Gulshan @ Mahender Singh vs State
2013 Latest Caselaw 1563 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CRIMINAL APPEAL No. 922/2009

                                              Reserved on: 3rd January, 2013
%                                             Date of Decision: 8th April, 2013


GULSHAN @ MAHENDER SINGH                 ....Appellant
            Through Mr. Amit Kumar, Advocate.

                         Versus

STATE                                                          ...Respondent

                        Through           Ms. Richa Kapoor, APP for the State.

+                       CRIMINAL APPEAL No. 920/2009


BHAGWAN SINGH @ CHHOTEY LAL              ....Appellant
            Through Mr. Amit Kumar, Advocate.

                         Versus

STATE                                                          ...Respondent
                        Through           Ms. Richa Kapoor, APP for the State.


+                       CRIMINAL APPEAL No. 921/2009


KANTA                                                         ....Appellant
                        Through           Mr. Amit Kumar, Advocate.

                         Versus

STATE                                                          ...Respondent
                        Through           Ms. Richa Kapoor, APP for the State.

CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SIDDHARTH MRIDUL


 SANJIV KHANNA, J.:

1. The appellants Gulshan @ Mahender Singh, Bhagwan Singh @

Chote Lal and Kanta, husband, father-in-law and mother-in-law of the

deceased Aarti, by the impugned judgment dated 29th September, 2009

have been convicted under Sections 498A/34, 304B/34 and 201/34 of

the Indian Penal Code, 1860 (IPC). By order of sentence dated 30th

September, 2009, they have been sentenced to life imprisonment under

Section 304B/34 IPC and Rigorous Imprisonment for 02 years and fine

of Rs.2,000/- each for the offence under Section 201 IPC. In default of

payment of fine, they have to undergo Simple Imprisonment of 06

months each. Relying upon, Smt. Shanti and Anr. Vs. State of

Haryana (1991) 1 SCC 371, no separate order of sentence has been

passed for conviction under Sections 498A/34 IPC.

2. Before we advert to the facts, it would be appropriate to

reproduce Sections 498A and 304B IPC, which read as under:-

"498A. 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.

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 (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.

3. The essence of offence under Section 498A IPC is cruelty. The

expression "cruelty" as defined in the explanation does not necessarily

mean physical torture and is of a wider amptitude. It means such

willful conduct by a person which is likely to drive a woman to

commit suicide, cause grave injury or danger her life, limb or health,

which includes both mental and physical health. It also, under

Explanation Clause (b), includes in its ambit harassment of a woman

with a view to coerce her or any third person to meet any unlawful

demand of property or valuable security.

4. 304B IPC was enacted with effect from 19th November, 1986

with a view to combat menace of dowry deaths. Till then it was

difficult to secure conviction in cases of dowry deaths for lack of

tangible evidence on the cause of the unnatural death. Precise cause of

such death within the four walls and precincts of the matrimonial

home, even when a result of "cruelty and harassment on account of

dowry", were difficult to prove because of lack of evidence.

Ordinarily eye witnesses would not be available. Section 304B comes

into operation and the offence committed when a woman dies

unnatural death within 7 years of marriage and it can be shown that

soon before her death she was subjected to harassment or cruelty by

her husband or any relative of her husband in connection with demand

of dowry. Under this section, it is not necessary to prove whether the

death was a suicide or result of other inexplicable reasons. Unnatural

death by itself is sufficient to establish the offence. The expression

"deemed to" has been used in the legislation with a view to create a

legal fiction. The term "dowry" has been given the same meaning as in

Section 2 of the Dowry Prohibition Act, 1961.

In order to make the two sections effective, the legislature enacted

Sections 113A and 113B of the Indian Evidence Act, which read:-

"113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.-- For the purposes of this section," cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860 ).]

113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.

Explanation.-For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860)."

5. The two sections raise presumptions when the conditions

stipulated therein are satisfied. The reason for enacting these two

sections is that there is often absence of cogent and clear cut evidence

on the question of abetment and under what circumstances the woman

has committed suicide or how dowry death has been caused.

