Vijay Pal Singh vs State Of Delhi
2011 Latest Caselaw 3197 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on 08.07.2011

+       CRL.A. 303/1997


VIJAY PAL SINGH                                           ...      Appellant


                                     versus


STATE OF DELHI                                            ...      Respondent

Advocates who appeared in this case:

For the Appellant        : Mr Suman Doval
For the Respondent/State : Mr Sanjay Lao


CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K. JAIN

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 Digest ? Yes

BADAR DURREZ AHMED

1. This appeal is directed against the judgment dated 19.07.1997 and the

order on sentence dated 22.07.1997, which were delivered / passed by the

learned Additional Sessions Judge, Delhi in Sessions Case No.1/1994

arising out of FIR No.86/1990 registered at police station Inder Puri under

Sections 302/498-A/304-B IPC. Although by virtue of the impugned

judgment, the appellant Vijay Pal Singh has been acquitted of the charge

under Section 302 IPC for allegedly having committed the murder of his

wife Smt. Manorma Devi @ Murti Devi, he has been convicted under

Sections 498-A and Section 304-B IPC. Because of the said conviction, the

appellant has been sentenced to two years rigorous imprisonment under

Section 498-A IPC. He has also been fined a sum of Rs 3,000/- and, in

default of payment thereof, he was required to further undergo rigorous

imprisonment for six months. Insofar as the offence under Section 304-B

IPC is concerned, the appellant was sentenced to imprisonment for life. It

was also directed that the period of detention undergone by the accused

during investigation as also the trial, was to be set off against the sentence

awarded to him under Section 498-A IPC and that both the sentences were

to run concurrently.

2. Being aggrieved by the impugned judgment and the impugned order

on sentence, the appellant has preferred the present appeal.

3. The appellant and Smt. Manorma Devi @ Murti Devi were married

on 18.02.1985. Smt. Manorma Devi died in the night intervening 3rd / 4th

June, 1990. Her death was within seven years of her marriage. As per the

post mortem report, she had died due to strangulation.

4. As indicated in the impugned judgment, the prosecution case was that

Shri Niader Singh, father of the deceased, had received information of the

death of his daughter on 04.06.1990 and he had gone to the house of the

accused at B-10-11, J.J. Colony Inder Puri. There, he found his daughter

lying dead on a cot. He went to the police station Inder Puri and lodged a

report. D.D. No.4-A dated 04.06.1990 (Exhibit PW-5/G) was recorded at

the said police station at 12.00 noon on the statement of Shri Niader Singh,

who had suspected that his daughter Manorma had been killed by her in-

laws.

5. The inquiry was entrusted to Sub-Inspector Jagpal Singh, who,

alongwith Constable Mathew George, went to the spot. The Station House

Officer of police station Inder Puri, Mr Madan Mohan Kesar and S.I.

Jagdish Singh as well as Lady Constable Chameli Devi also arrived at the

spot. As the death of Manorma Devi had occurred within seven years of her

marriage, the Sub-Divisional Magistrate (SDM) was also informed.

Inspector Madan Mohan inspected the spot and also got the body and the

place photographed. The SDM Shri H.C. Gaur arrived there at about 5.00

p.m. and he conducted the inquest proceedings during which he recorded the

statements of the accused (Vijay Pal Singh), Vinod Kumar (brother of the

accused), Niader Singh (father of the deceased Manorma Devi) and Smt.

Siso Devi (mother of the deceased). The statement (Exhibit PW-6/D) made

by the appellant Vijay Pal Singh was confessional in nature. Since the same

was deemed to be inadmissible by the trial court, it is not necessary for us to

indicate the contents thereof. The statements made by Niader Singh and

Siso Devi revealed that a demand for Rs 10,000/- had been made by the

appellant after the marriage and that Niader Singh could only give him Rs

5,000/-. A further demand, six months thereafter, was also made for Rs

10,000/- which Niader Singh refused to give and it was alleged that

thereafter the appellant started beating and harassing his wife Smt.

