Sanjay vs State
2009 Latest Caselaw 3695 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


+                     Crl. A. No. 83/2003

                                     Judgment reserved on: 29.07.2009
%                                    Judgment delivered on: 11.09.2009

Sanjiv                                    ...... Appellant
                           Through: Mr. Naresh Kaushik, Advocate

                      versus

State                           ..... Respondent
                           Through: Mr. Sanjay Lao, APP

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

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

2.      To be referred to Reporter or not?                    Yes

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

KAILASH GAMBHIR, J.

*

1. The present appeal filed under S. 374 CrPC has been directed

against the judgment dated 30/1/2003 passed in Sessions Case

No. 135/1997, whereby the appellant husband of the deceased

was convicted under S. 498A/304B Indian Penal Code, 1860 and

order of sentence dated 30.01.2002 whereby the appellant has

been sentenced to undergo rigorous imprisonment for 3 years

and 7 years, respectively.

2. The factual matrix of the case, as set out in the appeal, is as

follows:

In the afternoon of 18/10/1996 when the appellant was at his

shop, he was informed about the incident of suicide having been

committed by his deceased wife Shobhana. The appellant on

hearing, rushed to his residence and the Doctor PW7 Dr. Jagdish

Chander Pathak was immediately called, who found the

deceased in an unconscious state but was still breathing. The

appellant took her to Khetrapal Hospital, but despite the best

efforts of Dr. Anil Khetrapal, PW 12, the deceased did not

survive. The parents of the deceased were informed of the said

mishap on 18.10.1996 and they arrived on 19.10.1996. The

parents were quite normal in their behavior against the

appellant and his family. But suddenly, after five days their

behavior completely changed towards the appellant and his

family and an FIR bearing no. 655/1996 was lodged on

23/10/1996 at P.S. Dabri on the direction of SDM, Hauz Khas,

Mr. K.K. Dahiya, PW3 and proceedings were initiated pursuant

to the said FIR. Vide judgment dated 30/1/2003, all other

accused/family members of the appellant were acquitted by

giving them benefit of doubt but the appellant was convicted

under Ss. 498-A and 304 Indian Penal Code, 1860 and was

sentenced to RI for 7 years and fine. Aggrieved with the said

judgment and order dated 30/1/2003, the present appeal has

been preferred by the appellant.

3. Mr. Naresh Kaushik counsel for the appellant contended that the

Ld. Additional and District Judge erroneously decided the case

contrary to the evidence on record and the settled legal position.

