, appellant No.1 came to meet him and assured him
that he would not maltreat his daughter in future and thereafter
he did advise his daughter to go back to her matrimonial home
and stay with the appellants. His daughter was then kept
properly for a month and a half and soon appellant No.1
demanded a sum of Rs.1,50,000/- from him in the month of
Febraury/March, 1995. It was then clarified that demand was
made in May/June, 1995. PW-2 informed appellant No.1 that he
cannot arrange the entire amount but he would arrange upto
Rs.50,000/-. On 21st October, 1995, appellant No.1 again came
to his house in order to take the sum of Rs.1,50,000/- from him.
PW-2 has also deposed that on 22nd October, 1995, his daughter
came to the house in connection with money and also told him
that she was not willing to go back. He had also told his
daughter that he would send Rs.50,000/- within a day or so and
that she should return to her matrimonial home. Shubha
returned to her matrimonial home on 26th October, 1995. On 28th
October, 1995, his daughter was killed as she was not able to get
Rs.50,000/-. This witness (PW-2) has deposed that on 28th
October 1995 at about 4.00 pm, appellant No.1 (Brijesh) and
appellant No.2 (Pushpa Devi) along with Rajinder and Sumitra
had come to their house with his grand son. While appellant
No.1 stayed in their house, appellant Pushpa Devi and other
persons went to meet some relation in Gurgaon. Brijesh had
told him that his daughter was not well. He had asked Brijesh as
to why he had left his daughter at the matrimonial home alone.
The appellant had then gone to make a STD call. After some
time Brijesh informed that Shubha had met with an accident. In
the meanwhile, a telephone call was received at the house of his
friend Jai Singh Verma that Shubha had committed suicide by
hanging. Mr.Verma had informed him of this fact. On reaching
Delhi he saw the dead body of his daughter in the mortuary. His
statement was recorded by the SDM.
13. During cross-examination, PW-2 has stated that he did not meet
any police official or SDM on 28th October, 1995 but met the SDM
on 29th October, 1995 as he was not in a fit state of mind. He did
not give any statement before the SDM on 29th October, 1995
nor did he lodge any complaint before the SDM or any police
official regarding harassment of his daughter by the appellants
for dowry. His statement was recorded by the SDM in his court
on 30th October, 1995 when he gave all the details in his
statement. In the cross-examination PW-2 further stated that he
had not stated before the SDM that money was demanded
directly from him prior to 21st October, 1995 nor had he
specifically stated in his statement that his daughter disclosed to
him that appellants had demanded money. He had, however,
stated before the SDM that appellants had been demanding
money from his daughter but he could not tell the date, month
and place when a sum of Rs.20,000/- was given to appellant
No.1, Brijesh. He also stated that he had not given any specific
incident of harassment of his daughter nor had he given the
manner in which his daughter was harassed or treated with
cruelty and by which appellant. He also did not tell the SDM that
the sum of Rs.20,000/- was demanded but immediately
thereafter he improved his version and stated that Rs.50,000/-
was demanded. In his cross-examination he, however, stated
that he had told the SDM that money was demanded but he did
not tell that dahej was demanded. In his statement Ex.PW2/A at
point ‗Y' SDM had wrongly mentioned dahej which was scored
out by him. He denied the suggestion that Brijesh did not
demand Rs.1,50,000/- on 21st October, 1995. He also denied the
suggestion that his daughter was never harassed or treated with
cruelty by appellants, Brijesh and Pushpa. He denied the
suggestion that between 28th October, 1995 to 30th October,
1995 he had stayed in the house of the appellants and asked for
custody of the child and on refusal he has falsely implicated the
appellant by making a statement against him. He also denied
the suggestion that he forcibly took the child on 4th November,
1995. PW-2 stated that he had deposed before the Police/SDM
that during the period of two years when his daughter stayed
with him, she had disclosed that appellants used to harass her
and did not provide her with proper food and used to throw
sarees on her face. He was confronted with Ex.PW2/A where it
had not been so stated.
14. PW-3, Sh.Jai Singh Verma, is the neighbour of the father of the
deceased, who has stated that Shubha had remained with her
father for about three years after marriage on account of
matrimonial acrimony between her and her husband. However,
he was not aware about the reasons of the matrimonial discord.
On 28th October, 1995, he had received a call at about 4.00 pm
from Pahadi Dhiraj, Delhi that Shubha had committed suicide by
hanging herself. He had then informed Om Prakash about this
incident. This witness was cross-examined by the Public
Prosecutor. He denied the suggestion that Shubha ever disclosed
to him that her husband and her in laws used to harass her and
beat her on account of not providing dowry. He also denied the
suggestion that Shubha had told him that her husband wanted to
start a business and, therefore, told her that she should bring Rs.
One lakh from her parents. He was confronted with the portion of
the statement where he said so before the police. He, however,
deposed that Rs.20,000/- was paid to appellant No.1 in his
presence in the year 1991 but he could not say whether the
same was given to meet the demand of dowry. He was
confronted with the portion of the statement where he had said
so. He also denied that Shubha had telephoned him and
informed that her husband and in-laws were demanding money
and were harassing her and they may even kill her. He was,
however, confronted with the portion of the statement where he
had said so. PW-3 also denied that he had stated that Brijesh
had left Shubha at her parental house in 1993 after beating her.
He was confronted with the portion of the statement where he
had said so. He further deposed that he did not ask Shubha the
reason for her sadness. He further deposed that Shubha did not
tell him that she was mentally and physically harassed by the
appellants or her in laws and that she was not being given proper
food and that her in laws used to threaten that they would kill
her. He further said that he did not state these facts before the
police. He was confronted with the portion of his statement
where it was so recorded. PW-3 denied the suggestion that
appellant Brijesh took Shubha with him after assuring that he
would keep Shubha nicely. He also denied the suggestion that
Shubha had telephoned him again to inform that her husband
and in laws were harassing her and were beating her in the same
manner in which they were treating her earlier. He deposed that
Om Prakash, father of the deceased, did not console her that
things would become normal with the lapse of time. He denied
the suggestion that he had stated the said facts before the
police. He was confronted with the portion of his statement
where it was so recorded. He further deposed that Om Prakash
never informed him that appellant Brijesh and his family
members were demanding a sum of Rs.1,50,000/- and that he
did not assure Om Prakash that he would make efforts to arrange
a sum of Rs.50,000/-. He also deposed that he had not stated
the above facts to the police. He was confronted with the
portion of his statement where it was so recorded. PW-3 denied
the suggestion that he was deposing falsely in order to save the
appellants. He also denied the suggestion that he had been won
over by the appellants.
