Sanjay Kumar Jain vs State
2013 Latest Caselaw 3452 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of Decision:6th August, 2013


1.     CRL.A. 107/2000

       SANJAY KUMAR JAIN                          ..... Appellant
                   Through: Mr. K.T.S. Tulsi, Sr. Advocate with
                            Mr. Kuber Bodh, Advocate.
                   versus
       STATE
                                                   ..... Respondent
                   Through: Ms. Jasbir Kaur, APP

2.     CRL.Rev.P.237/2000

       B.S. JAIN                                             ..... Appellant
                              Through: Mr. K.T.S. Tulsi, Sr. Advocate with
                                       Mr. Kuber Bodh, Advocate.
                              versus
       STATE
                                                             ..... Respondent
                              Through:    Ms. Jasbir Kaur, APP

CORAM:
MR. JUSTICE R.V. EASWAR

                                   JUDGMENT

R.V. EASWAR, J.:

Criminal appeal No.107/2000 is directed against the judgment

dated 1st February, 2000 of the Additional Sessions Court in case FIR No.

195/93 in P.S. Shalimar Bagh under sections 498-A, 304-B and 306 of

the Indian Penal Code, 1860 (IPC). The appellant is Sanjay Kumar Jain,

who has filed the appeal under the following circumstances. Criminal

Revision Petition No.237/2000 has been filed by Bishan Swarup Jain

against the acquittal of the parents of Sanjay Kumar Jain by the same

judgment.

The facts:

2. The appellant married Kavita Jain, the deceased, on 19-2-1989. A

male child was born to them on 6-3-1990. They were residing at the first

floor of house No.BFH-9, Shalimar Bagh, Delhi along with the parents

(Harish Jain and Manju Jain) of the appellant. They were tenants; the

landlord Tilak Singh Yadav was residing in the ground floor with his

family. On 19-7-1993, at about 6-30 AM, he heard the shrieks of a

woman from the first floor from the side where the bathroom is located;

he went up to the first floor, woke up the appellant, who tried to open the

bathroom but could not; he walked along the shaft from the other

bathroom, broke open the window pane of the bathroom from which the

shrieks came and found his wife lying on the floor of the bathroom with

her body burnt fully. The appellant's parents were not at home; they had

gone for their morning walk. Tilak Singh Yadav informed the police. A

post-mortem was conducted at around 9 AM. At 4-30 PM the

Investigating Officer (IO) recorded the statement of the father of the

deceased, i.e., Bishan Swarup Jain who spoke about dowry demands from

the family of the appellant, torture and physical abuse of his daughter; he

referred, inter alia, to the reference made by her to a demand made on 11-

7-1993 by her in-laws for a Maruti car. On 20-7-1993 the appellant was

taken into custody. The inquest was conducted by the Sub-divisional

Magistrate on 21-7-1993. On 26-9-1993 a charge sheet was filed charging

the appellant and his parents under sections 34, 306, 304-B and 498-A of

the IPC. The trial court acquitted the parents of the appellant, but the

appellant was found guilty of the offences under section 304-B (causing

dowry death within 7 years of marriage) and section 498-A (subjecting

wife to cruelty driving her to death). The appellant was sentenced to

seven years R.I. under the former and to two years and fine of Rs. 1000

under the latter.

The findings:

3. The findings of the trial court are as follows:

a) There was a demand of a Maruti car by the in-laws of the

deceased a week before the date of occurrence (on 11-7-1993), as they

had incurred loss in the business. The contention of the defence that it

would be ridiculous that such a demand would be made because of loss in

the business has no merit, since demand of dowry has no logic and cannot

be tested on the anvil of reason.

b) The parents of the deceased were compelled to give a sum of

Rs. 60,000/- to the appellant and his parents in January, 1992. This was

done through three demand drafts of Rs. 20,000/- each, given to the

deceased as a gift. The argument of the defence that this might have been

done by the parents of the deceased in order to save income-tax, by

claiming deduction from their income, is not acceptable since it does not

stand to reason that they would give away Rs. 60,000/- to save tax of Rs.

24,000/-, even at the highest rate of 40%. The saving of the tax, if any,

could at best have been only incidental. Further, the drafts were payable

to the deceased, but payable at Bagpat where the business of the appellant

was being carried on.

c) There was tension between the parents of the appellant and the

parents of the deceased on account of the demand of dowry and other

demands, as deposed by the landlord.

d) The death occurred within 7 years of the marriage and as per

the post-mortem report it was caused by the burns on the body of the

deceased. It was thus established that she committed suicide. The

presumption under section 113-B of the Indian Evidence Act, 1872

applies.