6. The aforesaid provisions have to be kept in mind before we refer

to the evidence, put before us, in the present case. Section 113A,

Evidence Act is not strictly applicable to offence under section 304B

IPC but Section 113B Evidence Act, as noticed below, is pertinent to

the case. Section 113A is relevant for offences under Section 498A

IPC.

7. It is an undisputed position that the deceased Aarti was wife of

the appellant Gulshan @ Mahender Singh. They had married three

years prior to the date of death of Aarti. There is evidence on record to

suggest that Aarti and Gulshan had fallen in love prior to the marriage

and their elders ultimately accepted their wishes. After marriage Aarti

started residing in her matrimonial home at House No.47, Gali No.5,

Punjabi Basti, Anand Parbat, Delhi with her husband and in-laws.

Aarti had become mother and „Chuchak‟ ceremony was held in the

evening/night of 4th September, 2006 at her matrimonial house.

8. Maya Devi, grandmother of Aarti appeared as PW-1 and has

deposed that after Chandrawati, mother of Aarti, had expired, Aarti

and her sister Pooja had lived with her since their childhood. Aarti had

married the appellant Gulshan about three years back. At the time of

marriage, PW-1 had given dowry articles as per their capacity.

However, Aarti was unhappy since the beginning of the marriage as

the appellants herein and sister-in-law Ruby (juvenile) harassed and

tortured her to bring more and more dowry. About six months back,

PW-1 had given Rs.11,000/- to the appellant Chote Lal @ Bhagwan

Singh. Aarti had given birth to a male child and on the occasion of

"Chuchak" ceremony they had given articles as per their capacity to

the in-laws of Aarti. On 4th September, 2006, at the time of "Chuchak"

ceremony the appellants had quarreled with Aarti on the point of non-

fulfillment of demand of gas cylinder and stove. PW-1, her son Sanjay

(PW-2), uncle (chacha) of Aarti, Nikhil (PW-11) brother of Aarti had

attended the "Chuchak" ceremony. 15 minutes after they had left the

matrimonial house, Aarti had come to her house i.e. PW-1‟s house,

weeping. The appellants Gulshan and Kanta followed her, slapped

Aarti and took her back. After about half to one hour, PW-1 heard

noise and along with her sons Satish and Sanjay (PW-2) and daughter-

in-law Sumitra, they went to the matrimonial house of Aarti, but she

was not there. Thereafter, they went to RML Hospital, where Aarti

was admitted in burnt condition. There were bandages all over her

body except face, hair and fingers. She was unable to speak and was

asking for water. She expired in the hospital on 6th September, 2006.

PW-1‟s statement (Ex.PW1/A) was recorded on 7th September, 2006.

She had given Rs.5,000/- to the appellant Gulshan at the time of

delivery of the child. She had handed over a handwritten note/letter

(Ex.PW1/B) of Aarti to the police. She identified the said hand written

note/letter in the Court. PW-1 had given to the police, list of articles

dated 9th December, 2004, Ex.PW1/C. PW-1 admitted that Aarti and

Gulshan knew each other before marriage and they had a love

marriage, which was initially opposed by her. Before marriage, Aarti

used to do household work in „kothies‟ and after marriage she started

giving tuitions. Father of Aarti had not attended the wedding of Aarti,

but had given Rs.75,000/- for her marriage. She categorically stated

that the entire family of the appellant Gulshan used to reside in the

room on the ground floor constructed in approximately 20 square

yards. She has stated that by shortcuts one could reach the house of

the appellants from her house, within 10-12 minutes, but if one went

by the main road it would take approximately 30 minutes. Aarti had

complained to her about her sufferings.