15. PW-6, Saraswati is the sister of deceased-Shubha and an
important witness in this case. This witness has deposed that on
the date of marriage itself her sister came to know that the
appellant No.1 was unemployed and he had not been earning
any money. As per PW-6, this fact was disclosed to her when her
sister came to the house for fera ceremony. Dowry articles were
also thrown at the deceased by appellant No.1 and appellant
no.2 (mother-in-law of Shubha) had said that sarees were not
according to their choice. Dowry was demanded when her sister
had returned back after the fera ceremony. According to this
witness, the demand was made for a motor cycle, Rs.One lakh
and Colour TV. Shubha was also taunted that articles given in
the marriage were sub-standard. PW,6 deposed that, however,
her mother had told Shubha that huge expenses were incurred in
the marriage, therefore, they would not be in a position to give
any money immediately but assured that demand would be met
in due course of time. As Per PW-6, her sister was tortured.
Appellant No.2 also used to beat her sister which was disclosed
to her by her sister who also showed injuries on her person.
Further, Shubha used to be turned out of her matrimonial house
appellants made to stand outside the house the whole night. In
the month of December, 1991, Rs.20,000/- was paid by the
father of the deceased to the appellants. However, the
harassment continued since only Rs.20,000/- were paid against
the demand of Rs.One lakh. This witness further deposed that
her sister was brought back to her parental house by her brother
on the occasion of Rakhi when she disclosed that she was being
tortured. Appellant No.1 had left Shubha at the parental house
and said that he would not take her back to the matrimonial
home till the time their demand is met. Her sister started living
in Gurgaon and started working in a school alongside pursuing
her higher studies. She started preparing for MBA, besides
M.Com. In April, 1995, appellant No.1 approached her sister in
the school and told her that he wanted to take her back in the
matrimonial home and he would not insist upon fulfilling their
earlier demand of Rs.One lakh. The matter was settled and her
sister went back to the matrimonial home. However, soon
thereafter appellant No.1 started torturing her sister and
demanded Rs.1,50,000/- from her sister. This demand was not
disclosed to her parents but only disclosed to this witness.
Shubha was not allowed to talk to the neighbours and she would
be insulted in front of the visitors. PW-6 deposed that her father
had told Shubha that he would sell the land and give Rs.50,000/-
as demanded. However, in spite of selling the land and making
arrangement for Rs.50,000/- her sister died. She also deposed
that 15 days prior to the death of her sister, Rajinder, the elder
jeeja of appellant No.1, came to the bedroom of Brijesh and
when her sister found Rajinder lying in her bedroom she asked
Brijesh as to why Rajinder had been lying in her bed room, and to
this Brijesh replied that this was nothing and they would blacken
her face in future. The Brother, sister and mother of appellant
No.1 (Brijesh) were present at the roof when Brijesh told this to
his wife. As per PW-6, these facts were told to her by her sister
when she came to Gurgaon 3-4 days prior to the date of incident,
and that PW-6 had not disclosed these facts to her father but
were disclosed to him after the death of her sister. In her cross
examination, she has stated that 3 or 4 days prior to death of her
sister she had told her father that in her last visit Shubha had
informed her that motorcycle and colour TV was being
demanded. She further deposed that demand for dowry was
made on the very next day of her marriage. However, she was
confronted with the statement made before the police where she
had not said so. PW-6 stated that she had stated before the
police that Pushpa Devi (mother-in-law) used to beat her sister.
However, she was confronted with the portion where she had
not said so. During cross-examination this witness could not tell
the date, month or year of torture. She could also not tell as to
which appellant tortured her sister and in what manner and on
which date. She stated that her sister was not allowed to go to
doctor for treatment of injuries on her person. She deposed that
she had told the police that appellant used to turn her sister out
of the house in the night and she used to remain standing
outside the house the whole night. She was confronted with her
statement Ex.PW6/A where it had not been so recorded. She had
stated before the police that a sum of Rs.20,000/- was given by
her father to the appellants in December, 1991. However, she
was confronted with her statement where it was not so recorded.
Similarly, according to this witness, following statements were
made by her before the police:-
(a) Brijesh had told her sister to bring Rs.20,000/-
against demand of Rs.One lakh.
(b) Her brother had gone to bring Shubha on the
occasion of Rakhi.
16. With regard to both these statements, she was confronted with
Ex.PW6/A where it was not so recorded. PW-6 further deposed
that she had not stated before the police that appellant no.1
Brijesh used to demand Rs.1,50,000/- for starting a business.
However, she was confronted with the portion ‗A' to ‗A' of
Ex.PW6/A where it had been so recorded. She was also
confronted with the portion of the statement with respect to the
demand of Rs.1,50,000/- and that her sister asked her not to
disclose the same to the parents. She had also not stated so in
her statement that her sister was confined in the house and was
not allowed to talk to the neighbours. In the cross examination
PW-6 had further deposed that after 3-4 days of the death of her
sister, she had disclosed to her father whatever was told to her
by her sister in her last visit. Before the death of her sister, her
parents came to know about the demand of motor cycle and
colour TV by the appellants from the deceased (Shubha). After
about two months of the marriage, her mother told her sister
(deceased) that they would not be able to meet the demand in
view of the fact that huge expenses were incurred in the
marriage. She deposed that she had stated before the police
that demand was raised on the very next day of marriage. She,
however, was unable to tell the date or month of year when her
sister disclosed to her that the appellants had been demanding
articles and money from her. She had stated before the police
that her mother told her sister that she would not be able to
meet the demand of appellants as already huge amount had
been spent in the marriage. She was confronted with the portion
of her statement where it was not so recorded. She had stated
before the police that Pushpa Devi used to beat her sister. She
was confronted with her statement where it was not so recorded.
However, she could not tell the date, month and year of torture.
Similarly, she was not able to say as to which appellant tortured
her sister in what manner and on which date. Her sister did not
go to the Doctor for treatment of injuries on her person. She,
however, volunteered to say that she did not do so, as had she
gone to the Doctor, her parents would have come to know about
this and further that there was no Doctor in the vicinity of their
house. The sister of the deceased further deposed that she had
stated before the police that appellants used to turn her sister
out of the house in the night and she used to remain standing
outside the house whole night. She was confronted with her
statement Ex.PW6/A where it was not so recorded. She denied
the suggestion that her sister was kept nicely and that no dowry
was demanded at any time. She also denied the suggestion that
her sister was not tortured or harassed on the point of dowry or
otherwise by any of the appellants. She had not stated before
the police that accused Brijesh was demanding Rs.1,50,000/- for
starting his business. She was confronted with portion ‗A' to ‗A'
of her statement where it was not so recorded. PW-6 further
deposed that she had stated before the police that the appellant
used to keep her sister confined to the house and they used to
see that the deceased did not talk to any neighbour. She was
confronted with Ex.PW6/A where it was not so recorded. She
had stated before the police that on one occasion Rajinder slept
in the bed room of her sister and when her sister objected the
said act, appellant Brijesh told that it was nothing and they
would blacken her face in the future. She was confronted with
Ex.PW6/A where it was not so recorded. Instead, it had been
recorded that Rajinder tried to rape the deceased. She told the
police that accused Rajinder told Brijesh to send her sister to his
house at Aligarh. She was confronted with Ex.PW6/A where it
was not so recorded. Information regarding death of her sister
was received by her at about 8.00 pm when she telephoned her
brother. After receiving information about the death of her
sister, she did not come to Delhi. She denied the suggestion that
her sister used to remain unwell and that she was treated in
St.Stephan Hospital. She, however, volunteered that she was
treated in St.Stephan hospital during her pregnancy. She also
denied the suggestion that appellant, Brijesh, took her sister to
various hospitals for proper treatment of her sister. She also
denied the suggestion that after the death of her sister, her
father wanted to take custody of Dushyant (son of the deceased
and Brijesh) and for that purposes several sittings took place
between her parents and the appellants and that since matter
regarding custody of child could not be settled her parents made
a false statement implicating the appellants. She also denied the
suggestion that her father took Dushyant against the wishes of
appellants. PW-6 further stated that the appellant Brijesh had
filed a case in Gurgaon seeking custody of the child. She denied
the suggestion that appellant Brijesh visited their house several
times but they did not allow him to meet the child.
