Smt. Ram Kaur vs The State (Govt. Of Nct Of Delhi)
2011 Latest Caselaw 1927 Del

*                    HIGH COURT OF DELHI: NEW DELHI

                                  Judgment delivered on: 04.04.2011

+              CRL.A. 347/1997

SMT. RAM KAUR                                                        ......Appellant

                                         Versus

THE STATE (GOVT. OF NCT OF DELHI)                                ......Respondent

                                         AND

+              CRL.A. 449/1997

SUNIL DUTT SHARMA                                                    ......Appellant

                                         Versus

THE STATE (GOVT. OF NCT OF DELHI)                                ......Respondent

Advocates who appeared in this case :-

For the Appellant:                       Ms Charu Verma, Amicus Curiae in Crl.A. No.
                                         347/1997 & Mr Anurag Jain, Amicus Curiae in Crl.
                                         A. No. 449/1997.

For the Respondent:                      Ms Richa Kapoor, Addl. Standing Counsel.


Coram:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE MANMOHAN SINGH

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

2. To be referred to Reporter or not?                                               Yes

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

BADAR DURREZ AHMED, J. (ORAL)

1. These appeals are directed against the judgment dated

30.05.1997 delivered by the learned Additional Sessions Judge, Delhi in

Sessions Case No. 01/1993 whereby the appellants have been convicted

for offences under Section 304B/498A IPC. The appeals are also

directed against the order on sentence dated 02.07.1997.

2. The appellant Sunil Dutt Sharma was charged of having

committed the murder of his wife Smt. Siksha Devi under Section 302

IPC by hitting a „Musli‟ (Pestle) on her head and thereafter strangulating

her. A separate charge was framed against both the appellants Sunit Dutt

Sharma and his mother Smt. Ram Kaur, first; under Section 498A IPC

and, secondly, under Section 304B IPC. A further charge was framed

against the appellant Smt. Ram Kaur under Section 201 IPC for allegedly

causing the evidence of commission of murder to disappear by washing

the blood from the floor of the kitchen. The learned Additional Sessions

Judge gave the benefit of doubt to the appellant Sunil Dutt Sharma, in so

far as the offence under Section 302 IPC was concerned. With regard to

the offences under Section 498A and 304B IPC, the learned Additional

Sessions Judge, as aforesaid, convicted both the appellants. The

appellant Smt. Ram Kaur was acquitted of the charge under Section 201.

By virtue of the order on sentence dated 02.07.1997, Smt. Ram Kaur was

sentenced to undergo rigorous imprisonment for three years under Section

498A IPC and she was also fined a sum of Rs. 500 and in default of

payment of the fine she was further required to undergo rigorous

imprisonment for one month. The appellant Ram Kaur was also

sentenced to rigorous imprisonment for seven years for the offence under

Section 304B IPC. She was also fined a sum of Rs. 5,000/- and in default

of payment of fine she was required to further undergo rigorous

imprisonment for one month. Both the sentences were to run

concurrently. In so far as the appellant Sunil Dutt Sharma is concerned,

he was sentenced to undergo rigorous imprisonment for three years under

Section 498A IPC and was also fined a sum of Rs. 500/- and in default

whereof he was to further undergo rigorous imprisonment for one month.

With regard to the offence under Section 304B IPC, the appellant Sunil

Dutt was sentenced to imprisonment for life and in addition he was also

fined a sum of Rs. 500/-. In default of the payment of fine he was to

further undergo rigorous imprisonment for one month. Both the sentences

under Section 498A and 304B IPC were to run concurrently. The benefit

of set off under Section 428 Cr.P.C. was also given to both the convicts.

3. The case of the prosecution is that on 17.05.1992 at about

6.40 a.m., D.D. Entry No. 29 (Ex. PW-14/A) was recorded at Police Post

Tikri falling under Police Station Nangloi in which information was

received that one woman had "hanged herself" in the house of pandit in

Village Tikri. The inquiry was entrusted to ASI R.K. Tiwari (PW-17)

who along with Constable Hawa Singh (PW-5) went to the house of Sunil

Dutt in Village Tikri. There, the dead body of Siksha wife of the

appellant Sunil Dutt Sharma was found lying on the floor on the left side

of the „Deori‟ (entrance) of the house. The body was covered with a red

cloth. One piece of cloth was found hanging from the beam near the

entrance. A pair of nylon chappals was also found lying towards the feet

of the body. Head injuries were noticed on the body and there were

bluish marks on the neck as well as on the arms and on the abdomen.