4. The appellant-accused had made a statement under section 313 of

the Criminal Procedure Code, 1973 (Cr.P.C.) In that statement, he stated

that his wife Kavita Jain did not want his parents to live with them and

wanted them to go to Bagpat where the other members of their family

lived and where the business of the appellant was also being carried on.

Though his parents were not keeping well and were under medical

treatment, Kavita Jain insisted that they were sent away to Bagpat. This

conflict of ideas gave rise to frequent arguments between them (i.e., the

appellant and Kavita). The last of such arguments took place on the night

of 18-7-1993, after which the appellant and Kavita went to sleep, with

their son sleeping between them. He woke up the next morning only

hearing the knocks at the door by the landlord and his family, and on

coming to know that Kavita was not in the bed, tried to open the

bathroom. He could not do so, as it was locked from inside. Thereafter he

took the risk of walking the narrow shaft between the two bathrooms and

broke open the window pane of the bathroom and unlocked the window

and entered the bathroom through the window. He accompanied the body

of Kavita in the police van and also informed the doctor about the quarrel

between him (the appellant) and his wife, and wanted to elaborate, but the

doctor did not permit it, saying that he had to examine Kavita. He denied

that there was any demand for a Maruti car or any other dowry demand;

according to him, the business was located in Bagpat and he and his

father were going to that place every day in their own Maruti car.

Sometimes, he used to go by bus also, whenever he was not well. So ran

the statement of the appellant under section 313 of the Cr. P.C.

5. On the basis of the aforesaid statement and the testimony of the

landlord Tilak Singh Yadav (PW 4), it was argued before the trial court

that it was highly probable that Kavita decided to take away her life since

she found that the appellant was not willing at all to accept her request

that his parents should be sent to Bagpat, and that she will have to put up

with the sick in-laws and serve them by taking up the burden of all the

household work. It was argued that Kavita was in the habit of confiding

in Tilak Singh Yadav about the issue between her and the appellant and

this had been brought out during the cross-examination of Tilak Singh

Yadav. The trial court, however, was not prepared to believe the

testimony of Tilak Singh Yadav on this point. Firstly, the trial court

observed that PW4 did not say anything on this aspect to the IO in the

police statement and that it was for the first time this was brought out

during the cross-examination. Secondly, even her in-laws had certified to

the good nature and good behaviour of Kavita, which showed that she

bore no ill-will towards them, which would have been the natural reaction

if it was true that she did not want them to stay in the same house. Since

she did not exhibit any hostile attitude towards them, their staying in the

same house could not have been an issue between her and the appellant.

Therefore, the statement of PW4, during cross-examination, about Kavita

mentioning to him about the issue between her and the appellant on

account of the in-laws staying with them was not believable.

6. The trial court did not also attach much weight to the fact that the

appellant volunteered to give details about the quarrel between him and

the deceased the previous night to the doctor. According to the trial court,

the MLC mentioned that Kavita was brought dead and therefore the

doctor could have had no difficulty in noting down a few more facts

about the quarrel. The inference of the trial court was that the appellant

did not volunteer any such information. The trial court also inferred that

the statement of the appellant (Ex.PW-6/D-A), on which reliance was

sought to be placed by the defence, was "introduced in the inquest file at

some later stage" and therefore did not bear the signature of the SDM.

7. The trial court however acquitted Harish Chander Jain and Manju

Jain, the parents of the appellant. So far as Harish Chander Jain is

concerned, it found that the allegation that he used to taunt the deceased

for bringing insufficient dowry was an after-thought and was not made in

the FIR; as regards Manju Jain, she was found to be physically

challenged, having undergone a hip replacement surgery, and therefore

incapable of inflicting any physical injury upon the deceased by beating

her, which was the allegation. They were thus given the benefit of doubt.