17. Another important witness in this case is PW8, Mrs.Sumitra,
mother of the deceased. She has deposed that usual items of
dowry were given at the time of marriage but the appellants
were not happy with that dowry. As per PW-8, her daughter was
insulted and condemned on the ground that dowry given in the
marriage was inadequate the appellants used to harass her
daughter. Jeeja of appellant No.1 also used to harass her
daughter. Even during pregnancy her daughter was not given
proper care. Sister of the appellant No.1 had given her a
medicine because of which the deceased vomited blood.
However, she did not know the name of the jeeja. As per PW-8,
her daughter was given beating by appellant No.1 and his jeeja.
A sum of Rs.20,000/- was also given within one year of marriage.
Her daughter was tortured by not being given food. The kitchen
was also kept locked so that her daughter may not enter the
kitchen for taking meals. She was reprimanded frequently
saying that she even did not know how to knead the floor and
how to cook. Jeeja of appellant Brijesh was the master mind.
PW-8 further deposed that appellant No.1 had deserted her
daughter and left her at their house saying that only after
meeting his demand of dowry he would take her back. She
further deposed that after 3 years of marriage, appellant no.1
deserted her daughter and left her at the parental house, in view
of the fact that the demand of dowry had not been met.
Subsequently, the deceased (Shubha) was employed in a private
school and simultaneously also did her studies. After some time,
the appellant had met the deceased at the school and begged
pardon and persuaded her to return to the matrimonial home
and assured that she would be kept quite happy. Believing the
assurance of appellant no.1, her daughter returned to the
matrimonial home. However, on her return again the harassment
started after a week. Her daughter was made to stand outside
the room in the night time and in this way she was tortured. The
method of torture was suggested by the Jija of the accused. The
articles which were given customarily were not accepted heartily.
As per PW-8, her daughter had made these complaints when she
had visited her and also told that she was beaten bitterly. It is
also deposed (by PW-8) that appellant no.1 had demanded a sum
of Rs.50,000/-, and subsequently a demand of Rs.1,50,000/- was
made which amount could also not be given, as the same was
not available. However, PW-8 stated that her husband had
thought of arranging Rs.50,000/- by selling some land, so as to
give the same to the appellant no.1. She also deposed that 3-4
days prior to her death, her daughter had told her that Jija of
appellant no.1 shared the bed with her at night and Jija of the
appellant no.1 used to misbehave with her in an indecent
manner. In her cross-examination, this witness has stated that
there was no dowry demand before solemnization of marriage or
at the time of marriage. In her cross-examination, this witness
(PW-8) has further deposed that in her statement before the
Police and the SDM she had stated that appellants were not
happy and satisfied with the dowry given in marriage. She was
confronted with Ex.PW-8/A made before the SDM where it was
not specifically recorded. Neither it was so specifically recorded
in the statement (Ex.PW-8/DA) made under section 161 Cr.P.C.
PW-8 further stated that she had made a statement before the
SDM and the Police that appellants had demanded a colour T.V.
and a motorcycle. She was confronted with Ex.PW-8/A and
Ex.PW-8/DA, where it was not so recorded. She denied the
suggestion that demand of Rs.1,00,000/- was made for business
purposes. She stated in her cross-examination that she had
made a statement before the Police and the SDM that during the
time of pregnancy her daughter was not given proper care by the
appellants and further she was told by her daughter that sister of
the appellant, Brijesh gave such medicines which caused
vomiting of blood. She was confronted with Ex.PW-8/A and
Ex.PW-8/DA, wherein it was not so recorded. Furthermore PW-8
deposed that during investigation she had stated that her
daughter was given beating by appellant, Brijesh and his Jija.
She was confronted with Ex.PW-8/A and Ex.PW-8/DA, where it
was not so recorded. She deposed that she had stated before
the SDM regarding demand of Rs.1,00,000/-. She was confronted
with Ex.PW-8/A and Ex.PW-8/DA, where it was not so recorded.
She had also deposed during her cross-examination that she had
stated before the SDM and the Police that her daughter was
made to stand outside the house and kept for a long period at
night. She was confronted with Ex.PW-8/A and Ex.PW-8/DA,
where it was not so recorded. She was confronted with her
statement made before the SDM as well as before the Police with
regard to demand of Rs.1,50,000/- and with regard to payment of
Rs.50,000/- and also arranging for Rs.50,000/- by selling some
land, which was not so recorded before the SDM or the Police.
She in her cross-examination also stated that she did not lodge
any complaint either with the Police Station or in Women Cell or
anywhere before the death of her daughter regarding alleged
harassment and demand of dowry. She denied the suggestion
that her daughter used to remain ill and was got treated from St.
Stephen Hospital, Delhi.
18. Besides the appellant no. 1, seven witnesses were examined by
the defence.
19. According to DW-1, who is the neighbour, Shubha was suffering
from low blood pressure and also from loose motion and
vomiting. According to this witness she had given Shubha
medicine for low blood pressure as she was also taking the same.
She further deposed that Brijesh, appellant no.1 had also taken
Shubha to the hospital for getting ultrasound done and for
treatment and she had also accompanied Shubha on one or two
occasions. According to this witness, whenever Shubha fell ill
she would become depressed and would prefer for death rather
than to live in illness and her husband had done everything
possible to get her treated for her illness. She has also deposed
that in her presence on 29.10.1995 quarrel had taken place
between appellant no.1 and his in-laws with regard to the
custody of his son, as the parent of Shubha wanted to take the
child with them.