The counsel submitted that the Ld. Sessions Court did not take

into consideration the unexplained delay in lodging the FIR. The

counsel urged that clearly allegations leveled in the FIR and the

statements given by the PW1 and PW 2 are not only

afterthought but totally unbelievable. The counsel averred that

the Court also erred in not considering that the SI J.P. Singh

deposed that he did not think it proper to register the case

against the accused persons as there was nothing incriminating

against the accused persons till then. The counsel urged that

there are clear contradictions in the statements of PW1 Saroj,

mother of the deceased and the PW 2 Ishwar Singh, father of the

deceased, which was ignored by the trial court. The counsel

contended that the deposition of DW1 Sonjana @ Sojna, sister of

the deceased goes on to show that the exhibits DW1/A, DW1/1

and DW1/2 were written by the deceased Shobhana while infact

as per the prosecution story Ex. DW1/1 and DW1/2 were written

by none else but DW1 Sanjana herself. FSL report raise serious

doubts in this regard and this deliberate falsehood clearly

reflects that the appellant has been falsely implicated. The

counsel urged that it is only the prosecution, who is basing their

case on the notebook as well as the letter allegedly written by

Shobhana but the trial court did not rely on them to convict the

appellant. The counsel submitted that the Ld. Trial court erred

in not considering the deposition of PW7 Dr. Jagdish Chander

Pathak who deposed that he often treated the deceased but she

never complained of physical or mental torture to him. The Trial

Court also did not consider the deposition of Dr. Anil Khetrapal,

PW 12, who deposed that the deceased was in unconscious state

when she was examined by him. The counsel thus urged that all

these efforts made by the appellant to save her would show

that he had never maltreated her. The counsel also submitted

that the letter purported to have been written by the deceased

was not proved to have been written by her as the letter bore the

stamp and pin code being 253606, which do not tally with the

pin code of the place of residence of her parents at Barkata, the

same being 251309. The counsel categorically denied that the

appellant made any demand for dowry either at the time of birth

of his child or even at the time of the marriage. The counsel

pointed out that the Sessions court in its judgment has rejected

the allegation of demand of Rs. 50,000/- by the appellant but still

found credibility in the allegation of demand of dowry without

there being any proof regarding the same. The counsel also

averred that the statement of brother of the deceased,

Sudarshan was recorded under S. 161 Code of Criminal

Procedure, 1973 but he was not examined before the court,

giving a clear impression that there is something suspicious

about the prosecution story. The counsel also submitted that one

of the essential ingredient to prove an offence under S. 304-B

Indian Penal Code, 1860 is that „soon before the death‟ there

was a demand for dowry, which led to the death of the deceased,

i.e. the immediate nexus between the alleged demand and the

death of the deceased was not proved by the prosecution. The

counsel submitted that last demand for dowry was allegedly

made more than three months from the death of the deceased

and the same can in no circumstance be termed as having an

immediate nexus between the alleged demand and the death of

the deceased. The counsel also submitted that the SDM PW3 Mr.

K.K. Dahiya was not present when the parents of the deceased

made the statement and the same is manifest from the cross-

examination of the mother of the deceased. The counsel also

contended that neither the allegations made in the FIR, nor

statements made by the mother and father of the deceased

during inquest proceedings before SDM and also during trial

disclose any offence having been committed by the appellant.

The counsel relied on following judgments in support of his

contentions:

(a)Satvir Singh vs. State of Punjab - (2001) 8 SCC 633;

(b) Sunil Bajaj vs. State of M.P. - (2001) 9 SCC 417;

(c) State of A.P. vs. Raj Gopalasawa & Anr - (2004) 4 SCC

470;

(d) Kaliyaperumal & Anr. vs. State of T.N. - (2004) 9 SCC

157;

(e)Kamesh Panjyar vs. State of Bihar - (2005) 2 SCC 388; and

(f) Harjit Singh vs. State of Punjab - (2006) 1 SCC 463.

4. Per contra, Mr. Sanjay Lao, APP for the State contended that

there was absolutely no delay on the part of the parents of the

deceased in lodging the FIR as the incident took place on

18/10/1996 and then the parents of the deceased were informed,

who came from Uttar Pradesh on 19/10/1996 and since they

were in a state of shock being busy with the cremation ceremony

and other last rites and rituals and therefore could only get the

FIR registered on 23/10/1996 upon directions by SDM, Hauz

Khas. The counsel submitted that the contention of the counsel

for the appellant that there was no demand for dowry and there

was contradiction in the testimony of PW1 mother of the

deceased and PW2 father of the deceased is without any merits

and is belied from the perusal of their statements wherein it has

been clearly mentioned that the appellant demanded Rs.