The rival arguments:

8. It was argued for the appellant that the testimony of the landlord

Tilak Singh Yadav (PW4), who was a retired college professor, shows

that there was nothing to suspect or involve the appellant Sanjay Jain,

husband of the deceased Kavita Jain, in any offence under section 304-B

or section 498-A of the IPC. It was claimed that PW4 was a natural and

honest witness. The other important argument was that Bishan Swarup

Jain (PW1), the father of Kavita Jain, kept improving his statements from

time to time and adding new facts/allegations. Comparisons were made

between the police statement given by him under section 161 Cr.P.C. and

the statement given to the SDM on successive dates which contained

several embellishments and improvements. The facts mentioned by him

in the FIR (which was filed by him) and the statement before the SDM

were sought to be improved upon by further embellishments during the

testimony in court. It was pointed out that the only allegation of PW1 was

that the appellant and his parents demanded a Maruti car; the allegation of

torture and harassment made in the court was not substantiated, were

vague, and no dates or time were mentioned. Out of the following

allegations made before the SDM, i.e., - (i) payment of Rs. 11,000/- and

clothes for Rs. 25,000/- to Kavita; (ii) Rs. 10,000/- which he was forced

to pay during festivals and functions (such as the birthday function of the

grand-daughter); (iii) to give gold ornaments during functions, festivals

etc., (iv) to give a Maruti car, only the allegation of demanding Maruti

car was stuck to by PW1, and the other allegations were dropped in court

during the testimony, which fact was crucially lost sight of by the trial

court. During the testimony, PW1 introduced three new allegations,

according to the appellant: (i) Rs. 10,000/- paid on each of the four

occasions to satisfy the demands; (ii) Rs. 22,000/- paid for attending the

wedding of Shalil Kumar, brother of Kavita Jain in November, 1989 and

(iii) Rs. 10,000/- paid on the birthday of Bishan Swarup's grand-

daughter. Thus, according to the learned counsel for the appellant, the

witness went on improving and changing or embellishing his statements

as he wished, without mentioning any dates or otherwise being specific

and hence his testimony was unreliable.

9. As regards the evidence of PW3 (mother of Kavita Jain) is

concerned, it was submitted that she did not generally support the

embellishments made by PW1 and specifically refuted at least two of

them. With regard to the testimony of Shalil Kumar Jain (PW2), the

brother of Kavita Jain, it was pointed out that he did not support the

embellishments of PW1, but relied on the demand of Maruti car and the

payment of drafts for Rs. 60,000 (3 drafts of Rs. 20,000/- each) to the

deceased as dowry demand. It was contended that the evidence of PW1 to

PW3 were full of improvements and cannot be relied upon.

10. Referring to the testimony of the Manager of the State Bank of

India, Chandni Chowk, Delhi (PW8), it was submitted that the drafts

issued on 9/10-1-1992 in the name of the deceased were not encashed at

all until the date of the occurrence (19-7-1993) which belied the claim

that the drafts represented dowry payments on the compulsion or demand

of the appellant or his parents. It was pointed out that the drafts were in

the name of the deceased, and were not encashed at all by her for nearly

18 months (for reasons best known to her) which belied the allegation

that they were dowry payments. At best, they can be gifts given by

Kavita's parents to her, which can by no means be called "dowry".

11. On the basis of the entire evidence, facts and circumstances

brought out, it was submitted on behalf of the appellant that no offence

under section 304-B or section 498-A was established. They pointed out

to only the fact that the bone of contention between the appellant and the

deceased was the stay of the appellant's parents with them; while the

deceased was insisting that they be sent to Bagpat, the appellant was

resisting it. His reason was that after he lost his brother and being the

only surviving son, it was his duty to look after and support his parents;

and sending them away, when they needed medical care, to Bagpat would

force them to be without solace and support, which was not possible. This

conflict, according to the learned counsel, for the appellant can hardly

amount to cruelty on the part of the appellant towards the deceased.

According to him, the cruelty must have a causal connection with the

demand of dowry and a conflict between the husband and wife on

account of a domestic matter can hardly amount to this.

12. In support of his submissions, the learned counsel for the appellant

relied on the following authorities:

(i) Appasaheb & Anr. Vs. State of Maharashtra (2007) 9 SCC

(ii) Deepak Poddar & Anr. Vs. Dinesh Poddar (decided on

17.8.2007)

(iii) Division Bench judgment of this court in State Vs. Rakesh &

Ors. (decided on 15.5.2012) (copy filed)

13. The arguments of the learned Assistant Public Prosecutor,

appearing for the State, are as follows. The ingredients of the offence

under section 304-B, as laid down in Mustafa Shahadal Shaikh Vs. State

of Maharashtra (2012) 11 SCC 397 are satisfied in the present case.