20. DW-2, Vinod Jain, has deposed that he is a tenant of appellant
no.1 and Shubha was ill and sometimes she used to get fits and
doctor used to be called, however, relationship between Brijesh
and his wife were cordial. He also deposed that in-laws of Brijesh
wanted to take their grand-son away, however, Brijesh wanted to
keep his son which resulted in a quarrel between them.
21. DW-3, is a retired employee of Hamdard Wakf Laboratory, who
produced the summoned record of the deceased. As per the
prescription, Shubha had complained of weakness, heart and
mental ailments as well as ladies ailments for which he got
treatment on 23.4.1995. In the cross-examination he had stated
that the medicines prescribed to Shubha were for mental and
heart problem as well as for cold and cough. Medicines for sleep
and weakness were also prescribed to her.
22. DW-4, Dr.Balraj Yadav has deposed that Shubha had come to
him when she was pregnant and stated that she did not wanted a
second issue. She was weak at the time when he met her and he
referred her to St. Stephen Hospital. He is an Ayurvedic
Practitioner and whenever Shubha came to him it was an
emergency condition and he would refer her to Hindu Rao
Hospital or St. Stephen Hospital. In September, 1992 when he
had met her, she had come with a neighbour and was very
depressed.
23. DW-5, Dr.Ashok Kumar Sethi had examined Shubha on five
occasions and according to his testimony, he has treated her for
loss of appetite, hyper acidity and weakness and further Shubha
had regularly complained him about abdominal pain. In the
cross-examination by learned APP, this witness has stated that
he had prescribed medicines for vomiting and hyper acidity,
sposmo proxivorm for pain. Blood pressure was recorded
100/70, which is low. He had also noted blood pressure to be 98
and he had also provided an injection trimegic for stamina.
24. Dr. C.K. Cherian, head of the department, St. Stephen Hospital
was examined as Ex.DW-7. As per his testimony Shubha was
under the treatment of the hospital form 24.5.1991, till
31.8.1991 regarding the pregnancy and the delivery was normal.
Second time Shubha was admitted on 11.9.1992 with regard to
abdominal pain which was diagonozed as pelvic infection.
Shubha had herself given history of termination of pregnancy on
26.8.1992 and according to this witness pelvic infection may
have been the result of complication of abortion which happened
on 22.8.1992, however, there was no case of mental illness. He
also deposed that there is only a remote possibility that there
would be a mark mental disturbance after abortion in the early
stages of pregnancy and it was usual to have some mental
disturbance during pregnancy, but mark mental disturbance are
very remote and may be found if lady who has tendency of pre-
disposition or tendency to mental disease prior to the pregnancy.
25. DW-8 has deposed that at the time of marriage, he had a house
at Delhi and he was receiving rent of Rs.3500/- per month
besides family owned land of 25 bighas at Muradabad and after
meeting all the expenses, Rs.45,000/- was the saving every year.
House at Gurgaon was sold by him in the year 1997 and a son
was born to them in the year 1991. The second pregnancy had
to be aborted on account of her weak health and for infection
caused due to abortion she remained in hospital for five days for
which he had met all the expenses. However, as her health
deteriorated and her blood pressure remained low and she
frequently suffered from Dyrrohea and vomiting, his father-in-law
took Shubha to Gurgaon to look after her and their son was
admitted in Blue Bells School and he paid the expenses for his
son during this period. According to him it is only the dispute
with regard to custody of the minor son which led to filing of the
FIR by the in-laws on the next date.
26. In the present case both the appellants (husband and mother-in-
law of the deceased) have been convicted by the trial Court
under Section 498-A as well section 304-B, IPC. While section
498-A, IPC deals with cruelty subjected on a woman by her
husband or a relative; section 304-B IPC along with 113-B,
Evidence Act deals with dowry death and presumption as to
dowry death.
27. Section 498-A of the IPC reads as under:
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.
Section 304-B, reads as follows:
―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 purposes of this sub-section,
‗dowry' shall have the 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.
Section 113-B of the Indian Evidence Act 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 had been subjected by such person
to cruelty or harassment for, or in connection with, any
demand for dowry, the court shall presume that such
person had caused the dowry death.
Explanation.--For the purpose of this section, ‗dowry
death' shall have the same meaning as in Section 304-B
of the Indian Penal Code (45 of 1860).
28. Furthermore the term ‗dowry' has been defined in Section 2 of
the Dowry Prohibition Act, 1961 as under:
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 mahr in the case of persons
to whom the Muslim personal law (Shariat) applies.
Explanation I.--For the removal of doubts, it is
hereby declared that any presents made at the time of
a marriage to either party to the marriage in the form of
cash, ornaments, clothes or other articles, shall not be
deemed to be dowry within the meaning of this section,
unless they are made as consideration for the marriage
of the said parties.
Explanation II.--The expression ―valuable security‖
has the same meaning as in Section 30 of the Indian
Penal Code
29. The essential ingredients of the offence under section 304 B IPC
are (i) 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 marriage;
(iii) soon before the death, the victim was subjected to cruelty or
harassment by her husband or relative of her husband; (iv) such
cruelty or harassment must be in connection with the demand of
dowry. As and when the aforesaid circumstances are established,
a presumption of dowry death shall be drawn against the
accused under section 113(B) of the Evidence Act. In the case of
Hira Lal v. State (Govt. of NCT), Delhi,(2003) 8 SCC 80, it was
held that:
"9. 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. The prosecution has to
rule out the possibility of a natural or accidental death so
as to bring it within the purview of ―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. The 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 the prosecution. ―Soon before‖ is a
relative term and it would depend upon the circumstances
of each case and no straitjacket 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 not defined. A reference to the expression
―soon before‖ used in Section 114 Illustration (a) of the
Evidence Act is relevant. It lays down that a court may
presume that a man who is in the possession of goods
―soon after the theft, is either the thief or has received the
goods knowing them to be stolen, unless he can account
for their possession‖. The determination of the period
which can come within the term ―soon before‖ is left to be
determined by the courts, depending upon facts and
circumstances of each case. Suffice, however, to indicate
that the expression ―soon before‖ would normally imply
that the interval should not be much between the cruelty
or harassment concerned and the death in question. There
must be existence of a proximate and live link between the
effect of cruelty based on dowry demand and the death
concerned. If the alleged incident of cruelty is remote in
time and has become stale enough not to disturb the
mental equilibrium of the woman concerned, it would be of
no consequence.‖
30. What would constitute a period soon before the incident would
depend upon the facts of each case. While there is no one single
definition of the expression 'soon before' and neither can there
be a straight jacket formula nor a test with regard to this
expression, Courts have interpreted this expression keeping in
view the peculiar facts of each case. Thus the first question
which arises for consideration before this Court is whether the
appellant no.1, husband of the deceased and appellant no.2,
mother-in-law of the deceased demanded dowry and as to
whether the appellants had subjected the deceased to
harassment in connection with this demand. The second question
which arises for consideration of this Court is whether soon
before the death, the deceased had been subjected to such
harassment for demand of dowry.