Manorma Devi. It was further revealed in the statements that a year prior to

the occurrence, the appellant had asked him to transfer his plot in his name

and that about 10 days prior to the occurrence, the appellant had left his

wife, Smt. Manoama Devi at her father's house and he had taken her back

about 4-5 days prior to the occurrence. Shri Niader Singh is alleged to have

stated that on this occasion also, his daughter (Smt. Manorma Devi) had told

him that her husband continued to beat and harass her on account of his

demand for dowry.

6. In view of the confessional statement of the appellant and the

statement of Niader Singh, the SDM directed the registration of a case under

Sections 302/304-B/498-A IPC against the appellant. Thereafter, Inspector

Madan Mohan Kesar got the case registered and the FIR was based on the

confessional statement (Exhibit PW-6/D) of the appellant. It must be

pointed out that prior to the SDM recording the alleged confessional

statement (Exhibit PW-6/D) of the appellant, the investigating officer

Madan Mohan Kesar had also interrogated the appellant and had also

recorded his disclosure statement. Pursuant to the disclosure statement, a

recovery of one pair of scissors from the appellant's almirah and a piece of

chunni from the drain of the ground floor of the house was also recovered.

There was a knot on one end of the chunni.

7. PW-8 (Dr L.T. Ramani) conducted the post mortem examination on

the dead body of Smt. Manorma Devi. The following external injuries were

found on the dead body:-

(1) A deep ligature constriction mark present horizontally all around middle part of neck with a faint ligature mark seen on the right side and front of neck 1 cm wide;

        (2)        Bruise 1 cm x 1 cm reddish in colour on the left
                   submandibular area;

        (3)        Bruise 2" x 1" on the lower part of left arm on the lateral
                   surface;

        (4)        Diffused bruising over 4" x 3" area on the outer aspect

of left fore-arm. There was no injury to genitalia; some fluid discharge was present through vagina and vaginal swab was preserved by the Surgeon."

In the opinion of Dr L.T. Ramani, the injuries were ante-mortem in nature

and the injury numbers 1 and 2 were caused during the process of

strangulation and injury numbers 3 and 4 were caused by blunt force

application. It was also his opinion that pressure on the neck structures was

sufficient to cause death in the ordinary course of nature and that the death

had been caused by asphyxia resulting from strangulation. In the opinion of

the said Dr L.T. Ramani, the ligature constriction of the neck was possible

with the chunni which had been recovered in this case. After completion of

investigation, the challan was filed under Sections 302/304-B and 498-A

IPC.

8. After the committal proceedings, the case was sent to the Sessions

Court for trial whereupon the charge under Section 302 IPC and an

alternative charge under Section 304-B IPC were framed against the

appellant. A charge under Section 498-A was also framed against him. As

the appellant pleaded not guilty to the charges, the trial ensued. The

prosecution examined as many as 19 witnesses in support of its case. The

appellant was also examined under Section 313 CrPC and claimed that he

was innocent and that his wife had committed suicide. He, however, did not

lead any evidence in his defence.

9. Before the trial court, the learned counsel for the defence had taken

the plea that the confessional statement of Vijay Pal Singh (Exhibit PW-

6/D) was hit by the provisions of Section 25 of the Indian Evidence Act,

1872 inasmuch as it had been made while the accused was in police

custody. It was also inadmissible because, even though the confessional

statement was made before the SDM, it was not in accordance with Section

164 CrPC inasmuch as, admittedly, the SDM had not explained to the

accused that he was not bound to make a confession and that, if he made a

confession, the same could be used as evidence against him.

10. The learned Additional Sessions Judge, while considering the plea

raised by the defence counsel, noted the decision of the Supreme Court in

the case of Aghnoo Nagesia V. State of Bihar: 1966 Cri. L.J. 100 (SC),

wherein it was held that Section 25 of the Indian Evidence Act, 1872 was

imperative and a confession made to a police officer under no circumstance

was admissible against the accused and that the Section also covered a

confession made when the accused was free and not in police custody as

also the one made before any investigation had begun. With regard to a

confession made to any other person, the Supreme Court observed that such

a confession, if made while in custody of the police officer, would not be

protected by Section 26 of the Indian Evidence Act, 1872 unless it is made

in the immediate presence of a Magistrate.