50,000/- and a Maruti car from the parents of the deceased and

also used to physically and mentally torture her from time to

time. The counsel submitted that in Para 4 of the impugned

judgment the trial court held that Rs. 50,000/- were deposited

in the account of the appellant and were withdrawn on the same

day and the appellant did not bring on record any passbook or

anything to show that the same is false. The counsel pointed out

that the father of the deceased also stated that he told grand-

father of the appellant regarding ill treatment of his daughter on

which the father of the appellant assured that nothing would

happen to his daughter. As regards the issue of letter dated

13/7/1996, purported to have been written by the deceased

wherein she disclosed how she was being harassed by the

appellant and his family tallying with the admitted handwriting

of a notebook, written 5 years prior to the writing of the said

letter dated 13/7/1996, the counsel contended that as per the

observations in the CFSL report by the handwriting expert, the

handwriting of said letter and the notebook tallied at certain

points but also showed difference at some points. The expert

also observed that the possibility of the handwriting pertaining

to two different people cannot be ruled out and it cannot be said

definitely who exactly wrote them, which fact clearly shows that

there is an equal possibility of the same being written by the

deceased. The counsel thus, submitted that the said letter dated

13/7/1996 goes on to show clear nexus between the alleged

demand and the death of the deceased. Coming to the next

contention, the counsel urged that it is for the prosecution to

decide, to whom they want to examine and since in the case of

brother of the deceased, there would have been a repetition of

the statement of the parents of the deceased therefore the

prosecution correctly dropped him. The counsel also submitted

that PW3 SDM, K.K. Dahiya has explained in his testimony that

he was present in the room when the statements of PW1 and 2

were recorded by his clerk on his dictation. The counsel also

took support of Sections 174-176 of the Code of Criminal

Procedure, 1973 and contended that nowhere it is the

requirement of law that the SDM should have recorded the

statement of PW1 and PW2 in his own handwriting. It was

sufficient that SDM was present in the room when the

statements of PW1 and PW2 were recorded on being dictated by

him to his clerk. The counsel also urged that the presumption

arising under S. 113-B Evidence Act against the appellant has

not been rebutted by him, which strengthens the prosecution

case.

5. I have heard learned counsel for the parties and perused the

record.

6. The trial court convicted the appellant under Ss. 498-A and 304-

B Indian Penal Code, 1860, thus it would be worthwhile to

reproduce the relevant provisions, which are as under:

Sections 304-B and 498-A read 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 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.'

The term 'dowry' has been defined in Section 2 of the Dowry Prohibition Act, 1961 (in short 'the Dowry Act') as under:

'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 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 (45 of 1860).'

'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 304-B of the Indian Penal Code (45 of 1860).'

7. A bare reading of S. 498-A Indian Penal Code, 1860 shows that

the term "cruelty", which has been made punishable under

Section 498-A IPC has been defined in the Explanation appended

to the said section, to mean: (i) 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 her life, limb or health

whether mental or physical; or (ii) harassment of the woman

where such harassment is with a view to coerce her or any

person related to her to meet any unlawful demand for any

property or valuable security or is on account of her own failure

or failure of any person related to her to meet such demand.

Therefore, the consequences of "cruelty", which are either likely

to drive a woman to commit suicide or to cause grave injury,

danger to life, limb or health, whether mental or physical of the

woman or the harassment of a woman, where such harassment

is with a view to coercing her or any person related to her to

meet any unlawful demand are required to be established in

order to bring home an offence under Section 498-A IPC.

8. A perusal of the Section 304-B IPC, makes it clear that in order

to attract Section 304-B IPC, the 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) The woman must have been subjected to cruelty or

harassment by her husband or any relative of her husband;

(iv) Such cruelty or harassment must be in connection with the

demand of dowry; and

(v) Such cruelty or harassment must have been meted out to the

woman soon before her death.

9. A legal fiction has been created in the said provision to the

effect that in the event it is established that soon before the

death, the deceased was subjected to cruelty or harassment by

her husband or any of his relatives; for or in connection with any

demand of dowry, such death shall be called "dowry death", and

such husband or relative shall be deemed to have caused her

death.

10. If Section 304-B IPC is read together with Section 113-B of

the Evidence Act, a comprehensive picture emerges that if a

married woman dies in unnatural circumstances at her

matrimonial home within 7 years from her marriage and there

are allegations of cruelty or harassment in connection with

demand of dowry by the husband or relatives of the husband, the

case would squarely come under "dowry death" and there shall

arise a presumption against the husband and the relatives.

11. The presumption under S. 113-B of the Evidence Act shall

be raised only on proof of the following essentials:

(1) The question before the court must be whether the accused

has committed the dowry death of a woman. (This means that

the presumption can be raised only if the accused is being tried

for the offence under Section 304-B IPC.)

(2) The woman was subjected to cruelty or harassment by her

husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with

any demand for dowry.

(4) Such cruelty or harassment was soon before her death.

12. It is for the prosecution to show that there was any cruelty

or harassment for or in connection with the demand of dowry. In

the absence of any evidence in this regard, this deficiency in

evidence proves fatal for the prosecution case. Mere evidence of

cruelty and harassment is not sufficient to bring in application of

Section 304-B IPC. It has to be shown in addition that such

cruelty or harassment was for or in connection with the demand

for dowry. Furthermore, the prosecution is obliged to show that

soon before the occurrence of death there was cruelty or

harassment and only in that case the aforesaid presumption, that

the dowry death took place, would arise.