31. In light of the principles laid down by the Supreme Court and
applying the same to the facts of this case, on a careful reading
of the evidence of the father, mother and sister of the deceased,
I find that the father of the deceased has categorically stated
that no dowry was demanded from them at the time of marriage,
whereas no such deposition has been made either by the sister
and/or mother of the deceased. However, in so far as demand of
dowry, post marriage is concerned, there is consistency in the
statements made by the parents and sister of the deceased.
32. The father of the deceased (PW-2) has stated that he did not give
any statement to the police or the SDM on 28th October, 1995
(the date of death of Shubha) but later he made a statement
before the SDM wherein he had stated that no demand of dowry
was made at the time of marriage. Although some articles like
T.V., Fridge etc. were given. Further as per PW-2, after 3-4
months of the marriage, appellant no.1 demanded Rs.1.0 lac
from his daughter and that Rs.20,000/- were actually paid to
appellant no.1, in the year 1991. I also find that another demand
for Rs.1.50 lac is stated to have been made in the month of May
and June, 1995 by appellant no.1 and it is alleged that appellant
No.1 had come on 21.10.1995 to take the money. What also
emerges from the evidence of the father of the deceased is that
his daughter left the matrimonial home in the year 1993 and
stayed with him for about two years. It is during this period that
he was informed that his daughter was not provided proper food
and they used to throw sarees on her face. However, I find that
appellant no.2 (mother-in-law) has not been specifically named
with regard to demand of dowry or harassment in connection
with dowry. Although, PW-6, sister of the deceased, has deposed
that when her sister (deceased) returned back after the phera
ceremony, appellants not only demanded a motorcycle, colour
T.V. and cash of Rs.1.0 lac, but also taunted her sister that the
articles given in the marriage were of sub-standard quality. PW-6
has also alleged that appellant no.2, mother-in-law used to beat
her sister (deceased), torture her, resulting in injuries on her
person, and even made her to stand outside the house, the
whole night and that the deceased had also shown some injuries
to PW-6. Her statement is also consistent with that of her father
with regard to the return of her sister to the matrimonial home in
April, 1995. This witness (PW-6) has also deposed that all the
issues were settled and the deceased went back to her
matrimonial home. While PW-6 has stated that the demands and
torture of her sister were not disclosed to her parents, she had
informed them about the same 3 or 4 days prior to her death.
During the cross-examination PW-6 was confronted with her
statement made to the police with regard to the fact that the
appellants used to beat her sister and this witness was unable to
tell the date, month or year of torture and as to which appellant
used to torture her sister and in what manner. For the injuries
sustained by her sister, she deposed that she did not go to any
Doctor. PW-6 was also confronted with the her statement to
show that she had not stated before the police that the
appellants used to turn Shubha out of the house in the night and
who used to then remain standing outside the whole night. On an
analysis of the evidence of PW-6 in detail, I find that PW-6 has
given an exaggerated account of the ill-treatment meted out to
the deceased inasmuch as, the statement of the father of the
deceased is completely devoid of any instances with regard to
the beating given to his daughter by her in-laws. Even otherwise
the incident of beating and the fact that deceased was made to
stand outside the house whole night, if believed to be correct,
pertained to the period prior to the returning of the deceased to
her matrimonial home and cannot be stated to have a live link
with the commission of suicide.
33. The mother of the deceased (PW-8), while supporting the
statement made by her daughter (PW-6) with regard to demand
of motorcycle, colour T.V. and cash of Rs.1.0 lacs; has also
supported the fact that Rs.20,000/- were given to appellant no.1;
and that the deceased was made to starve, kitchen was kept
locked and the deceased was taunted that she did not know how
to knead the floor and to cook. A careful reading of the testimony
of the mother of the deceased would also show that it is not her
allegation that appellant no.2 ever demanded any money from
them or any money was ever paid to her. It is further revealed
that even as per her (PW-8), the incidents of beating pertained to
the period prior to 1995. Even otherwise such incidents are not
related to the demand of dowry.
34. I am of the considered view that although there is evidence to
show that appellant no. 2 had harassed the deceased, subjected
her to cruelty and demand for dowry was also made, however, all
the incidents and allegations levelled against her, pertain to a
period prior to her returning back in 1995. The evidence on
record shows that the sarees were thrown at her (deceased) face
in the year 1991 i.e. soon after the marriage. The demand of
colour T.V. and motorcycle as well as Rs.1.0 lac even if assumed
to have been made, the same was made during the time period
of October 1990- March 1993 (i.e. prior to the year 1995, when
the deceased had returned back to the matrimonial home). Thus
there is no live link between the cruelty or harassment meted out
to Shubha by appellant no. 2 and her committing suicide in
October 1995.
35. Another significant factor which is to be taken into consideration
is that in the year 1993 (i.e three years after marriage) the
deceased left her matrimonial home and started residing with
her parents. The deceased subsequently returned to her
matrimonial home in the year 1995. During the entire period of
stay of the deceased in the parental house, neither the deceased
nor any member of her family made any complaint either to the
Police, Women Cell or even to any friend or relations of the
parties. This aspect of the matter has been dealt with by the trial
court observing that the family had hopes that relationship would
be mended and a reunion will take place. Certainly for not
lodging any complaint during the period of separation, nothing
can be read against the deceased and her family members, but it
is rather strange that admittedly, the husband and in-laws were
not in touch with the girl (deceased), and yet the family had
hopes of a reunion. The same is hard to believe.
36. Furthermore, as per the father of the deceased, in 1995,
appellant no.1 had assured him that he would not maltreat her
daughter in future. The trial court has also observed that the
appellant no.1 had assured the father of the deceased that on
the return of Shubha he would not maltreat her. It would thus be
seen that appellant no.2 had no role in approaching the family of
the deceased for her return nor she visited the home of the
parents of the deceased. There is nothing to suggest that there
was any discussion between the mother-in-law, appellant no.2
and the parents of the deceased with regard to return of Shubha.
This factor would also go on to show that appellant No.2, mother-
in-law, had little or no role to play in the life of Shubha and her
husband.
37. Similarly, as per the evidence of the mother of the deceased, it is
the appellant no.1 who had left the daughter back to the parental
house and it is he who took her back and no role at all has been
given to the mother-in-law. Nothing has been stated that any
demand in relation to dowry was made by the mother-in-law
soon before her death. As per the evidence of the mother of the
deceased, it was Brijesh (appellant no. 1), who had demanded
Rs.50,000/- after her daughter had returned to the matrimonial
home in the year 1995 and when Rs.50,000/- was not paid, he
later demanded Rs.1.50 lacs.