9. Cross-examination of PW-1 clearly suggests that the appellants

have accepted that "Chuchak" ceremony was performed on 4 th

September, 2006 as PW-1 was repeatedly cross-examined about the

said ceremony. She has stated that they remained at the matrimonial

house of Aarti till 12 midnight and came to know about the fire in the

house of the appellants at about 2 A.M., when brother-in-law (Dewar)

of Aarti, aged about 10 to 12 years had apprised them about the

incident. They reached the matrimonial house of Aarti, but found that

the fire had already been extinguished and all four of them i.e. PW-1,

her sons Satish and Sanjay (PW-2) and Sumitra left for the hospital.

Deceased, appellant Gulshan and the baby boy were admitted in the

hospital. Police personnel recorded her statement and thereafter one

person, who was not in uniform, recorded her statement in the police

station. Aarti was taken to the hospital by her in-laws. She denied the

suggestion that she had not attended "Chuchak" ceremony. She

reiterated that she had given the letter (Ex.PW1/B) written by Aarti to

the police and stated that she could recognize the said letter as it was

handed over to her by Aarti herself, but she did not know the contents

thereof. She went on to state in her cross-examination that the letters

Ex PW1/B were written by Aarti in her presence. With regard to the

list of articles (Ex.PW1/C), she has stated that the same was not written

by Aarti. She denied the suggestion that there was no quarrel on 4th

September, 2006 and no demand for gas cylinder and stove was made.

She denied other suggestions put to her.

10. Similar statement has been made by Sanjay (PW-2), who has

deposed that Aarti had told him about harassment and the fact that her

husband-Gulshan did not like her. Appellant Kanta also did not like

her. PW-2 had deposed that her mother had given Rs.11,000/- to the

appellant Chote Lal. After birth of the son, they had arranged for

"Chuchak" ceremony on 4th September, 2006 and the appellants

Gulshan and Bhagwan Singh had demanded a gas stove and TV, which

could not be provided. On the occasion of "Chuchak" ceremony on 4th

September, 2006, his mother PW-1, Sumitra, Nikhil (PW-11) brother

of Aarti, uncle Omi and other persons were present in the deceased‟s

matrimonial house. Appellant Chote Lal did not behave properly and

abused them. He questioned why father of Aarti had not come on that

day. Maya Devi (PW-1), Sumitra, Nikhil (PW-11) and Komal

remained at the matrimonial house of Aarti, but he and uncles of Aarti

i.e. Omi and Kale, came back. At about 5 A.M. he came to know

about the fire in the matrimonial house of Aarti. He went to the RML

Hospital and found that Aarti was crying loudly there. On 6 th

September, 2006, at about 3-4 P.M., Aarti expired in the hospital. In

the cross-examination, PW-2 reiterated that Aarti was being harassed

for bringing more dowry by the appellants. The appellants had

demanded cylinder and gas stove prior to "Chuchak" ceremony and the

appellant Chote Lal got annoyed and abused them as gas cylinder and

stove were not given. Appellant Kanta had slapped Aarti as the

demand for gas cylinder and stove was not fulfilled. He has deposed

that smell of kerosene oil was coming from Aarti when she was

admitted to the hospital. However, when they reached the matrimonial

house of Aarti, they found that the site had been cleaned. He has

accepted that Aarti and Gulshan knew each other before marriage and

they used to write letters to each other before marriage. He identified

the said letters as Ex.PW2/D1 to D7. His mother PW-1 had come from

"Chuchak" function at about 2-2.15 A.M. at night and at about 5 A.M.

they received information about the fire. People in the locality used to

operate water motor and store water from 2 to 3.30 A.M., at night. He

further deposed that Bishan Singh, father of Aarti had given

Rs.75,000/- to her mother (PW-1) at the time of marriage of Aarti.

Appellant Gulshan was admitted to RML Hospital and was given

treatment. When PW-2 had asked the appellant Gulshan about the

incident, he had averred that he was sleeping at the time of fire. The

child of Aarti and Gulshan was partly burnt on the head. He has

deposed that food in the house of the appellants used to be cooked at

times on stove and on other occasions by burning wood. They i.e. the

appellants had a kerosene oil lamp in their house, which was used in

the absence of electricity. He has denied the suggestion that Aarti had

sustained burn injuries while lighting the kerosene lamp with a candle.