13. Coming to the rival contentions of the parties as regards

delay in filing FIR, it is settled principle of law that delay in filing

FIR by itself cannot be a ground to doubt the prosecution case

and discard it. The delay in lodging the FIR would put the court

on guard to search if any plausible explanation has been offered

and if offered whether it is satisfactory. In this regard, the Apex

Court in Sahebrao v. State of Maharashtra,(2006) 9 SCC

794, observed as under:

7. At this juncture, we would like to quote the following passage from State of H.P. v. Gian Chand1 wherein this Court observed: (SCC p. 79, para 12)

"12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any [plausible] explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to

satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

14. In the instant case, the parents of the deceased got the

information regarding death of their daughter on 18.10.1996

and thereafter reached at the matrimonial home on 19/10/1996.

Obviously, they must be in an utter state of shock and they

could not have thought of immediate registration of an FIR. The

delay of one day in the above conditions cannot be considered as

fatal to doubt the prosecution case.

15. Now coming to the core issue as to whether offence under

Ss. 498-A and 304-B Indian Penal Code, 1860 is made out or not.

It is not disputed that the deceased had committed a suicide.

Thus, clearly, the first ingredient that „the death of a woman

must have been caused by burns or bodily injury or otherwise

than under normal circumstances‟; is satisfied as the deceased

died unnaturally. The second ingredient that „such death must

have occurred within seven years of the marriage‟ is also

satisfied as admittedly, as the marriage of the deceased and the

accused took place on 11/12/1994 and the deceased died on

18/10/1996.

16. Now what needs to be seen is, whether the other three

ingredients as discussed above, viz. the woman must have been

subjected to cruelty or harassment by her husband or any

relative of her husband; such cruelty or harassment must be in

connection with the demand of dowry; and such cruelty or

harassment must have been meted out to the woman soon before

her death, have been duly proved by the prosecution or not.

17. To see as to whether the prosecution successfully prove the

aforesaid ingredients of the offence under S. 304-B Indian Penal

Code, 1860, it would be worthwhile to refer to the relevant

portions of FIR, statements of PW1 Ms. Saroj, mother of the

deceased and PW2 Mr. Ishwar Singh, father of the deceased

before the court and before the SDM during the inquest

proceedings. The said relevant portions are reproduced as

under:

"FIR

At the time of marriage, demands were made for scooter, fridge, colour T.V., washing machine and furniture etc. and we gave all these things. After the marriage Shobhna told us that her in-laws were harassing her and they also beat her and say that they would have got a Maruti. I went to their house several times and tried to make them understand. They did not do anything in front of me but in my absence they harassed her. Once when I went to their house to bring my daughter, her mother-in-law and father-in-law refused to send the child aged 8 months at that time, along with us, I explained to them and brought the child along with us. Shobhna told us that her in-laws harassed her so I called the father of her father-in-law, Sh. Hari Singh told them about my problems. He assured me that nothing of this sort will happen and I will not allow your daughter to be troubled. On 4/8/1998, Sanjeev Kumar came to take back Shobhna, before that Shobhna had already told her mother that she will not go back to her in-laws house as to send her. First, I also refused to send her but then after explaining to both of them, I sent her saying that I will come to meet her next week and she should not worry. Nearly 6 months earlier Sanjeev had asked for Rs. 50,000/- and I gave him. On 19/10/1996, I learnt around 11 a.m. that Shobhna had been killed. As soon I reached Delhi those people told me that Shobhna had hung herself. I strongly suspect that Shobhna has been killed by her in-laws for dowry.