Bristles of rope were also visible on the neck of the deceased. One

bamboo „arthi‟ (bier ) was also found lying there.

4. No eye-witness was available at the spot. However, since the

case did not appear to be one of suicide and some foul play was

suspected, a case under Section 302/201 IPC was registered. Thereafter,

investigation took place, inasmuch as, the Crime Team inspected the spot

and the Investigating Officer recorded the statements of the persons

concerned.

5. The key witnesses in this case are PW-1, Sri Pal who is the

father of the deceased, PW-2, Smt. Dhanno who is the grandmother of the

deceased and PW-3, Tek Chand who is the grandfather of the deceased.

Apart from these, there is also the testimony of PW-17, ASI R.K. Tiwari,

who was the first police official to reach the spot after the recording of

the said D.D. No. 29 (Ex. PW-14/A).

6. It is the case of the learned counsel for the appellants that

although the trial court has acquitted the appellant Sunil Dutt Sharma of

the charge under Section 302 IPC, and the appellant Smt. Ram Kaur of

the charge under Section 201 IPC, the trial court has erred in convicting

both of them under Section 498A/304B IPC. The learned counsel for the

appellant submitted that the ingredients of Section 304B had not been

made out. They submitted that the nexus between the alleged cruelty or

harassment at the hands of the husband of the deceased and the mother-

in-law of the deceased, on the one hand, with the alleged demand for

dowry on the other, has not been established by the prosecution. It was

also the case of the appellants that there is no evidence that there was any

cruelty or harassment "soon before" the death of Siksha. It was also

submitted on behalf of the appellants that the presumption as to dowry

death under Section 113B of the Indian Evidence Act, 1872 could not be

raised, inasmuch as, the initial circumstances which permit the raising of

such a presumption were not satisfied in the present case. This is so

because the presumption can be raised only if it has been established that

soon before her death, Siksha had been subjected to cruelty or harassment

for, or in connection with, any demand for dowry. It is only then that the

Court could presume that the persons who acted cruelly or who harassed

the deceased had caused the dowry death.

7. It was also contended on behalf of the appellants that apart

from the father and grandparents of the deceased Siksha, there was no

independent witness who had been presented by the prosecution by way

of corroboration and, therefore, it was unsafe for the Court to rely solely

on the testimonies of the said witness who were closely related to the

deceased and who, according to the learned counsel for the appellants,

were interested in seeing that the in-laws of the deceased daughter were

convicted.

8. The learned counsel for the appellants also submitted that

there were inconsistencies and differences in the narration of events as

per the three witnesses namely, PW-1, PW-2 and PW-3, in so far as the

timing and quantum of demands for dowry were concerned. It was also

suggested that there was no demand for dowry what to speak of any

cruelty or harassment soon before the death of Siksha. In the alternative,

it was suggested by the learned counsel appearing for the appellant Smt.

Ram Kaur that at the highest her case would fall under Section 498A IPC

as initially in the statements of the said PWs recorded before the SDM

Smt. Ram Kaur has not been specifically named.

9. The learned counsel for the State fully supported the trial court

decision both on the ground of conviction as well as on sentence. She

submitted that the ingredients of Section 113B have been clearly met and,

therefore, the presumption could easily be raised in so far as the

commission of the dowry death is concerned. She further submitted that

as the presumption has not been rebutted by the appellants, the case of

dowry death under Section 304B stands established. That being the case,

Section 498A also stands established and there is no escape for the

appellants from this reality.