38. On a careful analysis of the evidence of all the three prime
witnesses (PW-2, PW-6 and PW-8), I am of the considered view
that the allegations for demand of dowry made against appellant
no.2 (mother-in-law) are completely general in nature and only
relate to the fact that appellant no.2 found sarees to be of sub-
standard quality and that she had thrown the same at the face of
the deceased. Admittedly this incident pertained to the year
1991, i.e. soon after the marriage and cannot be said to have a
direct nexus or live link with the death of the deceased which
took place in October 1995. None of the witnesses have stated
that any amount was demanded by the mother-in-law (appellant
no.2) or any amount was ever paid to her after 1995.
39. However, relying upon the evidence of parents and sister, it is
established that appellant no.2, mother-in-law of the deceased,
subjected the deceased to cruelty and harassment prior to 1995.
Mother-in-law (appellant No.2) showed her dissatisfaction with
the items of dowry; threw the sarees on the face of the
deceased; taunted the deceased that she did not know how to
knead the floor or cook food; and insulted her in front of visitors.
Thus, while finding that no grounds are made out and there is no
evidence on record to show that cruelty or harassment in
connection with demand of dowry was meted out to the
deceased by the mother-in-law (appellant no. 2) soon before her
death, the conviction of appellant no.2 under section 304-B IPC is
set aside. Further, I find that there is no infirmity in the judgment
passed by the learned ASJ, holding appellant no.2 guilty for the
offence punishable under section 498-A IPC.
40. The next question for my consideration is whether appellant no.1
is guilty of the offence under sections 498-A, IPC and 304-B, IPC
or not. According to the defence neither any demand of dowry
was made nor appellant no.1 had any quarrel with his wife
(Shubha) and she died because of her illness. The defence
examined eight witnesses in support of its case. I have carefully
gone through the evidence of all these witnesses. A bare reading
of the evidence of DW-1 would show that Shubha may have been
suffering from low blood pressure. But, on reading of the
evidence, there is nothing to suggest that Shubha was suffering
from depression or her illness was of such a nature which would
drive a person to commit suicide. DW-1 has also not described
the illness of Shubha to be such which would drive a person to
die. The evidence of DW-2, Vinod Jain, who is the tenant of
appellant no.1 also does not come to the rescue of appellant no.1
inasmuch as, his testimony that Shubha used to have fits, is not
supported by any medical evidence.
41. Similarly the evidence of DW-4 (Dr.Balraj Yadav) can be of no
help to the defence, as Dr.Balraj Yadav is only a Ayurvedic
Practitioner and he has deposed that each time the deceased
came to him, he had referred her to Hindu Rao Hospital or St.
Stephen Hospital and on one such occasion when she had come,
she was on the family way, and on the second occasion she had
come after her abortion. PW-5, Dr. Ashok Kumar Sethi in his
evidence has stated that he had treated Shubha for abdominal
pain, loss of appetite, hyper acidity and weakness.
42. The Defence had also examined Dr. C.K. Cherian, Head of the
Department, St. Stephen Hospital, in support of their contention
that Shubha was ill. A careful scrutiny of the evidence of Dr. C.K.
Cherian would show that prior to September, 1992, the deceased
had visited St. Stephen Hospital during her pregnancy; on
26.8.1992 for her abortion; and, thereafter on 11.9.1992 for
pelvic infection, and the same could have been the result of
abortion on 26.8.1992.
43. On the basis of the statements made by witnesses, examined by
the defence, it cannot be said that after 11.9.1992 or either
during the period when deceased stayed with her parents or
after February, 1995 when she returned to her matrimonial
home, the deceased suffered from any illness.
44. Further if the evidence of DW-8, Brijesh, appellant no. 1 is to be
believed that he was looking after his wife and child even during
the period when the deceased was staying with her parents and
as per his evidence, Shubha was suffering from a serious ailment
which would lead to suicidal tendency or her condition was such
that on account of her serious illness she would rather die. He
has failed to lead any evidence in this regard for this crucial
period. Abdominal pain and infection in the year 1992 would not
force her to commit suicide in the year 1995.
45. I find that PW-2, Om Prakash, father of the deceased, has
categorically stated that a demand for Rs. 1 lac was made soon
after (about 3-4 months) the marriage and that Rs.20,000/- were
paid to the appellant No.1 in the year 1991. Father of the
deceased has further deposed that despite Rs.20,000/- having
been paid to appellant no.1, Brijesh, he continued to harass his
daughter (deceased) and this fact was told to her by his
daughter, who eventually, because of the harassment caused to
her by the in-laws, left the matrimonial home in the year 1993.
46. Further as per PW-2, appellant No.1 had met PW-2 in the year
1995 and requested to take Shubha (deceased) back to his home
and assured him that he would not mal-treat his daughter in
future. However, what emerges is that, within a month of taking
Shubha to the matrimonial home, appellant No.1 in the month of
May/June, 1995, demanded Rs. 1.50 lacs, so much so that
appellant No.1 came to the house of PW-2 on 21.10.1995 in order
to take the said sum of Rs. 1.50 lacs. His daughter also came to
his house at Gurgaon on 22nd October, 1995 in connection with
the money and told him that she was not willing to go back. PW-2
had, however, told his daughter that Rs.50,000/- would be paid
within a day or so and thereafter his daughter (deceased)
returned to her matrimonial home on 26th October, 1995.
47. A bare reading of the evidence of PW-2 would show that,
certainly the acceptance of Rs.20,000/- in the year 1991 cannot
be considered as a live link between the demand for dowry and
death of Shubha in 1995, however I find that the father of the
deceased has categorically deposed that in the month of
May/June, 1995, a demand of Rs. 1.5 lacs was made by the
appellant No.1. On 21st October, 1995, i.e. soon before the death
of the deceased, appellant No.1 had visited the house of his
father-in-law, in order to take money.
48. It also emerges from the statement of PW-6, sister of the
deceased, that in the year 1992 her brother had brought the
deceased back on the occasion of Rakhi, when the deceased had
disclosed about the torture being inflicted upon her.
49. I find that the evidence given by PW-2 (father) stands
corroborated by the evidence of PW-8 (mother) as well as PW-6
(sister). Their testimonies are trustworthy, consistent and reliable
with regard to the demand of dowry of Rs.1.0 lac in the year
1991, out of which a sum of Rs.20,000/- was paid in the year
1991, and another demand of Rs.1.50 lacs, which was made in
the month of May/June, 1995. There is also evidence on record
that on 21.10.1995, appellant No.1 had come to the house of his
in-laws in connection with demand of dowry of Rs.1.50 lacs and
on the very next date 22.10.1995, deceased (Shubha) had come
to the house of her father (PW-2) in connection with the money
and she was not willing to go back without the money. It was
only on the assurance of her father, that the deceased returned
to her matrimonial home on 26.10.1995. She later on committed
suicide on 28.10.1995. The factum of visit of appellant no.1 to
the house of his in-laws on 21.10.1995 and the fact of visit of
Shubha to her father's house on 22.10.1995 finds corroboration
from the evidence of both the father and the mother of the
deceased.