He has denied several other suggestions given to him.

11. Statement has been made by Puja (PW-3), sister of Aarti, who

had not attended the "Chuchak" ceremony, but has stated that Aarti

used to complaint about her in-laws, who used to abuse her and

instigate her husband to beat her. Aarti‟s in-laws use to demand

dowry, though their maternal grandmother had given sufficient dowry

at the time of marriage. PW-3 has deposed that her maternal

grandmother was aware of the cruel behavior of Aarti‟s in-laws. In the

cross-examination by APP, she has deposed that she had told the police

on 7th September, 2006 that her sister Aarti was murmuring that her in-

laws had burnt her by pouring kerosene oil, but she voluntarily

clarified that she herself thought that her in-laws might have burnt her,

but it was wrong to suggest that Aarti had told her that her in-laws

burnt her. In the cross-examination by the appellants, she has admitted

that Aarti had a love affair with Gulshan before marriage and they used

to write letters to each other. She has accepted the position that

Gulshan was deeply in love with Aarti. She has deposed that probably

Rs.75,000/- was paid by her father to PW-1 some days before marriage

towards expenses. Besides this amount, PW-1 had arranged money

from other sources. Aarti was doing tuition work before marriage and

continued to do the same after marriage.

12. Nikhil (PW-11) has stated that on 4th September, 2006, he along

with his maternal uncle Sanjay had gone to the matrimonial house of

his sister Aarti. They attended "Kua Pujan" ceremony and stayed there

till 12 midnight. At about 8 P.M. father-in-law and mother-in-law of

Aarti quarreled with her on the question of gas stove and had stated

that her family had not brought adequate number of gifts/articles for

the said occasion. Thereafter, along with PW-1 and PW-2, he came

back to the house. Later on, he came to know that Aarti had suffered

burn injuries and had been taken to the Lady Harding Hospital. In the

cross-examination, PW-11 has stated that he had visited the house of

Aarti and Gulshan on 2-3 occasions, after marriage, but had not seen

them quarrelling with each other in their house. Aarti had never told

him about the quarrel with her husband and in-laws.

13. Bishan Singh, father of Aarti has appeared as PW-4. He has stated

that he has four children i.e. three daughters and a son. After death of his

wife, his elder daughters Puja and Aarti started living with May Devi

(PW-1). PW-4 has stated that his second daughter Aarti was married to

Gulshan and he had given Rs.75,000/- prior to the marriage, but he did

not attend the marriage. In 2005 on Rakshabandhan, Aarti and Gulshan

had visited his house in Gurgaon and had again visited his house on the

occasion of marriage of his nephew, in the month of February, 2006. On

the two occasions, Aarti had asked for money and clothes for herself. He

and his family members were invited by the appellants to the "Chuchak"

ceremony, but he had sent his younger brother Om Prakash, nephews

Satish and Tarun, daughter Komal and son Nikhil along with clothes,

edibles, some gold items i.e. small lockets, some silver items etc. They

returned in the night and he was informed by his brother

Om Prakash that gifted articles were not liked by the in-

laws of Aarti who had abused them. On 5th September, 2006 in the

morning he received a message from PW-1 to reach at RML Hospital

immediately as in-laws of Aarti had burnt her by pouring kerosene oil.

His statement was recorded by SDM in the hospital. He was cross-

examined by the APP and, in the said cross-examination, he has

accepted that Pooja had told him that she was informed by Aarti that

her in-laws had quarreled with her and burnt her by pouring kerosene

oil. In the cross-examination by the appellants, PW-4 has accepted that

the marriage between Aarti and Gulshan was organized by PW-1. He

was informed about the marriage but was not invited. He was not on

visiting terms with PW-1. He had met Aarti in the hospital, but she

could not speak or talk about anything. He has accepted that Aarti had

never complained to him about the harassment by her husband and in-

laws and he had never visited the matrimonial house of Aarti.