There was a dowry demand soon before the death, on 11-7-1993, as is

evident from the testimony of PW1 (Bishan Swarup Jain) and his

statement before the SDM under section 164 of the Cr.P.C. Any minor

variations or discrepancies in the testimony of witnesses are not material,

considering the overall circumstances of the case, as rightly pointed out

by the trial court in paragraph 9 of the impugned judgment. There was

ample evidence that there were conflicts between the two families on

account of the unreasonable and hefty dowry demands and they were not

even visiting each other; the parents of the deceased were talking to her

only over the phone (paragraph 12 of the impugned judgment). It was

submitted that the appellant, being the husband of the deceased, was the

best person to explain the circumstances resulting in the death of his wife

which was not forthcoming. It was finally pointed out that the deceased

was expecting her second child and no woman would think of ending her

life in such a condition, unless the atmosphere in the house was

unbearable; in the present case, such atmosphere prevailed in the house

on account of the unreasonable and persistent dowry demands, which the

deceased could not longer bear and she therefore decided to put an end to

her life. It is urged that for this, it is the appellant who was the cause.

14. In his brief rejoinder, the learned counsel for the appellant

submitted that the trial court erred in not applying to the appellant's

defence the same standards which it applied to the defence of his parents

who were acquitted.

The decision:

15. I may first refer to the deposition of PW 1 - Bishan Swarup Jain -

who is the father of the deceased, Kavita Jain. He deposed that the

accused and his mother Manju Jain used to beat Kavita for not bringing

sufficient dowry. A sum of Rs. 10,000/- was paid four times to Kavita to

satisfy the dowry demand. She was also given Rs. 60,000/- to be given to

them through three bank drafts of Rs. 20,000/- each. This was paid,

according to PW1, to save Kavita from the beatings. He also stated that

he paid Rs. 22,000/- to ensure the attendance of Kavita at the marriage of

his son, Shalil Kumar Jain in Nov., 1989. He also had to pay Rs. 10,000/-

to ensure Kavita's attendance at the birthday function of the child of

Shalil Kumar Jain. On 11-7-1993, Kavita had come to his house to say

that the appellant and his parents would kill her if he did not get a Maruti

car; he therefore came to the appellant's house and assured that he would

arrange for the car. According to him, Kavita either committed suicide or

was killed by the accused by burning her. If she had committed suicide, it

was only because of the harassment, taunts and dowry demands of the

accused persons. In the course of the deposition before the court, PW1

admitted that he did not mention in the FIR the fact that he had to pay Rs.

10,000/- four times or about the payment of the three drafts for Rs.

60,000/-. He denied the suggestion that he did not mention about the

drafts because he had not handed over them to Kavita as promised, as a

gift to her. He also admitted that, in the statement before the police under

section 161 Cr. P.C. (Ex. PW1/A) and in the statement before the SDM

(Ex. PW1/B), he did not mention about the drafts for Rs. 60,000/- or the

amount of Rs. 22,000/- said to have been paid to ensure Kavita's

attendance at the wedding of Shalil Kumar Jain or about the amount of

Rs. 10,000/- said to have been paid to ensure Kavita's attendance at the

birthday function of Shalil Kumar's daughter. PW1 admitted in his

deposition before the court that "it is correct that accused Harish and

Sanjay daily went to Bagpat in the morning and return in the evening to

their house in a Maruti car and also in the bus. It is correct that accused

persons have a Maruti car."

16. The deposition of PW1 shows that he has been improving his case

with regard to the dowry demands from time to time; from the FIR stage

to the statement under section 161 Cr.P.C. and to the statement before the

SDM and eventually before the court during the trial. The learned counsel

for the appellant is therefore right in saying that much weight cannot be

attached to the allegation of dowry demand (of cash payments) by the

appellant and his parents. The drafts for Rs. 60,000/-, as per the

deposition of the manager of the SBI, Chandni Chowk branch, were in

the name of the deceased and though they were issued in January, 1992,

were not encashed till the date of occurrence. It has not even brought out

whether the appellant was in the know of these drafts. This is important,

since had the appellant been aware of the drafts, he would have

compelled or forced the deceased to encash them and hand over the

proceeds to him, if the allegation of dowry demand were true. The

allegation that the appellant and his parents demanded a Maruti car on 11-

7-1993 stands belied by the admission of the witness himself that the

appellant had his own Maruti car in which he and his father used to go to

Bagpat daily to look after the business. The improvements and

embellishments, which were abandoned during the testimony in court,

cannot be brushed aside as minor or inconsequential variations, since they

form the foundation of the complaint/charge against the appellant. Since

it forms the basic ingredient of the offences under sections 304-B/498-A,

it has to be strictly proved and established.