50. This illegal demand for dowry of Rs.1.50 lacs in the month of
May/June, 1995, which was repeated on 21.10.1995; the visit of
Shubha to her parents' house on 22.10.1995; and thereafter her
death in unnatural circumstances on 28.10.1995, would show
that there was a direct and live link between her death and the
dowry demand which was made. Hence the above incident
would be squarely covered by the expression „soon before
death'.
51. Having regard to the evidence on record, I have no hesitation in
holding that appellant no.1 (husband of the deceased) demanded
dowry and had subjected the deceased to harassment in
connection with this demand soon before her death. I accordingly
find no infirmity in the judgment of the trial court holding
appellant no. 1 guilty of the offence under section 304-B, IPC and
498-A IPC.
52. The next question which arises is, whether the order on sentence
requires any modification.
53. In the case of State of Punjab Vs. Prem Sagar & Others,
reported at (2008) 7 SCC 550, a two judge Bench of the
Supreme Court, while analyzing the sentencing policy that is to
be followed by Courts, observed that law should adopt the
corrective machinery or deterrence based on the facts of each
case. By deft modulation, sentencing process be stern where it
should be, and tempering with mercy where it warrants to be. It
would be useful to reproduce para 12, as under:
―12. In a recent decision in Shailesh Jasvantbhai V. State
of Gujarat1 this Court opined: (SCC pp.361-62, para 7)
―7. The law regulates social interest, arbitrates
conflicting claims and demands. Security of
persons and property of the people is an essential
function of the State. It could be achieved through
instrumentality of criminal law. Undoubtedly, there
is a cross-cultural conflict where living law must
find answer to the new challenges and the courts
are required to mould the sentencing system to
meet the challenges. The contagion of lawlessness
would undermine social order and lay it in ruins.
Protection of society and stamping out criminal
proclivity must be the object of law which must be
achieved by imposing appropriate sentence.
Therefore, law as a cornerstone of the edifice of
‗order' should meet the challenges confronting the
society. Friedman in his Law in Changing Society
stated that: ‗State of criminal law continues to be -
as it should be - a decisive reflection of social
consciousness of society.' Therefore, in operating
the sentencing system, law should adopt the
corrective machinery or deterrence based on
factual matrix. By deft modulation, sentencing
process be stern where it should, and tempering
with mercy where it warrants to be. The facts and
given circumstances in each case, the nature of the
crime, the manner in which it was planned and
committed, the motive for commission of the crime,
the conduct of the accused, the nature of weapons
used and all other attending circumstances are
relevant facts which would enter into the area of
consideration.‖
Relying upon the decision of this Court in Sevaka Perumal
v. State of T.N.2 this Court furthermore held that it was
the duty of every court to award proper sentence having
regard to the nature of the offence and the manner in
which it was executed or committed, etc.
(2006) 2 SCC 359 : (2006) 1 SCC (Cri) 499.
(1991) 3 SCC 471 : 1991 SCC (Cri) 724.
13. It is interesting to note that this Court in some cases
severely criticised the pattern adopted in the matter of
passing of sentence on the accused. (State of M.P. V.
Bala3 and State of M.P. V. Govind4.)
14. Recently, in State of Karnataka v. Raju5 where the
facts of the case were that the trial court imposed
custodial sentence of seven years after convicting the
respondent for rape of minor under Section 376 of the
Penal Code, 1860; on appeal, the High Court reduced the
sentence of the respondent to three-and-half years. This
Court held that a normal sentence in a case where rape is
committed on a child below 12 years of age, is not less
than 10 years's rigorous imprisonment, though in
exceptional cases ‗for special and adequate reasons'
sentence of less than 10 years' rigorous imprisonment
can also be awarded. It was, thus, opined that socio-
economic status, religion, race, caste or creed of the
accused or the victim are irrelevant considerations in
sentencing policy. To what extent should the Judges have
discretion to reduce the sentence so prescribed under the
statute has remained a vexed question. However, in
India, the view always has been that the punishment must
be proportionate to the crime. Applicability of the said
principle in all situations, however, is open to question.
Judicial discretion must be exercised objectively having
regard to the facts and circumstances of each case.‖
54. As already stated above, I am convinced that appellant no.2,
(mother-in-law of the deceased) had subjected the deceased to
cruelty and harassment. Appellant No.2 had showed her
dissatisfaction with the items of dowry and thrown the sarees on
the face of the deceased. She had also taunted the deceased
that she did not know how to knead the floor or cook food and
further insulted the deceased infront of visitors. However, at the
same time I find that there is no evidence on record to suggest
that cruelty or harassment was meted out to the deceased by
the mother-in-law, in connection with demand of dowry and soon
(2005) 8 SCC 1 : 2005 SCC (Cri) 1947.
(2005) 8 SCC 12 (3) : 2005 SCC (Cri) 1958 (2).
(2007) 11 SCC 490 : 2008 1 SCC (Cri) 787 : (2007) 11 SCALE 114.
before her death. Thus while on the one hand, I find that there is
no infirmity in the judgment passed by the learned ASJ holding
appellant no.2 guilty for the offence punishable under section
498-A IPC; on the other hand there is no evidence on record to
uphold the conviction of appellant no.2 under section 304-B IPC
and thus it is accordingly set aside.
55. Further bearing in mind the observation rendered in the case of
Prem Sagar (supra) wherein it has been held by the Apex Court
that in the peculiar facts and circumstances of a case, if the
Court deems that inappropriate punishment has been meted out
to the convict, the Court may in exercise of its judicial discretion,
reduce the period of sentence, and also taking note of the case
of Mohd. Hoshan Vs. State of A.P. reported at (2002) 7 SCC
414, wherein the Supreme Court had reduced the sentence of
the appellants-accused, under section 498-A, IPC and observed
as under:
―The High Court, in our opinion, was right and justified in
reversing the order of acquittal and convicting and
sentencing the appellants for the offences under Sections
306 and 498-A IPC. We find no good reason to interfere
with the same. However, we think it just and appropriate
to modify the sentence of imprisonment for the period
already undergone and order accordingly having regard
to the fact that both the appellants were in imprisonment
for about two months; the incident took place on 9-3-
1988; Appellant 2 is the mother of Appellant 1 and she is
aged 60 years; both the appellants are on bail and it may
not be appropriate to send them to jail again. The appeal
stands disposed of in the above terms.‖
56. In view of the above two noted decisions and applying them to
the facts of the present case, I find that appellant no. 2 (mother-
in-law of the deceased) is an extremely old lady (aged- 70 years
approx.); the incident of suicide pertains to the year 1995;
appellant no.2 has faced the rigours of trial for fourteen long
years. Accordingly, I reduce the sentence awarded to appellant
no. 2 under section 498-A, IPC to the period already undergone
in jail.