14. Sharda (PW-5) and Savitri (PW-6) have stated that in the

intervening night between 4 and 5th September, 2006, they heard noise

and when they came out in the street they saw Aarti being taken to the

hospital by the three appellants. Relatives of Aarti had quarreled with

the appellants in their presence.

15. What is clearly discernible from the statements of the said

witnesses is the factum that Aarti had suffered burn injuries in the

intervening night of 4th and 5th September, 2006. "Chuchak" ceremony

had continued late into the night. Relatives of Aarti had remained in

the matrimonial house of Aarti till around 12 midnight. It was a joyous

and happy occasion, but was marred with bitterness and complaints as

the appellants were not satisfied with the gifts given by Aarti‟s

relatives. There was a demand for gas cylinder and stove. There is

hardly any contradiction in the statement made by PW-1, PW-2, PW-3

and PW-11 on this aspect. The contradictions regarding the time etc.

in the statement of PW-1 and others is hardly relevant and is a minor

discrepancy. PW-3‟s deposition, that Aarti had come to her house and

was followed by the appellants Gulshan and mother-in-law Kanta, who

had slapped her, does not merit acceptance as no such allegation was

made by PW1`s statement ExPW1/A before the SDM (K.K.Sharma

PW-13) but this cannot be a ground/reason to disbelieve her statement

on salient and main point of harassment for dowry on the occasion of

`chuchak` ceremony. On the said aspect and the demand for gas stove

and cylinder is adverted to and stated by all witnesses who had

attended the said ceremony. The said fact is mentioned in PW1/A, i.e.

the first statement made by PW1 before the SDM.

16. It would be appropriate here to refer to the MLC (Ex.PW7/A)

of Aarti which was recorded at 5.30 A.M. on 5th September, 2006. It

records that smell of kerosene was coming from the body of the

patient. She had 100% black burns. She was brought to the hospital by

her husband Gulshan who claimed that Aarti had suffered flame burns

by candle light. The appellants, in their statement under Section 313

Code of Criminal Procedure, 1973 (Cr.P.C.), accept their presence in

the house at the time of occurrence and have claimed that Aarti had

suffered burn injuries when fire broke out because of candle and diya.

This proposition, is also recorded in the MLC (Ex.PW7/A) but is

evidently incorrect and wrong. Smell of kerosene was coming from

the body of the deceased, when she was admitted to the hospital. This

fact has been fortified by witness Sanjay (PW-2), who had seen the

deceased in the hospital, after the occurrence. The post mortem report

(Ex.PW10/A) records that Aarti had suffered burn injuries on the face,

neck, front and back of both upper limbs, front chest, abdomen, front

of leg up to ankle, right leg up to ankle, back of left leg up to calf etc.

The total area of burn was 80%. She had suffered 3 to 4 degree burns.

Cause of death, as opined, was 80% flame burn resulting in shock.

17. We may record that Section 113B of the Evidence Act and the

presumption raised there in, is applicable to the present case. The onus

has not been discharged.

18. As observed and held above, the "Chuchak" Ceremony was held

on 4th September, 2006 in the matrimonial house of Aarti and the

function had continued till late night. It is obvious that food had been

served and the guests were entertained. Gifts were given by relatives

of Aarti to the appellants. Unfortunately but true, in a conservative

family as in the present case, "Chuchak" ceremony is normally

celebrated on birth of a son. It is a happy occasion; a cause for

felicitation, jubilation and thanks giving. There was hardly any cause

or ground to suspect that the normal matrimonial stress/strain was the

reason for Aarti to take extreme step of burning herself by pouring

kerosene oil. The testimonies of the relatives show that, after the

ceremony was over, the guests had gone by midnight. The occurrence

had taken place afterwards but within a few hours after the guests

including relatives of Aarti had left. In the present case, pre-conditions

for raising the presumption under Section 113B of the Evidence Act

are fully satisfied. There is sufficient evidence on record that soon

before the unnatural death of Aarti, she was subjected to cruelty and

harassment by the appellants in connection with the demand of dowry.

