Prakash Wati & Anr. vs State Of Delhi
2011 Latest Caselaw 1011 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                Crl. A. No. 131/2001
%                                            Reserved on: 03rd December, 2010


                                             Decided on: 21st February, 2011


PRAKASH WATI & ANR.                                         ..... Appellants
                 Through:                 Mr. N.Hariharan, Advocate

                      versus

STATE OF DELHI                                              ..... Respondent
                               Through:   Mr. Pawan Bahl, APP with ASI Jagat
                                          Singh, PS Lahori Gate.


Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                           Not necessary

2. To be referred to Reporter or not?                        Yes

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

MUKTA GUPTA, J.

1. On 31st May, 1990 an information was received at PS Civil Lines vide

DD No.11A that one Smt. Varsha Gupta, wife of Ravi Gupta was admitted in

Tirath Ram Hospital after consuming poison. On the Investigating Officer SI

R.R. Khatana reaching the hospital, he collected the MLC of Varsha Gupta

and found that she was declared dead.

2. The deceased was married to Ravi Gupta, the Appellant No. 2 on 1st

November, 1987. The SDM who inspected the scene of the crime and the

dead body found that she died under suspicious circumstances after

consuming some poisonous substance. On the basis of the typed statement of

Usha Devi, the mother of the deceased, the SDM directed that FIR be

registered. Smt. Usha Devi PW1, alleged that the in-laws of the deceased

Varsha Gupta sent a message through their landlord who was a friend of the

father of the deceased, that they wanted `5 lakhs to be spent in the wedding of

the Appellant No. 2, however, they were ready to consider the proposal of

Varsha as their daughter-in-law for a lesser amount, since Varsha was

beautiful. Moreover, they knew that the girl's side always spends more than

what they state, so they were hopeful of getting more than Rupees Four Lakhs

in the marriage of their son with Varsha. Within 3-4 days of the marriage, the

mother-in-law of the deceased, Smt. Prakash Wati started taunting her

daughter-in-law that she had brought insufficient dowry and that she had

expected a diamond set but her mother has given only one gold set. Though

initially Varsha used to come regularly to her parental home, however, later

on Varsha was sent to her parents only on important family occasions and she

was threatened that in case she would go to her parents' house, she would not

be allowed to enter their house. Varsha would call her only when she was

alone and not in the presence of her in-laws. The Appellant Ravi Kumar

complained about the quality of goods given in marriage. She was taunted and

beaten by her husband frequently. After the birth of Varsha's daughter Chitra,

the in-laws of Varsha used to taunt her to bring more money so that the girl

could be educated abroad. They also demanded things for her Mundan to be

held on the 30th May, 1990. Varsha called up two days prior to her death and

told them to do whatever best they could do for the Mundan of the girl. On

the statement of Usha Devi, a case FIR No. 146/1990 under Sections

304B/498A IPC was registered and pursuant to the investigation, a charge

sheet was filed. The Appellants were charged for offences punishable under

Section 304B/498A IPC. Raghubir Singh, the father of Appellant No. 2,

expired before the framing of charge. Smt. Prakash Wati and Ravi Kumar

were convicted for offences punishable under Section 306 IPC and Section

498A IPC and awarded sentence of rigorous imprisonment for a period of

seven years and a fine of `25,000/- and in default of payment of fine to further

undergo simple imprisonment for further six months for offence under Section

306 IPC and rigorous imprisonment for a period of two years with a fine of

`25,000/- and in default thereto to further undergo simple imprisonment for

six months for offence under Section 498A IPC. The fine imposed on the

Appellants has been paid. This judgment of conviction dated 6th February,

2001 and order of sentence dated 17th February, 2001 are impugned in the

present appeal.

3. When the appeal came up for hearing, learned counsel for the

Appellants pointed out that the Appellant No. 1 Prakash Wati expired on 26th

June, 2005 which fact was verified by the State and thus, the appeal qua

Appellant No. 1 stood abated. Thus, in the present appeal the only Appellant

before this Court is Ravi Kumar, the husband of the deceased.