57. In so far as appellant no. 1 (Brijesh, husband of the deceased) is
concerned, applying the settled position of law as per Prem
Sagar (supra), I find that there is no infirmity in the order on
sentence dated 17.09.2004 passed against appellant no. 1,
under section 498-A IPC. However, I find that while imposing the
sentence of fourteen (14) years of RI to the appellant no.1 under
section 304-B IPC, the learned trial court had observed that ―the
responsibility was greater upon Brijesh, who had married Shubha
and who had fathered her child, a most stringent punishment is
called for." So as to enable a deeper understanding into the
quantum of sentence that may be awarded under section 304-B,
IPC, I deem it appropriate to reproduce the case of Bhupinder
Singh Vs. Jarnail Singh reported at (2006) 6 SCC 277,
wherein the Supreme Court while awarding sentence in the case
involving the offence of dowry-death, observed as under:
―..... In the case of Section 304-B the range varies
between 7 years and imprisonment for life. What should
be the adequate punishment in a given case has to be
decided by the court on the basis of the facts and
circumstances involved in the particular case. The stage
of imposing a sentence comes only after recording the
order of conviction of the accused person. ......‖
58. I also deem it appropriate to reproduce relevant portion of the
case of Hem Chand Vs. State of Haryana reported at (1994)
6 SCC 727, wherein it was held that the extreme punishment
should be awarded only in very rare cases. It was held as under :
―7. ......... As mentioned above, Section 304-B IPC only
raises presumption and lays down that minimum
sentence should be seven years but it may extend to
imprisonment for life. Therefore awarding extreme
punishment of imprisonment for life should be in rare
cases and not in every case.
8. Hence, we are of the view that a sentence of 10
years' RI would meet the ends of justice. We, accordingly
while confirming the conviction of the appellant under
Section 304-B IPC, reduce the sentence of imprisonment
for life to 10 years' RI. The other conviction and sentence
passed against the appellant are, however, confirmed. In
the result, the appeal is dismissed subject to the above
modification of sentence.
59. In the case of Sant Raj Vs. State of Haryana reported at
(1998) 8 SCC 605, the Apex Court while upholding the
conviction of the accused (husband) under section 304-B IPC,
reduced the sentence of life imprisonment to 7 years of RI.
Relevant para. of the same reads as under:
―Thus from the fact and circumstances, we are satisfied
that the appellant was rightly convicted under section
304-B IPC. His sentence of life imprisonment imposed
thereunder by the courts below appears to us to be
excessive. We reduce it to the minimum, i.e. seven years'
rigorous imprisonment. ...‖
60. In the case of Vanga Sriniwas Vs. Public Prosecutor, High
Court of A.P. reported at (2007) 10 SCC 219 the Supreme
Court reduced the sentence awarded to the appellant-accused,
to the minimum statutory period of seven (7) years, on the
ground that the appellant had faced the agony of a long trial. It
was observed as under:
"22. Considering the fact that the alleged occurrence
took place on 24-1-1997 and the appellant-accused has
undergone the agony for more than ten years, we are of
the view that a sentence of seven years would meet the
ends of justice. Accordingly, we modify the conviction and
sentence imposed by the High Court; instead the
appellant-accused is convicted under Section 304-B IPC
and impose a sentence of seven years' rigorous
imprisonment.
61. Further, in the case of Baldev Singh Vs. State of Punjab
reported at (2008) 13 SCC 233, the marriage had taken place
on 8-6-1991 and the death took place on 3-9-1992, otherwise
than in normal circumstances and within seven years of the
marriage. The Supreme Court however reduced the sentence
awarded to the appellant and stated, "The conviction as
recorded by the trial court and upheld by the High Court, does
not warrant any interference. However, the custodial sentence
appears to be on the higher side. The same is reduced to the
minimum prescribed i.e. seven years. In the ultimate result, with
the modification of sentence, the appeal stands disposed of."
62. Thus I find that although there is no fixed yardstick to determine
the sentence that is to be awarded, it does not imply that an
excessively harsh punishment be given. The punishment has to
proportionate to the offence and the facts and circumstances
under which the accused has been found to be guilty. In this
case, I find that the deceased had left her matrimonial home in
the year 1993 and had come back to the house of the appellant
in April/May, 1995. As per the evidence on record, there was very
little contact between the husband (appellant no. 1) and the
deceased in the two years that the deceased had been living
with her parents. Thus any demand of dowry prior to 1993,
cannot be said to have a direct and live nexus with the
commission of suicide by the deceased. Between April/May, 1995
and 28.10.1995, the date of commission of suicide there is only
one incident of an alleged demand of dowry. It is not that there
were repeated demands for dowry. The evidence of father of the
deceased shows that no demand of dowry was made by the
appellants at the time of marriage. Even at the time when she
joined her husband back after 2 years of separation, the father of
the deceased does not state that any pre-condition with regard
to dowry was made. Thus as per Hem Chand (supra) and Sant
Raj (supra), I find that the sentence awarded to appellant no.1
for a period of fourteen (14) years of RI under section 304-B, IPC
is excessive and harsh. In case of section 304-B, IPC the
minimum sentence that is to be awarded to the accused is seven
years and the maximum sentence is life imprisonment. The
function of the Court is to weigh the facts and circumstances of
each case and come to an objective finding as to the sentence
that is to be awarded. It is only in rare cases that the extreme
punishment of life imprisonment or a harsh punishment of 14
years of RI should be awarded, and that too be accompanied by
cogent reasons as to why does the Court deem it fit to award
such punishment and not the statutory minimum of seven years.
I also find that appellant no.1 has faced the rigours of trial for a
very long time period, i.e. a well fourteen years from now. I am of
the view, that the interest of justice would be met if the sentence
awarded to appellant no. 1 under section 304-B, IPC is reduced
from fourteen years to a period of 8 years.
63. For the reasons aforestated, I find no infirmity in the impugned
judgment dated 15.9.2004, convicting appellant no.1 under
sections 304-B and 498-A IPC, however, the order on sentence
dated 17.9.2004 is modified, reducing the sentence awarded to
the appellant no.1 under Section 304-B, IPC from 14 years R.I. to
8 years of R.I. The sentence awarded under section 498-A, IPC is
upheld. In so far as appellant no.2 is concerned, I find that no
case is made out against her under section 304-B, IPC and
accordingly, the impugned judgment dated 15.9.2004, convicting
appellant no.2 under sections 304-B, IPC is set aside. However, I
find that the trial court has correctly held appellant no.2 guilty
for the offence under Section 498-A, IPC. Taking into
consideration the reasons discussed above, the order on
sentence dated 17.9.2004 with respect to appellant no.2 under
Section 498-A, IPC, is modified to the period already undergone.
64. Appeal stands disposed of in above terms.
G.S. SISTANI
rd
September 3 , 2009 JUDGE
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