11. The learned Additional Sessions Judge also referred to the decision of

the Supreme Court in the case of Zwinglee Ariel v. State of Madhya

Pradesh: AIR 1954 SC 15, wherein the Supreme Court observed that, if

confessions are sought to be brought in under Section 26 as confessions

made in the immediate presence of a Magistrate, then also, they would not

be admissible in evidence in case they were not recorded by the Magistrate

in the manner prescribed by Section 164 of CrPC. The learned Additional

Sessions Judge also noted that in terms of Section 164 (2), CrPC, it is

mandatory that the Magistrate, before recording any confession, has to

explain to the person making it, that he is not bound to make a confession

and that, if he does so, it may be used as evidence against him. The learned

Additional Sessions Judge noted that in the present case, admittedly, the

mandatory provision was not complied with by the SDM Shri H.C. Gaur

while recording the confessional statement of the accused. The learned

Additional Sessions Judge has noted that the confessional statement (Exhibit

PW-6/D) of the appellant had been recorded on the dictation of the SDM

during the investigation of the case and while the appellant was in police

custody. Therefore, it was imperative that the SDM ought to have followed

the procedure prescribed under Section 164(2) CrPC. Since he had not done

so, the entire confessional statement (Exhibit PW-6/D) could not be proved

in evidence against the appellant.

12. Thereafter, the learned Additional Sessions Judge noted that

inasmuch as the confessional statement (Exhibit PW-6/D) was inadmissible,

the charge under Section 302 IPC could only be proved by other evidence.

However, PW-2 (Kishan Lal) and PW-10 (Amar Singh), who were

neighbours, had turned hostile and did not support the prosecution case.

Even the proposed witness Dharam Chand, who was also a neighbor, had

been dropped on the ground that he had been won over. Consequently, the

learned Additional Sessions Judge held that the circumstance that the

accused had returned to his house at midnight between 3/4.06.1990 and that

he abused and beat up his wife Manorma had not been established at all.

Ultimately, with regard to the offence punishable under Section 302 IPC,

the learned Additional Sessions Judge concluded that the prosecution had

not been able to prove its case.

13. In the present appeal, we are concerned with the conclusion of the

learned Additional Sessions Judge with regard to the charge under Section

304-B and 498-A. Section 304-B of the Indian Penal Code reads as under:-

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

Explanation.- For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 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."

14. As pointed out in Arun Garg v. State of Punjab and another: 2004

(8) SCC 251, the ingredients necessary for the application of Section 304-B

IPC are:-

1) That the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances;

2) Such death occurs within seven years of her marriage;

3) 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.

15. Insofar as the first ingredient is concerned, there is no dispute that the

death of Smt. Manorma Devi occurred otherwise than under normal

circumstances. The evidence of PW-8 (Dr L.T. Ramani) is conclusive in

this regard inasmuch as he has stated in his examination-in-chief that the

death was due to asphyxia resulting from strangulation. Dr L.T. Ramani has

not been cross-examined, though an opportunity was given. Thus, the first

ingredient that the death of Smt. Manorma Devi occurred otherwise than

under normal circumstances stands established.

16. The second ingredient also stands established inasmuch as it is an

admitted position that Smt. Manorma Devi died within seven years of her

marriage inasmuch as she was married to the appellant on 18.02.1985 and

her death occurred on the night intervening 3/4.06.1990.

17. The only thing that remains to be seen is the third ingredient and, that

is, as to whether soon before her death, Smt. Manorma Devi was subjected

to cruelty or harassment by her husband or any relative of her husband for,

or in connection with, demand for dowry ? In the present case, the only

accused was the husband of the deceased Smt. Manorma Devi. The

question of other relatives of her husband does not arise in the present case.