10. The learned counsel for the State further submitted that this

was a clear case which fell under Section 304B IPC. She referred to the

above-mentioned D.D. No. 29 which was of 17.05.1992 in which she

stated that information had been received that one woman had "hanged

herself". It is not known as to who gave this information but according to

the learned counsel for the State it was perhaps given by one of the family

members of the accused with the object of creating an impression that it

was a case of suicide. In fact, the learned counsel for the appellant drew

our attention to question No. 86 and the answer to that question in the

statement made by Smt. Ram Kaur under Section 313 Cr.P.C. where she

has stated as under:

"Q86. Why is this case against you? Ans: It is a false case. I have been falsely implicated. My daughter-in-law Sikshaw deceased wants to reside separately from me to which I did not agree and she of her own hanged herself and I have been falsely implicated."

Therefore, it was the defence case that Siksha had committed suicide and

this is perhaps what is reflected in D.D. No. 29 (Ex. PW-14/A).

11. Ms. Richa Kapoor arguing for the State further drew our

attention to the ruqqa which clearly stated that when ASI R.K. Tiwari

visited the spot he found the dead body lying on the ground and,

importantly, he noticed deep wounds in three places on the head apart

from other bruises on the neck, arms and abdomen. He also noticed that

some of the marks were consistent with resistance being shown by

Siksha. She also drew our attention to the death report and the testimony

of PW-17, R.K. Tiwari. Consequently, she submitted that no interference

with the impugned judgment and order on sentence was called for and

requested this Court to dismiss the appeals.

12. After having considered the arguments advanced by the

counsel for the parties and having gone through the testimonies and

evidence on record, we can say straightway that we are in agreement with

the conclusion arrived at by the learned trial court and no interference

with the impugned judgment or order on sentence is called for. Section

113B of the Indian Evidence Act, 1872 reads as under:-

"113B. 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."

The Section clearly states that when the question is whether a person has

committed dowry death of a woman then the Court shall presume that

such person had caused the dowry death of the woman if it is shown that

soon before her death such woman had been subjected by such person to

cruelty or harassment for, in or in connection with, any demand for

dowry. So, first of all, we have to examine as to whether there has been

any demand for dowry. Secondly, we have to ascertain as to whether the

deceased woman was subjected to cruelty or harassment by the appellants

in connection with demand for dowry.

13. In this regard, we have examined the testimonies of PW-1, Sri

Pal, PW-2, Smt. Dhanno and PW-3, Tek Chand in detail. There are some

minor irrelevant inconsistencies with regard to the exact point of time

when the demands for dowry were made and by whom. But all of them

have been consistent that after about a little over a year of the marriage of

the appellant Sunil Dutt Sharma with Siksha a demand of about Rs.

15,000-20,000/- was made and that demand was satisfied by PW-1 by

making the payment to the accused by giving a sum of Rs. 15,000/-. It is

also clear from the testimonies of each of these three witnesses that a

further demand of about Rs. 10,000/- was made after about one and a half

years of marriage and that the demand was met by paying a sum of Rs.

10,000/- to the accused. This amount was collected by the said PWs after

they sold some of their cattle. It has also come in the evidence of these

three witnesses that about 1½ to 2 months prior to the death of Siksha she

had been turned out of the house by her in-laws, once again, in

connection with a demand for dowry. At that point of time, it is alleged

that she had also been beaten and she bore injury marks. This incident is

said to be of April, 1992. The matter is said to have been reported to the

Police although no formal complaint was written or registered, inasmuch

as the matter had been sorted out after apologies had been tendered. We

may, at this juncture, also note the testimony of PW-17 which

corroborates the version of these three witnesses. PW-17 has stated in

clear terms that in April, 1992 the deceased Siksha along with her father

had come to Police Post Tikri and the father of the deceased had

complained that his son-in-law was demanding money from him and that

he had already given some amount to him. PW-17 further stated that the

deceased Siksha‟s father also complained that his son-in-law used to

harass and beat Siksha. When PW-17, ASI R.K. Tiwari asked PW-1 to

give his complaint in writing or to make a statement on record, he was not

willing to do so and stated that he wanted to settle the matter amicably

and requested PW-17 to call the in-laws of Siksha, which he did. He

called the appellant Sunil Dutt Sharma who came to the Police Post along

with some relatives. Discussion took place between the two parties and

an oral compromise was arrived at. Thus, it is in these circumstances that

PW-1 did not lodge any report in writing.