On the occasion of „Chuckak‟ ceremony, the appellants had demanded

a gas cylinder and stove. The death has taken place immediately after

the guests returned home after attending the Chuchak Ceremony. The

time of death is within few hours when vociferous and persistent

demand for gas stove and cylinder was made.

19. Keeping in view the facts stated above and the testimonies made

by the relatives, it is clear to us that offence under Sections 498A and

304B IPC have been made out.

20. Here it would be appropriate to reproduce the contents of the

two letters (Ex.PW1/B) written by Aarti.

"Grandmother (Nani), (They) harass me. My sister-law (Nanad) quarrels and beats me. In her influence, my mother-in-law and father-in-law abuse me and Gulshan also gives me beatings. Since my marriage, I am disturbed because they give me beatings. I have given tuitions for 6 months and they had taken even that amount from me and tantalize me for eating anything. They all together curse me. Grandmother (Nani) please come and see how I am living.

Your Aarti is facing harassment.

(They?) take from me and do not give me to eat. (?) All together give me beatings. The name of my sister-in- law is Rubi.(?) who gives me beating. (?) harass me most. Grandmother (Nani) (They) harass your Aarti a lot."

21. The letters show the anguish, pain and sufferings, which Aarti

was going through in her matrimonial house. These letters Ex PW1/B

may have been written 2/3 months prior to the death of Aarti and may

not be proximate in time viz. date of occurrence but do corroborate the

statements of the witnesses PW1, PW2 and PW11 on the demand for

gas cylinder and stove made by the appellants on the occasion of

`chuchak` ceremony.

22. Learned counsel for the appellant has highlighted that the

appellant Gulshan had suffered burn injuries. He has pointed out that

baby boy had also suffered burn injuries. Dr. Manoj Gupta (PW-8) has

deposed that he had examined the baby boy and the appellant Gulshan

and prepared their MLCs Ex.PW8/A and Ex.PW8/B, respectively. The

baby of Aarti had 10% burns, whereas the appellant Gulshan had

approximately 5% burns. The burns suffered by Gulshan are minimal

and it is possible that these burns may have been suffered when he was

trying to protect and save the baby, who had more burns than him.

23. Another contention raised was that the doctors had declared

Aarti fit for statement on 5th September, 2006 at 6.35 a.m. but her

statement was not recorded. This is correct, but we also have further

statement by the doctors that Aarti was not fit for statement at 9.35

a.m. on 5th September, 2006 and again at 9.35 on 6th September, 2006.

Aarti may have been declared fit for statement shortly after she was

admitted to the hospital i.e. at around 5.30 A.M. on 5th September,

2006. However, it may not have been possible to record her statement

immediately. Mr. K.K. Sharma (PW-13), Deputy Director, DDA, who

was posted as SDM, Patel Nagar on 5th September, 2006, has deposed

that he was informed about the admission of Aarti in RML Hospital

with history of burn injuries. He reached the hospital at about 9.30

A.M., after receiving the information, but Aarti was declared unfit to

make statement. On 6th September, 2006, he received information that

Aarti had expired. Thereafter, he went to the mortuary of DDU

Hospital where police officials and relatives of the deceased were

present. PW-13 recorded statements of relatives, FIR was registered

and the investigation followed. It is apparent that statement of

deceased could not be recorded by the SDM because by the time he

was able to reach the hospital, Aarti was declared unfit to give

statement. Observations made in paragraph 26 below are also relevant

on the said aspect.

24. Yet another contention of the appellants is that PW-5 and PW-6

have not implicated the appellants. They have averred that the three

appellants were gentle persons who had never quarreled or harassed

the deceased Aarti. Their testimony should be accepted and the

statement of the relatives should be disbelieved. We are not inclined to

accept the said contention. The neighbours PW-5 and PW-6 may not

be aware regarding what has transpired in the matrimonial house of

Aarti. They reached the spot, subsequently, and it should be noticed

that the time of occurrence was well past midnight.