4. Learned counsel for the Appellant contends that the entire prosecution

case hinges on the testimony of three witnesses; PW1 Usha Devi the step

mother of the deceased, PW8 Shiv Kumar, the father of the deceased and

PW9 Kishore Kumar an employee of PW8. As against this, the Appellant has

examined five defence witnesses including himself and the testimony of the

defence witnesses has gone unrebutted. It is the grievance of learned counsel

for the Appellant that the learned Trial Court has not even considered the

testimony of the defence witnesses. Reliance is placed on State of Haryana

vs. Ram Singh, 2002 (2) SCC 426 to contend that the defence witnesses are

also entitled to the same treatment and they are also equally trustworthy as the

prosecution witnesses. The defence of the Appellant is that the Appellant's

family even prior to the marriage had purchased premises in the name of Smt.

Varsha Gupta, the deceased and the entire money for the same was given by

his family. Besides this property, his father and mother had given gifts

amounting to `20,000/-, `10,000/- etc. on a number of occasions which were

duly deposited in her bank account and also shown in the income tax returns.

He also stated that even at the time of birth of their daughter, his mother Smt.

Prakash Wati gave a sum of `20,000/- to his daughter as a gift, besides other

relations and guests who also gave cash amounts as gift and a complete list

thereof was prepared and the cash so collected was deposited in her bank

account and accounted for in the income tax returns. That immediately after

Varsha consumed something, he and his parents took her to Tirath Ram

hospital and even the bill of the hospital was paid by them. He has also

exhibited photographs of the Mundan ceremony and other occasions showing

cordial relations between his family and Smt. Varsha. According to the

Appellant, who appeared as DW5, the step mother of Varsha, Smt. Usha Devi

demanded `10 lakhs and the possession of the property which was in the

name of Varsha for not filing the present case and on their refusal, she

implicated them in this false case.

5. Learned counsel for the Appellant next contends that the mother-in-law

of the Appellant i.e. PW1 was 19 years younger to her husband and was

almost the age of his wife Varsha. Varsha were five brothers and sisters, out

of whom one brother and the mother of Varsha died under mysterious

circumstances and one more brother committed suicide. The other sister of

Varsha was unmarried and there was a history of depression in the family.

6. It is contended that even looking at the prosecution case, the same is

inherently improbable and full of contradictions. The allegations leveled by

PW1 that the elder sister demanded `20,000/- as customary gifts at the time of

Mundan of daughter Chitra is an improvement as the same was not stated in

the detailed typed statement to the SDM on the basis of which the FIR was

registered. PW8 Shiv Kumar, father of the deceased does not say anything

about it and he gives a totally different version that a day prior to the Mundan

of Chitra, Varsha called up and told her mother that the Appellant demanded

`20,000/-. This statement of PW8 is also an improvement as nothing of this

kind was stated in the statement before the SDM. It is stated that there are

three allegations of demand of dowry; firstly, that soon after the marriage the

mother-in-law of the deceased demanded a diamond set; secondly, an Air

Conditioner and thirdly at the time of Mundan ceremony and all the three

allegations are material improvements as no such allegations are levelled in

the complaint to the SDM. Even as per the recovery memo Ex.PX-9, the

jewellery which the deceased was wearing at the time of the death, shows that

she was wearing far more jewellery than what was given to her by her parents

at the time of marriage. The allegation that an Air Conditioner was given is

belied by Ex. PW8/D1 which is a declaration of gift duly signed by PW8

wherein he has stated that he had gifted an old Air Conditioner to his daughter

valuing about `5,000/-, and that the gift was made out of natural love and

affection and without any consideration. PW8 in his statement could not give

any date or time of any specific demand of dowry made to him by the

Appellant. Even the demand of car as alleged is an improvement and has

been made for the first time in the Court. Relying on Hasan Murtza v. State

of Haryana, JT 2002 (1) SC 539, it is contended that if material improvements

are made in the evidence, then the testimony of the witness is unreliable and

no conviction can be based thereon.