With regard to cruelty or harassment and demands for dowry, the evidence

on record is of PW-4 Suraj Mal (brother of the deceased), PW-5 Niader

Singh (father of the deceased), PW-17 Smt. Siso Devi (mother of the

deceased) and PW-7 Sunder Lal (uncle of the deceased). PW-5 (Niader

Singh) stated that the deceased Manorma was his daughter and that she got

married to the appellant on 18.02.1985. He deposed that for about one year

from the date of the marriage, the relations between his daughter and the

appellant remained good. However, after one year of the marriage, the

appellant demanded a sum of Rs 10,000/- from PW-5 (Niader Singh). He

gave Rs 5,000/- to the appellant after borrowing the same from someone.

Six months thereafter, the appellant again demanded money from him, but

he refused as it was beyond his financial capacity. Thereafter, the appellant

started ill-treating his daughter Manorma in order to pressurize her to bring

more money from him and he even started beating her.

18. PW-5 Niader Singh further stated that he had a plot in village Amber

Hi which had been allotted to him by the Government. The appellant

wanted that he should transfer that plot in his name, but PW-5 Niader Singh

refused to do so. It was also stated by the said witness that lastly, the

appellant had demanded the transfer of the plot in his name about 15 days

prior to the death of his daughter, but at that time also, he had refused to

transfer the plot. He further stated that about 20 days prior to the death of

his daughter Smt. Manorma, she had visited his house and that on that visit

also, she had complained to him that the appellant used to beat her and had

threatened to kill her. On his enquiring as to why the appellant had

threatened her in this manner, she told him that the appellant demanded

money and wanted that the plot be transferred in his name. He further stated

that it was only about 4-5 days prior to the death of his daughter that the

appellant came to his house and took away his daughter to their matrimonial

home. In the course of cross-examination by the learned defence counsel,

PW-5 (Niader Singh) was confronted with the fact that in his statement

before the SDM, he had not stated that the appellant had demanded a plot of

land from him "15 days prior" to the occurrence. Although this was an

improvement and had also been noticed by the learned Additional Sessions

Judge, the fact remains that PW-5 had, in his statement before the SDM,

indicated that a plot of land had been demanded from him, though the

factum of the demand having been made "15 days prior to the date of

occurrence" was not mentioned. It was also clarified by the said witness

that the facts that the plot was demanded one year prior to the date of

occurrence and the plot was again demanded 15 days prior to the date of

occurrence are both correct. The latter portion had not been mentioned

because at the time the statement was recorded by the SDM, he was nervous

as his daughter had died shortly before.

19. PW -17 Smt. Siso Devi, who is the mother of the deceased (Smt.

Manorma Devi) also stated that after about one year of the marriage of her

daughter, the appellant Vijay Pal Singh started demanding dowry. He first

demanded a sum of Rs 10,000/- for opening a shop and that they had given

him Rs 5,000/-. She stated that after 2-4 months of the payment of the said

amount of Rs 5,000/-, the appellant again demanded a sum of Rs 10,000/-

which they did not pay and, thereafter, the appellant started harassing and

beating her daughter Smt. Manorma Devi. In her cross-examination, she

stated that they had borrowed the sum of Rs 5,000/- from her devar

[brother-in-law (Sunder Lal)] for the purposes of giving the same to the

appellant. She also stated that her daughter Manorma had come to their

house about 8-9 days prior to the occurrence and had stayed with them for

about 4-5 days and that, at that time also, she had complained against the

appellant that he used to harass and beat her.

20. PW-4 Suraj Mal (brother of the deceased Manorma Devi)

corroborated the testimonies of PW-5 (Niader Singh) and PW-17 (Siso

Devi) by stating that after one year of marriage of his sister Manorma, the

appellant had gone to their house and had demanded a sum of Rs 10,000/-.