PW 1 Ms. Saroj w/o Ishwar Singh

In her marriage, I had given dowry such as scooter, fridge, T.V., cooler etc., to her inlaws. This marriage was arranged with the intervention of the Anand s/o Lal Singh who is related to the accused persons. After two days my son Sudershan had brought my daughter Shobnhna to our house and at that time my daughter told us that her in-laws were not happy with the dowry. She also told that a maruti car was being demanded by all the accused persons today present in the court in the dowry. All the accused persons used to taunt her and beat her for bringing insufficient dowry. After about ¾ months from the marriage when my daughter Shobna visited us she told that her husband is demanding Rs.50,000/- more for expanding the shop. However we could not give on that occasion and accused persons kept on harassing my daughter for not bringing Rs.50,000/-. Finally in May 96 we paid this

amount of Rs.50,000/- to our daughter Shobhna for onward transmission to accused Sanjeev. Still my daughter was being taunted by accused Sunita and Manju the Nanad and accused Pheru Singh the father-in-law all today present in the court. Even my daughter was being regularly beaten up by both these Nanads, and accused Sanjeev her husband and accused Surresh Devi her mother-in-law. She was taunted by saying "ki thumhare baap ne kya diya, na maruti diya hei na koye nakad rupeya'. In July 1996 we received a letter from my daughter Shobhna which is Ex. PW 1/A so I had sent my husband to her matrimonial house and brought my daughter Shobhna. On arrival my daughter Shobhna told me that she was regularly being beaten up by all the accused present in the court for demand of more money and a maruti car and the accused persons were even threatening her to kill that is why my husband had brought her back. After about 14-15 days i.e. on 4.8.96 accused Sanjeev today present in the court came to us. Then I discussed this issue with accused Sanjeev but he insisted either we should meet the demand of maruti and money or they should kill my daughter. At that time accused Sanjeev even exhorted that at the most by killing he might suffer custody of six months which he will not care. Somehow on the advise of my husband we sent my daughter back to her matrimonial house alongwith him. Again on the evening of Rakhi in 1996 accused Sanjeev came and demanded Rs.50,000/- but we showed our inability and he threatened again to kill my daughter. After the Rakhi festival he took my daughter back.

XXXX

There was no demand of dowry by the accused persons at the time of marriage of my daughter Shobhna with accused, Sanjeev. All the ceremonies such as engagement etc., were completed soon after the negotiations and in a quick succession of marriage. No demand was raised by the accused persons at the time of the engagement ceremony of my daughter Shobhna with accused Sanjeev. Marriage of Shobhna was performed after fifteen days of engagement

ceremony. During these fifteen days transit period the accused is not ask for any dowry. No demand of dowry was raised by accused Sanjeev when he met Shobhna at Anand's house. My son Sudershan is not doing any service but he is engaged in agriculture till date. About four years back he started a finance business. My son Sudershan got the deposit of many persons but he could not returned the same as the business had to be left in between. No deposit was received from any relation. I do not know how much deposit was received by my son, only he might be know. Verbally I do not know how much deposit was given by a individual person but my son is in the possession of list which is lying at my house and which I can produce. I am fifth class passed. The list of deposits includes the name of Sanjeev, Shobhna and her miner son. Accused Sanjeev had made a demand of Rs.50,000/- from me. On 8th May 1996 at my house in village Barkata and the same was paid by me to Sanjeev on the same day at my house. This sum of Rs.50,000/- was withdrawn from the bank account of my husband on the same day. This fifty thousand rupees was demanded by accused Sanjeev for expension of his shop and the same was paid by me for the happiness of my daughter. I did not demand the repayment of the said sum from the accused Sanjeev. It is wrong to suggest that I had not paid a sum of Rs.50,000/- to accused Sanjeev at my house on 8.5.1996 at my village. First the maruti car was demanded by accused Suresh after the birth of son of Shobhna at the time when I and my husband visited Delhi to see my daughter Shobhna and her newly born son hereafter Maruti car was demanded by accused Sanjeev at my house in village Barkata in the year 1996 but I do not remember the date and month.

PW 2 Ishwar Singh s/o Ram Shanker Singh

It was a descent marriage as per the demand of accused persons because scooter, fridge, T.V., washing machine, furniture, ornaments etc., were given. After some time of the marriage Shobhna started complaining that her inlaws used to

harass and beat her. I can not tell the reason as to what was the cause of harassment and beatings. After about one and half years of marriage I took my daughter with me. At that time my daughter Shobhna told her mother that she would be killed by her inlaws.

