Chander Kali Singh & Ors. vs State
2014 Latest Caselaw 213 Del

R-54
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A. 487/2000
       CHANDER KALI SINGH & ORS.                  ..... Appellants
                    Through: Mr. K.B. Andley, Sr. Advocate
                               with Mr.M. Shamikh, Advocate
                    versus
       STATE                                      ..... Respondent
                    Through: Mr.Vinod Diwakar, Additional
                               Public Prosecutor for Respondent-
                               State
       CORAM:
       HON'BLE MR. JUSTICE SUNIL GAUR
                    ORDER

% 10.01.2014

Appellants are the parents-in-law and husband of the deceased, who have been convicted and sentenced for the offence of dowry death vide impugned judgment and order which are under challenge in this appeal.

The facts of this case already stands noticed in the impugned judgment. Suffice it would be to note that appellant-husband was married with deceased on 27th November, 1991 and within two years of the marriage, wife of appellant-husband had died unnatural death in her matrimonial house on 22nd August, 1992. On the statement of father of the deceased, the law was set into motion. However, before father of the deceased could be cross-examined, he had left this world. Nevertheless, there is evidence of mother (PW-2) and brother (PW-8) of the deceased on its strength conviction for the offence of dowry death has been recorded by trial court. From the medical evidence, it stands proved that

CRL.A. 487/2000 Page 1 deceased had committed suicide by burning herself in the matrimonial house. Copy of postmortem report is on record as PW-9/A. Appellants in their statement under Section 313 of Cr.P.C. have denied the prosecution case and had alleged false implication. In their defence, appellants had got examined two witnesses who are their neighbourers.

The finding returned by trial court to convict appellants reads as under: -

"It has unanimously been established by all the three prosecution witnesses Maya Devi, Devender and Narayan Singh that Sheela was being taunted by her parents-in-law for not bringing gifts when she returned after her stay at her parents house and this was customary thing. We can take judicial notice of the facts that in this part of India and in the brotherhood of the families involved in the case, it is indeed customary for the daughters-in-law to bring some sweets for in-laws family and some sarees etc. for the parents and some articles for the husband. It is, therefore, most natural that Sheela must have suffered acutely on the taunting on this count."

At the hearing of this appeal, the impugned judgment was assailed by learned Senior Counsel for appellants by contending that purported annoyance shown by appellants on account of deceased not bringing gifts upon her return to her matrimonial home cannot by any stretch of imagination be treated as such cruelty to record conviction under Section 304-B of IPC. It was asserted on behalf of appellants that before statutory

CRL.A. 487/2000 Page 2 presumption of dowry death can be raised against respondents, prosecution must establish that "soon before her death" deceased was subjected to cruelty or harassment in connection with any demand of dowry.

According to learned Senior Counsel for appellants, afore-referred necessary ingredient is not established from evidence on record and so, conviction of appellants for the offence under Section 304-B of IPC is vitiated. It was pointed out on behalf of appellants that first appellant i.e. mother-in-law of deceased and third appellant i.e. husband of deceased have already undergone substantive sentence of more than four years and second appellant i.e. father-in-law of deceased has undergone substantive sentence of three years and so, it is submitted that even if appellants are convicted for the offence under Sections 306/34 of IPC, still their substantive sentences deserve to be reduced to the period already undergone by them as no minimum sentence has been provided for the offences in question.

Learned Additional Public Prosecutor for respondent-State supported that impugned judgment and had submitted that necessary ingredient of "soon before her death" is a relative term and since deceased had died before celebrating her second marriage anniversary, therefore, the cruelty meted out to her on account of dowry demands brings the offence within the ambit of dowry death. To contend so, reliance is placed upon Apex Court decision in Surinder Singh v. State of Haryana 2013 (13) SCALE 691.

Both sides have been heard and with their assistance, evidence on record has been scrutinized and thereupon, it becomes evident that

CRL.A. 487/2000 Page 3 incomplete evidence of father of deceased cannot be relied upon and trial court has erred in doing so. However, from the deposition of mother (PW-

2) of deceased, it appears that apart from taunts for not bringing sufficient dowry, deceased, a week prior to her death, had complained about behavior of appellants and had demanded some money to be delivered to accused-persons. However, this witness (PW-2) does not disclose as to what was the harassment or mis-behaviour meted out to her a week prior to this incident and how much money was demanded by appellants. What had happened on that day of the incident as disclosed by appellant-Om Parkash to this witness i.e. mother (PW-2) of deceased noticed in her deposition reads as under: -

"On that day, on the death of Sheela, Accused Om Parkash came to our house in the morning at 7.30 A.M. and informed that there was a fight between deceased Sheela and Sudarshan accused."