7. It is contended by learned counsel for the Appellant that the learned

Trial Court applied a straight jacket formula to convict the Appellant for the

offence punishable under Section 498A IPC and thereafter applying the

presumption under Section 113A Evidence Act, convicted him for offence

punishable under Section 306 IPC. In Ramesh Kumar vs. State of

Chhattisgarh, JT 2001 (8) SC 599, their Lordships held that the expression

used in Section 113A of the Evidence Act is 'may presume' and not 'shall

presume' and this is a rebutable presumption. Thus, for convicting for

offence punishable under Section 306 IPC, it is the duty of the prosecution to

discharge the initial burden of showing that the cruelty meted out to the

woman is the one which drives her to commit suicide. To raise the

presumption, the Court has to consider all the other circumstances of the case.

The conduct of the Appellant in calling the doctor immediately and taking her

to the hospital is not in consonance with that of guilt. Reference is also made

to Girdhar Shankar Tawade vs. State of Maharashtra, 2002 (5) SCC 177 to

contend that in order to bring home a charge under Section 498A IPC, the

willful act or conduct ought to be the proximate cause. The legislative intent

is clear enough to indicate in particular reference to Explanation (b) to Section

498A IPC that there has to be a series of acts in order to constitute harassment

within the meaning of Explanation (b). Even a reprehensible conduct, cannot,

bring home the charge of offence under Section 498A IPC against the

Appellant and it is thus prayed that the Appellant be acquitted of the charges

framed or in the alternative be released on the period of imprisonment

undergone which is around 19 months.

8. Learned APP for the State on the other hand contends that the

prosecution case hinges on the testimony of PW1, PW8, PW9, PW10, PW16

and PW20. The fact that the deceased committed suicide is not disputed. The

willful conduct of the Appellant was such that it abetted the deceased to

commit suicide. The learned Trial Court in para 26 of the judgment has given

its conclusion for convicting the Appellant for the offences committed. The

demand and torture to the deceased has been proved by the testimony of PW1

and PW8, and thus, the conviction of the Appellant for offences punishable

under Section 306 IPC and 498A IPC is justified. There being no merit in the

appeal, the same be dismissed.

9. I have heard learned counsel for the parties and perused the record. The

issue that calls for determination is whether on the facts of the present case,

the deceased was subjected to such a willful conduct which was of a nature as

was likely to drive her to commit suicide, i.e, was there abetment of suicide by

the Appellant. As per the evidence on record, the prosecution in the form of

statement of PW1 Usha Devi and PW8 Shiv Kumar has proved a demand of

dowry in relation to marriage as they were expecting that more than `4 lakhs

would be spent for the marriage.

10. The fact that the Appellant was not satisfied with the dowry and gave

beatings to the deceased two or three times in relation thereto is proved from

the testimony of PW1 corroborated by the testimony of PW8 and PW9. The

learned Trial Court has acquitted Appellants for charge under Section 304B

IPC on the ground that the demands made were customary in nature and thus

it cannot be said that the deceased was harassed in relation to demand of

dowry soon before her death. In the present case, no doubt that the defence

has proved that the deceased was given gifts including gift of property even

prior to marriage and thereafter cash which were duly deposited in her bank

accounts, but does this conduct show that there was no demand of dowry? It

does not reflect that there was no demand of dowry in relation to marriage or

that there was no harassment on account thereof. The demand of dowry and

harassment for non-fulfillment of the same, are not necessarily dependent

upon the financial status of the parties or to the fact that gifts etc. were given