25. The police witnesses have supported the prosecution case. SI

Santosh Pabri (PW-16) has deposed that he was present with the IO

Inspector Manoj Kumar when the appellants were interrogated.

Appellant Bhagwan Singh, who had made disclosure statement

(Ex.PW16/A), had taken them to CNG pump, Military Road from

where a container of kerosene oil was recovered vide seizure memo

Ex.PW16/E. He has deposed that, when they reached at the spot, they

did not find any burnt mattress or blanket. The distance between CNG

Pump and the house of the appellants was almost half to quarter

kilometer and it took about 10 minutes to reach at the CNG Pump.

26. SI Gian Chand (PW-20) has deposed that on 5th September,

2006, he was posted at Anand Parbat and, at about 5.45 A.M., copy of

DD No.8A (Ex.PW14/A) was assigned to him for taking action in the

matter. Accordingly, he along with Constable Lalit went to the RML

Hospital and collected MLCs of Aarti, Gulshan and baby boy. He met

the doctor and asked about the fitness of Aarti. At that time, the

doctors on emergency duty declared Aarti fit to make statement.

PW-20 accordingly informed the SDM concerned about the

occurrence. SDM came about at 9.30 a.m., but at that time Aarti was

declared unfit to make statement. Subsequently, Aarti expired at about

6 P.M. on 6th September, 2006. Statement of PW-20 clarifies the

testimony of PW-1, who has stated that she had seen a person without

uniform and one policeman in uniform. PW-20 had remained with

Aarti for 15-20 minutes and thereafter informed SDM, who also came

to the hospital. After the SDM reached at the hospital, he went to the

matrimonial house of Aarti, but did not find any burnt mattress or

burnt clothing. The place had already been washed. Crime Team was

called to the spot but they did not seize anything.

27. Inspector Manoj Sinha (PW-25) has deposed that PW-1

identified the note (Ex.PW1/B) written by the deceased regarding

cruelty and harassment. They had continued to search for the

appellants who were absconding. He has deposed that when he

reached the house of the appellants, he found that the floor was cleaned

and no other exhibits pertaining to the case was found. He has deposed

that he had tried to obtain handwriting sample of Aarti, but could not

locate any.

28. The last question pertains to the quantum of punishment.

Bhagwan Singh and Kanta were released as the sentences awarded to

them were suspended vide order dated 29th July, 2010. Earlier during

pendency of the proceedings before the trial court, they remained on

bail. In the application for suspension of sentence they have stated that

they were taking care of minor grandson i.e. son of the deceased Aarti

and the appellant Gulshan. Keeping in view of the aforesaid facts, the

order of the sentence is partly modified. The appellant Gulshan is

sentenced to 14 years of rigorous imprisonment and the appellants

Bhagwan Singh and Kanta are sentenced to rigorous imprisonment for

a period of 8 years under Section 304B read with Section 34 IPC. In

addition, the appellants shall undergo the sentence as awarded for

offence under Section 201 IPC i.e. two years rigorous imprisonment

and fine of Rs.2,000/- and in default thereof undergo simple

imprisonment for six months. The sentences shall run concurrently.

29. The appeals are accordingly disposed of, confirming the

conviction of the appellants but modifying the order of sentence as

indicated above. The appellants Bhagwan Singh and Kanta will

surrender before the trial court, within 15 days, to undergo the

remaining sentence.

30. Delhi High Court Legal Services Committee will get in touch

with appellants Bhagwan Singh and Kanta, and will ensure that the

needs and requirements of the son of the deceased are taken care of.

-sd-

(SANJIV KHANNA) JUDGE

-sd-

(SIDDHARTH MRIDUL) JUDGE APRIL 8th, 2013 NA/KKB