XXX

We did not give even a single penny to my son at the time when he started finance business. I came to know about the death of my daughter on 19.10.96 through a newspaper thereafter I rushed to Delhi and went straight to the house of accused person.

18. A perusal of the statements of PW1 and PW2 shows that

evidence led by the prosecution, viz. statements made by PWs 1

and 2 in their examination-in-chief and cross-examination,

bristles with discrepancies and contradictions. On one side both

in her examination-in-chief and in her cross-examination, PW1

stated that there was no demand of dowry by the appellant and

his family at the time of marriage of the deceased and the

appellant and even after the birth of their son but on the other

hand PW2 in his examination-in-chief as well as in the cross-

examination stated that the marriage of the deceased and the

appellant was performed as per the demands of the appellant

and his family and scooter, fridge, colour T.V. etc. was given in

the marriage. PW1 in her cross-examination stated that they

(PW1 and 2) had given Rs. 20,000/- to Sudarshan, brother of the

deceased for starting a business but PW 2 denied it in his cross-

examination and said that he did not give even a single penny to

his son for business. PW 1 in her examination-in-chief stated that

they got information of death of their daughter through their son

on 18/10/1996 at night whereas PW 2 stated in his cross-

examination that he got information regarding death of the

deceased through newspaper on 19/10/1996. PW1 in her

examination-in-chief stated that after two days of her marriage,

when the deceased visited her maternal home, she conveyed to

her that her in-laws were unhappy because of the insufficient

dowry but PW2 in his examination-in-chief stated that after some

time of her marriage his daughter started claiming of beating

and harassment at the hands of her in-laws but he did not know

the reason behind such a behavior. Apart from these statements

there are other glaring contradictions in the statements and

cross-examinations of PW1 and PW2.

19. Furthermore, neither in the FIR nor in the statements and

cross examination of PW1 and PW2 there has been any specific

allegation against the accused as regards dowry demand. The

only thing which has been said regarding the appellant is that he

asked for Rs. 50,000/- for his business from the PW1 and PW2

and the same cannot be said to be in relation to dowry as it does

not fall under the definition of dowry as defined under Section 2

of the Dowry Prohibition Act, 1961 as the said demand is not

made in relation to marriage of the deceased and the appellant.

There has been no allegation against the accused beating the

deceased or making any demands of dowry or otherwise

harassing her.

20. From the above discussion, it is manifest that the

ingredients, viz. the woman must have been subjected to cruelty

or harassment by her husband or any relative of her husband;

and such cruelty or harassment must be in connection with the

demand of dowry; has not been established by the prosecution.

It is no more res integra that the case of the prosecution must

stand or fall on its own legs and the prosecution cannot derive

any strength from the weakness of the defence. The decision in

Sharad Birdhichand Sarda v. State of Maharashtra, (1984)

4 SCC 116 supports this and the relevant para of the same is

reproduced as under:

151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view.

21. From the above discussion, it is manifest that the

prosecution has failed to show that there was any cruelty or

harassment for or in connection with the demand of dowry and

the same proves fatal for the prosecution case as regards

offence under S. 304-B IPC. As regards offence under S. 498-A

Indian Penal Code, 1860 having been committed by the

appellant, again no specific allegation in this regard has been

made in the FIR or statements of PW1 and PW2 in this regard.

Also, the only allegation against the appellant is viz-a-viz demand

of Rs.50,000/- for business of the appellant and the said demand

of the appellant was admittedly met by the parents of the

deceased on 8.5.1996, i.e. much prior to 18.10.1996, the date

when the deceased died, thus it cannot be taken that appellant

committed cruelty against the deceased even after getting

Rs.50,000/-. Therefore, the prosecution failed to prove the

ingredients as against the appellant under S. 498-A Indian Penal

Code, 1860.

22. In view of the above discussion, the order of conviction and

sentence dated 30/1/2003 passed by the trial court are set aside

and bail bonds and surety bonds of the appellant stand

discharged.

23. With the aforesaid directions, the present appeal is

allowed.

September 11, 2009                             KAILASH GAMBHIR, J