He further stated that as they could not arrange for the amount of Rs

10,000/-, they gave him only Rs 5,000/- after borrowing the same from

somebody. He further stated that even thereafter, the appellant continued

visiting their house for demanding money, but they could not accede to his

demands as they were not in a position to pay him. Thereafter, the appellant

started harassing his sister Manorma in order to pressurize her to demand

more money from them. He further alleged that the appellant also used to

beat his sister and used to turn her out of the house asking her to bring more

money. His sister used to come to their house and they used to try and make

the appellant understand that he should not demand more money and that he

should not harass his sister.

21. PW-4 Suraj Mal further stated that his father PW-5 (Niader Singh)

had been allotted a plot of land by the Gram Sabha and that the appellant

had demanded that the said plot be transferred to his name. In cross-

examination by the learned defence counsel, PW-4 Suraj Mal denied the

suggestion that the sum of Rs 5,000/-, that was given to the appellant, was

by way of a loan to him. This is an important circumstance inasmuch as it

tantamounts to the admission of the fact that the sum of Rs 5,000/- was, in

fact, paid to the appellant Vijay Pal Singh.

22. PW-7 Sunder Lal is the uncle of the deceased Smt. Manorma Devi

being the younger brother of PW-5 (Niader Singh). He also stated that the

appellant used to demand money and on one occasion, he had given about

Rs 3,000/- after selling his buffalo and that some money was also given by

Niader Singh alongwith the sum of Rs 3,000/- taken from him. He further

stated that the appellant had also demanded a plot of land. PW-7 Sunder Lal

stated that about 4-5 days prior to her death, Manorma Devi had come to the

house of her father and, at that time also, she had complained about the

harassment, beating and the demand for the money by the

accused/appellant.

23. From the survey of the oral evidence given by PW-4 (Suraj Mal),

PW-5 (Niader Singh), PW-7 (Sunder Lal) and PW-17 (Siso Devi), it is

apparent that one year after the marriage between the appellant and Smt.

Manorma Devi, the appellant had made a demand of Rs 10,000/- which was

satisfied in part by making a payment of Rs 5,000/- by PW-5 (Niader

Singh). The said money was raised in part from a contribution of Rs 3,000/-

by PW-7 (Sunder Lal). It has also come in evidence that six months

thereafter, a further demand of Rs 10,000/- was made by the appellant. This

demand was not met inasmuch as PW-5 (Niader Singh) was not in a

position to do so. As a result of this, the appellant started ill-treating his

wife Smt. Manorma Devi by harassing and beating her in connection with

the demand for money. It has also come in evidence that the appellant was

also making the demand that the plot of land, which was in the name of PW-

5 (Niader Singh), be transferred in his name. Demands for money as well as

for transfer of the plot were being made incessantly and continued till the

date of death of Smt. Manorma Devi. The evidence of this is the fact that

when the appellant had left Smt. Manorma Devi at her father's house about

15-20 days prior to her death, she had complained about her husband's mal-

treatment and cruelty even on that occasion on the ground that his demand

for money and transfer of plot was not being met. It is only about 4-5 days

prior to the death of Smt. Manorma Devi that the appellant took her back

from her paternal home and left for their matrimonial home. Shortly

thereafter, the incident of 3/4.06.1990 occurred whereby Smt. Manorma

Devi lost her life. It is, therefore, clear that the prosecution has been able to

show that soon before her death, Smt. Manorma Devi was subjected to

cruelty and or harassment by her husband in connection with the demand for

dowry. Thus, even the third ingredient stands satisfied. The trial court's

conclusion to this effect is, in our view, absolutely correct. The

consequence of this is that the ingredients necessary for the application of

Section 304-B IPC are clearly made out in the present case. The learned

Additional Sessions Judge has also rightly concluded that the ingredients of

Section 498-A IPC also stand established beyond reasonable doubt.

24. In these circumstances, the appeal has no merit and the same is

dismissed. The judgment and / or order on sentence passed by the learned

Additional Sessions Judge stand confirmed.

BADAR DURREZ AHMED, J

V.K. JAIN, J July 08, 2011 dutt