17. PW2, Shalil Kumar Jain, is the brother of Kavita. In his evidence,

he speaks generally of cash payments on various occasions as and when

required which did not change the attitude of the appellant and his

parents; specifically, however, he refers only to the drafts for Rs. 60,000/-

about which I have already commented in the preceding paragraph. He

refers to the demand of Maruti car, which he came to know from his

mother (PW3 Suman Jain). He admitted that when Kavita was supposed

to have come to the house with the demand of the car, he was not present

in the house. But in the statement before the police, he had stated that the

telephone call regarding the demand for Maruti car was attended by him.

He has thus not supported the improvements and embellishments made

by PW1. As far as the demand of the Maruti car is concerned, apart from

the contradictions - he said to the police that he received the phone call

regarding such demand, but in court says that he heard about the demand

from his mother (PW3) - the fact remains, which was brought out in the

deposition of PW1, that the appellant had his own Maruti car in which he

and his father used to travel daily to Bagpat for business.

18. PW3 - Suman Jain - is the mother of the deceased. Her deposition

shows that she does not support the embellishments in the depositon of

her husband PW1, at least two of them. She has referred to payment of

Rs. 10,000/- several times and the drafts for Rs. 60,000/-. She has also

referred to the demand of Maruti car.

19. The deposition of PW4 - Tilak Singh Yadav - who is the landlord

may now be examined. He deposed that he actually saw the appellant

walking on the water pipes connecting the shaft between the two

bathrooms, break open the window pane and enter the bathroom. He

entered the bathroom when it was opened by the appellant from inside

and saw Kavita open her eyes when the appellant asked what she has

done and why. He wanted to take her to the hospital, but PW4 told him to

wait till the police came, as it was a case of burning.

20. PW4 was a lecturer in Venkateswara College, Dhaula Kuan. He

stated in his deposition that Kavita was a regular visitor to his house and

used to meet him in a friendly manner. He stated that Kavita did mention

to him that since Harish Jain, the father-in-law was a heart patient and

Manju Jain, the mother-in-law was unable to walk properly, and further

since the servant had also left the services, it would be better that her in-

laws lived separately; that the brothers of Harish Jain lived in Bagpat, UP.

PW4 thus deposed that according to Kavita, both Harish Jain and Manju

Jain should reside in Bagpat. He had also stated before the police, which

he confirmed in court, that he had never seen any quarrel or "mar-peet"

between the appellant and Kavita. What he stated before the police was

only that there was some tension between the parents of Kavita and her

in-laws and they did not visit each other. He also denied the suggestion

that he was favouring the accused since he wanted him to vacate the

premises; he had already vacated the house by the time trial had started.

21. It appears to me that if there was any dowry harassment or related

torture or ill-treatment of Kavita by the appellant or her in-laws, she

would have mentioned it to PW1, going by the fact that she mentioned to

him that it was her desire that her in-laws should stay away from them in

Bagpat, UP. If she had thought it fit to mention such a conflict, which

was not of any serious nature so as to cause concern or any threat of

physical danger, nor unusual or uncommon in households, I am fairly

certain that she would have mentioned it to PW1 if there was any torture

or ill-treatment of her by the appellant or her in-laws related to dowry.

To sum up, the trial court should have preferred the evidence of

PW4 (Tilak Singh Yadav, the landlord) as he was an objective or neutral

witness and had deposed that he had not seen the appellant and his wife

quarrelling or indulging in "mar-peet"; the deceased, who used to visit the

landlord's house in the ground floor, never mentioned anything about any

dowry demand or the related ill-treatment/torture/abuse. This aspect was

overlooked by the trial court. The trial court placed undue weightage on

the evidence of PW1, forgetting that he was an interested witness and that

had improved or embellished his version from time to time. He also

admitted that the appellant had his own Maruti car, which takes away the

bottom of his allegation that the appellant and his parents demanded a

Maruti Car as dowry. It also overlooked that the three drafts for

`60,000/- were made out in the name of the deceased and remained

without being cashed from January, 1992 to the date of occurrence.

Finally, in any case, if the deposition of the prosecution witnesses were

not good enough to convict the appellant's parents and they could be

given the benefit of doubt, on the same evidence the appellant could not

have been held guilty.

22. Taking all the above into account, I am of the view that the offence

under sections 304-B and 498-A have not been established or proved

beyond reasonable doubt. I therefore set aside the impugned judgment

and the sentence and allow the appeal. The sureties, if any, are

discharged.

23. Consequently, the revision petition filed by Bishan Swarup Jain for

suspension of the impugned judgment in so far as it acquits Harish

Chander Jain and his wife Manju Jain (parents of the appellant in the

criminal appeal) is dismissed.

(R.V. EASWAR) JUDGE August 06, 2013 //vld