Delhi High Court

Prem Pal Singh vs State Of Nct Of Delhi on 4 January, 2013

Author: Mukta Gupta

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+    CRL.A. 857/2008

%                                         Decided on: 4th January, 2013

       PREM PAL SINGH                                     ..... Appellant

                             Through   Mr. Rajat Navet, Amicus Curiae

                    versus

       STATE OF NCT OF DELHI                              ..... Respondent

Through Mr. Mukesh Gupta, APP for State.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA MS. MUKTA GUPTA, J (ORAL)

1. By the present appeal the Appellant challenges the judgment dated

26th August, 2008 convicting the Appellant for offences under Section 498A

IPC and 304B IPC and the order on sentence dated 27 th August, 2008

sentencing the Appellant to undergo simple imprisonment for 7 years

without a separate sentence being imposed in respect of offence under

Section 498A IPC.

2. Learned amicus curiae for the Appellant contends that the conviction

of the Appellant is based solely on the uncorroborated testimony of PW1 the

brother of the deceased. The uncle of the deceased who had in fact brought

up the deceased after the death of her parents has not supported the

prosecution version. Moreover, no material has been placed on record to

corroborate the demand of fridge or Rs. 50,000/- for business. The

allegations of beating are also not substantiated as PW6 Dr. Mukta Rani in

her testimony has stated that besides the anti-mortem hanging injury there

was no other injury on the deceased. The learned Trial Court erred in

drawing a negative inference that merely because the Doctor has stated that

there is no injury mark that does not mean that no injury was inflicted on the

deceased. The fridge was allegedly brought one month prior to the demise

of the deceased and no receipt thereof has been exhibited. A perusal of

testimony of PW1 the brother of the deceased does not show that there was a

demand of dowry. Even if the version of PW1 is accepted, at best it was a

demand of Rs. 50,000/- for running the business which was not in relation to

the marriage and thus did not constitute a dowry demand. The judgment of

the learned Trial Court is contrary to the law laid down by the Supreme

Court in Appasaheb and Anr. Vs. State of Maharashtra (2007) 9 SCC 721

followed by this Court in Hans Raj Sharma Vs. State Govt. of NCT of Delhi

175 (2010) DLT 446 and Sanjiv Vs. State 164 (2009) DLT 459.

3. Learned APP relying upon Jagjit Singh Vs. State of Punjab AIR 2009

SC 2133 contends that in almost similar facts where there was a demand of

Rs.1,00,000/- for purchasing a new house, the Hon'ble Supreme Court

upheld the judgment of conviction by the High Court on the ground that the

same would fall within the definition of dowry demand. Reliance is further

placed on Prem Kanwar Vs. State of Rajasthan AIR 2009 SC 1242. The

testimony of PW1 the brother of the deceased is amply clear as he has stated

that 4 days prior to her death, the deceased had made a telephonic call to him

and stated that she was being beaten. On speaking to the Appellant, the

Appellant demanded Rs. 50,000/- for business. Besides less than a month

prior to this incident there was a specific demand of fridge which PW1

bought and gave to the Appellant. Hence no case for interference is made

out and appeal be dismissed.

4. I have heard learned counsel for the parties. Briefly the case of the

prosecution on the basis of the statement of PW1 Jitender Kumar Rajput is

that his sister Geetanjali was married to the Appellant on 16 th May, 2005 as

per Hindu rites. The parents of PW1 and the deceased had passed away at an

early age and they were brought up by their uncles Rajender Kumar,

Surender Kumar, Gyanender Kumar, Narender Kumar and Dheerender

Kumar. It is stated that in the marriage of Geetanjali dowry articles were

given as per their capacity. Initially the deceased lived with the Appellant in

the village Makhana, District Bullandshehar, U.P. for two months and

thereafter came to Delhi in a tenanted house C-83, Master Gali, New Ashok

Nagar. When PW1 went on the festival of Raksha Bandhan, the deceased

told him that the Appellant used to consume liquor, came late along with

other boys, compelled her to prepare food for them and used to abuse and

beat her. When PW1 tried to make the Appellant understand, the Appellant

demanded a fridge by saying that they had to drink hot water or take cold

water from the neighbours. On the demand of the Appellant PW1 purchased

a fridge from the market and gave it to him. On 12 th September, 2005 his

sister made a telephone call to him and told that her husband was beating

her. When PW1 spoke to the Appellant on phone and asked for the reason

for beating his sister, the Appellant demanded Rs. 50,000/- for running a

business. PW1 assured the Appellant for arranging the money within a

week, however unfortunately on 16th September, 2005 he came to know that

his sister had committed suicide.