14. From the testimony of PW-17, the version of the witnesses

PW-1, PW-2 and PW-3 of the incident of April, 1992 stands

corroborated. We also find that PW-17 has not been cross-examined on

this aspect at all.

15. From this it is clear that the prosecution has been able to

establish that there were clear demands for dowry and they had also been

met from time to time. However, the demands did not stop. Siksha had

been turned out of the house in April, 1992 and it is only after

intervention of the Police (PW-17 R.K. Tewari) that an oral compromise

was arrived at and Siksha returned to her husband‟s house.

16. Now, the question that arises is as to whether Siksha was

subjected to cruelty or harassment at the hands of the appellants? This

also clearly stands established by the fact that she was repeatedly

subjected to demands for dowry and she was also turned out and beaten

up in April, 1992 which is just a month or a month and a half prior to her

demise on 17.05.1992. Another instance of cruelty soon before her death

was the fact that she was injured and bore those injury marks at the time

her body was found. The injuries were on her head, arms and abdomen

apart from the ligature marks on the neck which ultimately resulted in her

death through asphyxiation. The shirt of the appellant Sunil Dutt Sharma

which was recovered at his instance also contained blood stains which

had „AB‟ group which is the same group as that of the deceased. So, all

these circumstances clearly establish that soon before her death Siksha

had been subjected by the appellants to cruelty and harassment in

connection with the demand for dowry. Once this is established, by

virtue of Section 113B of the Indian Evidence Act, 1872 it is mandatory

for the Court to presume that it is the appellants who had caused the

dowry death. This presumption is of course rebuttable but there is

nothing on record which has been produced on the part of the defence to

rebut the same.

17. Now we come to Section 304B IPC. The same reads as

under:-

"304B. Dowery 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.

(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."

18. It is clear that there are several ingredients which need to be

satisfied before Section 304B IPC can be invoked. The first ingredient is

that the death of a woman must be caused by burns or bodily injury or the

death occurs otherwise than under normal circumstances within seven

years of her marriage. It is clear that Siksha died an unnatural death and,

that too, within seven years of her marriage. She died on 17.05.1992

whereas she was married in July, 1990. Thus, this ingredient stands

satisfied. The second ingredient is that soon before her death she was

subjected to cruelty or harassment by her husband or any relative or her

husband. This also stands satisfied as mentioned above in our discussion

in connection with Section 113B of the Indian Evidence Act, 1872. So

also, the next ingredient of cruelty and harassment being in connection

with the demand for dowry. Once these ingredients are satisfied then the

appellants are deemed to have caused the death of Siksha and,

consequently, by virtue of Section 304B (2) they are liable to be punished

with imprisonment for a term which shall not be less than seven years but

which may extend to imprisonment for life.

19. We may also point out that according to the post-mortem

report the time since death has been given to be 36 hours. The post-

mortem examination was done at 10.30 a.m. on 18.05.1992 which would

fix the time of death at about 10.30 p.m. on 16.05.1992. The matter,

however, was reported only on 6.40 a.m. on 17.05.1992. This time gap

of about 8 hours remains unexplained particularly when the only residents

of the house were Siksha, her husband (Sunil Dutt Sharma) and her

mother-in-law Smt. Ram Kaur. The evidence of alibi which was sought

to be set up on behalf of Smt. Ram Kaur by producing DW-1, is far from

believable. She is said to have been present at a „Satsang' at DW-1‟s

house from 7.30 p.m. onwards as per the testimony of DW-1. In any

event, Smt. Ram Kaur knew of the incident at about 12 O‟Clock

(midnight). Even then the time gap of six and a half hours or so is

unexplained. It is also to be noticed that the 'arthi' (bier) was ready in

the morning and it is, perhaps in all likelihood, that the body would have

been disposed of. Even the appellant Sunil Dutt Sharma states that he

was away from his house and he came to know only at about 2 a.m. about

the hanging when he came back. Even then there is no explanation as to

why they waited till 6:40 am in the morning before informing anyone.

20. Considering the aforesaid facts and circumstances, we are in

complete agreement with the conclusion arrived at by the learned

Additional Sessions Judge in convicting the appellants and in sentencing

them as mentioned above. The appeals are, therefore, dismissed.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J APRIL 04, 2011 dp