by them to the deceased. There is unimpeachable evidence on record which

unmistakably proves the demands made by the Appellant. There is yet

another fact which is highly unnatural in the present case. Though it is

common that whenever gifts are received, people deposit the same in the bank

accounts to show in the income tax records as gifts but even getting a

declaration of gift of an Air Conditioner purported to be an old one is highly

unnatural and to this extent I find force in the statement of PW1, that in 1988

when the summer season was about to start, the in-laws of Varsha demanded

an Air Conditioner which was given by her parents and to avoid any legal

tangle, the parents of Ravi Kumar asked them to duly execute a gift deed. The

fact of the matter is that this document is relied upon by the defence and it

corroborates the prosecution case that an Air Conditioner was given by the

parents of the deceased. The contention of the learned counsel for the

Appellant that the deceased had a family history of depression has no

relevance without any documentary proof of the deceased suffering from the

said ailment.

11. On 30th May, 1990, admittedly, the mundan ceremony of the daughter

of the Appellant was performed. As per PW1 it was the sister-in-law of the

deceased who called the brother of the deceased and told to send goods worth

`20,000/- for the mundan ceremony otherwise consequences will not be good

for Varsha. She further stated that the deceased had called her two days prior

to her death at about 5:30/5:45 a.m. and asked to make suitable expenditure

for the mundan ceremony. As per PW8 father of the deceased, his wife had

told him that the deceased had called her one day prior to her death and stated

that the accused Ravi, his mother and father were demanding `20,000/- as

dowry at the time of mundan ceremony of her daughter. PW1 to whom

Varsha had spoken two days prior to the mundan ceremony, does not state the

demand of `20,000/- at the instance of the Appellant and his parents. Thus, in

view of the fact that PW1 does not implicate the Appellant, the prosecution

has not been able to prove the role of the Appellant in relation to the alleged

demand at the time of the mundan ceremony of the daughter of the deceased.

12. In the instant case, the acts attributed to the Appellant cannot amount to

instigation under Section 107 IPC. Though, the Appellant had tortured and

given beatings to the deceased, however, there was no proximate link between

death of the deceased and the harassment and beatings caused. Howsoever

reprehensible the conduct of the Appellant may be, the same cannot amount to

instigation under Section 107 IPC. As held above in view of the contradictions

in the statements of PW1 and PW8, it can be safely held that the prosecution

has not been able to prove the role of the Appellant with regard to the alleged

demand at the time of mundan ceremony. The incident witnessed by PW9

Kishore Kumar, an employee of PW8 was a year prior to the death, when the

Appellant's mother was holding hair of the deceased and the Appellant was

beating her. There is no allegation of beating or torture between this incident

and the mundan ceremony, nor is there any allegation of a continuous willful

conduct of such a nature as would drive the deceased to commit suicide.

Thus, in absence of any role attributable to the Appellant in the form of any

overt act or omission proximate to the death because of which the deceased

was instigated to end her life or a continuous harassment to the extent that

drove her to commit suicide, the conviction of the Appellant under Section

306 IPC cannot be sustained.

13. However, the torture, and beatings given by the Appellant to the

deceased and the harassment meted out to her have been proved by the

testimonies of PW1, PW8 and PW9. It has been proved that the conduct of the

Appellant was willful and of such a nature which caused grave injury and

danger to life, limb and the health of the deceased. Hence the conviction of

the Appellant under Sec. 498A IPC is upheld.

14. The Appellant was sentenced to Rigorous Imprisonment for a period of

two years with a fine of `25,000/- for offences punishable under Section 498A

IPC. The Appellant has undergone imprisonment for a period of 19 months

and paid the fine. The Appellant has faced the ordeal of trial and the appeal

for more than 20 years. It would be thus in the interest of justice if the

sentence of imprisonment for offence punishable under Sec. 498A IPC is

reduced to the period already undergone.

15. The appeal is partly allowed. The Appellant Ravi Kumar is acquitted of

the offence punishable under Section 306 IPC. His conviction for offence

punishable under Section 498A IPC is maintained, however the sentence is

reduced to the period of imprisonment already undergone and the fine paid.

The bail bond and the surety bond are discharged.

(MUKTA GUPTA) JUDGE FEBRUARY 21, 2011 vn