5. Learned counsel for the Appellant has laid a lot of stress on the fact

that the testimony of PW1 is not supported by the uncle Rajender Kumar

PW5 who in fact was the one who brought up the deceased and her brothers

after the death of their parents. No doubt PW5 has not supported the case of

the prosecution and has been declared hostile. However, a perusal of the

statement of PW5 shows that in cross-examination on behalf of the State he

has admitted the fact that PW1 told him that the Appellant demanded a

fridge by saying that they had to drink hot water or take cold water from the

neighbours and on the demand of the Appellant his nephew PW1 purchased

a fridge from the market and gave it to the Appellant. Further the version of

PW1 is corroborated by PW2 Bijender Kumar the other brother of the

deceased who stated that the deceased had informed his brother i.e. PW1

regarding the torture at the hands of the Appellant.

6. On the facts proved in the present case the following ingredients of the

offence under section 304B Indian Penal Code, 1860 stand proved beyond

reasonable doubt which are not even disputed by the learned amicus curiae;

firstly that the deceased died within 7 years of the marriage and secondly

that the death was unnatural. The only issue raised is that even if accepting

the evidence of PW1 on its face value which is otherwise not corroborated,

at best it was a demand made but not in relation to marriage and thus could

not be said to be a demand for dowry. I am afraid the contention of the

learned counsel for the Appellant cannot be upheld. This Court while

dealing with a similar situation in Hans Raj (supra) held that demands of

articles like T.V., fridge etc. can be easily said to be in relation to demand of

dowry. In the case in hand less than a month before the death of the

deceased the Appellant demanded a fridge which demand was fulfilled by

PW1. Merely because the receipt of the fridge purchased was not exhibited

would not be sufficient to discard the testimony of PW1. Further as regards

the demand of Rs.50,000/- for running the business, learned counsel for the

Appellant has placed reliance on Appasaheb. In Appasaheb the Hon'ble

Supreme Court was dealing with a case of harassment and beating to the

deceased wherein the witnesses stated that the deceased used to complain

that she was subjected to harassment by the Appellants therein on account of

some domestic reasons and when the domestic reasons were asked it was

stated that she was asked to bring Rs.1000-1200/- for expenses and for

manure as the Appellant therein had no sufficient money. The Apex Court

clearly noted that witnesses did not state that the cause for ill-treatment was

a demand for money and a consequent beating.

7. In the case in hand when PW1 spoke to the deceased on the telephone

on 12th September, 2005 she specifically stated that she was being beaten

and when PW1 asked for the reasons from the Appellant he demanded a sum

of Rs. 50,000/- for running the business. It would be thus apparent that not

only money was demanded but the deceased was beaten while demanding

the said money. The Hon'ble Supreme Court while dealing with a similar

case in Jagjit Singh (supra) wherein the allegations were for demand of

Rs.1,00,000/- for purchase of a new house upheld the judgment of the High

Court relying upon the decision in Appasaheb (supra). Further in Prem

Kanwar (supra) the Apex Court considered the necessity for insertion of the

two provisions i.e. Section 304B IPC and Section 113B in the Evidence Act

and it was held that keeping in view the impediments in the pre-existing law

in securing evidence to prove dowry related death, the Legislature in its

wisdom inserted a provision relating to presumption of dowry death on proof

of certain essentials. In the present case on the facts of the case there is no

dispute that soon before death the Appellant was meted out of the cruelty

and the only dispute relates to whether that cruelty was in relation to simple

demand of Rs. 50,000/- for running the business or the same would be called

a dowry demand. In Prem Kanwar (supra) it was held:

"9. The offence alleged against the accused is under Section 304B IPC which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any

agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry."

8. It is thus clear that to find out whether the particular demand was a

demand simplicitor or a dowry demand, inference has to be drawn from the

circumstantial evidence. In the present case less than a month ago the

Appellant demanded a fridge and then within one month he demanded Rs.

50,000/- for running the business and assaulted the deceased in relation

thereto. The prosecution having discharged the initial burden of showing

that the same was in relation to the dowry and that demands were made in

quick succession, the presumption stood raised against the Appellant which

it failed to discharge under Section 113B. The Appellant failed to show that

the demand made was as a loan and not a demand in relation to dowry. Even

in the question put to the Appellant under Section 313 Cr.P.C. he has stated

that the evidence of PW1 was false and a bunch of lies and no material has