This witness (PW-2) does not disclose in her evidence as to whether she had inquired from appellant-Om Parkash as to why appellant-Sudershan and deceased had fought on the day of incident. It has come in the evidence of mother (PW-2) of deceased that deceased had told her that appellant-Sudarshan was having illicit relations with a girl in neighbourhood and she had ignored her complaint and had asked her to live peacefully with her husband. This appears to be a triggering factor which led to appellant-Sudarshan‟s wife to commit suicide. Regarding the demand of dowry, mother (PW-2) of deceased had made improvement in her deposition and she had been confronted with it. What

CRL.A. 487/2000 Page 4 she had deposed in this regard, reads as under: -

"I had stated in my statement at the SDM office that accused persons were demanding motorcycle and Rs.10,000/- from my daughter (Vol. Ex.PW2/A) where it has not been recorded." .

Brother (PW-8) of deceased is forthright in his deposition. He has deposed in no uncertain terms that "after the marriage, after a short duration, she started complaining that Sudarshan was having an affair with another girl for which he was harassing Sheela."

It has also come in the deposition of brother (PW-8) that appellant- Sudarshan was confronted about his having affair with some lady, and he had denied. Appellant had allegedly assured brother (PW-8) of deceased that he would keep his wife well. Although mother (PW-2) of deceased has disclosed in her evidence that Manoj, younger brother of appellant- Om Parkash, had told her that "Bhabhi Maar Di, Mausiji", but she stands contradicted by brother (PW-8) of deceased, who had stated in his evidence that what was disclosed by brother of appellant-Sudarshan was "Bhabhi jal ke marr gaye hai".

During the course of hearing, attention of this Court was drawn by learned Additional Public Prosecutor for respondent-State to the deposition of brother (PW-8) of deceased to point out that he had volunteered that appellants used to harass deceased and torture her to bring more dowry and she had complained about it to him. Upon reading deposition of brother (PW-8) of deceased as a whole, I find that aforesaid volunteered portion stands contradicted by this witness (PW-8) in these

CRL.A. 487/2000 Page 5 words: -

"I did not state in my statement before the SDM regarding any specific demand on specific date nor I stated so in my statement before the police."

Apex Court in its recent decision in Surinder Singh (supra), has reiterated that before statutory presumption under Section 113-B of the Evidence Act can be raised against an accused, it is essential for the prosecution to prove that "soon before the death", deceased was subjected to cruelty. In this regard, the pertinent observations made by Apex Court in Surinder Singh (supra) are as under:-

"Section 113B of the Indian Evidence Act, 1872 states that when the question is whether a person has committed the dowry death of a woman, and it is shown that soon before her death such woman has 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.

Section 304B of the IPC states that 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

CRL.A. 487/2000 Page 6 shall be deemed to have caused her death. Thus, the words „soon before‟ appear in Section 113B of the Indian Evidence Act, 1872 and also in Section 304B of the IPC. For the presumptions contemplated under these Sections to spring into action, it is necessary to show that the cruelty or harassment was caused soon before the death. The interpretation of the words „soon before‟ is, therefore, important. The question is how „soon before‟? This would obviously depend on facts and circumstances of each case. The cruelty or harassment differs from case to case. It relates to the mindset of people which varies from person to person. Cruelty can be mental or it can be physical. Mental cruelty is also of different shades. It can be verbal or emotional like insulting or ridiculing or humiliating a woman. It can be giving threats of injury to her or her near and dear ones. It can be depriving her of economic resources or essential amenities of life. It can be putting restraints on her movements. It can be not allowing her to talk to the outside world. The list is illustrative and not exhaustive. Physical cruelty could be actual beating or causing pain and harm to the person of a woman. Every such instance of cruelty and related harassment has a different impact on the mind of a woman. Some instances may be so grave as to have a lasting impact on a woman. Some instances which degrade her dignity may remain etched in her memory for a long time.

CRL.A. 487/2000 Page 7 Therefore, „soon before‟ is a relative term. In matters of emotions we cannot have fixed formulae. The time-lag may differ from case to case. This must be kept in mind while examining each case of dowry death."

Applying the afore-noted dictum of the Apex Court to the facts of the instant case, I find that although there is scant evidence on record that deceased used to be harassed for not bringing insufficient dowry, but there is no clinching evidence on record to successfully prove that "soon before her death" she was subjected to cruelty on account of not bringing sufficient dowry. What can be reasonably attributed to appellants is that they were annoyed with deceased for bringing insufficient dowry but it does not stand conclusively proved that deceased was harassed „soon before her death‟ by appellants for demand of more dowry or lack of it. Appellants had expressed annoyance as deceased had not brought gifts when she returned to matrimonial home, but it is not proved that it had happened „soon before her death‟. Thus, it does not call for conviction of appellants for the offence of dowry death.

It is not a case of prosecution that on account of dowry demand, deceased was subjected to such cruelty within a month or so of this incident to impel her to end her life. Therefore, in the considered opinion of this Court, the offence of dowry death is not made out and the offence committed by appellants come within the ambit of Section 306 of IPC as on the day of the incident, a quarrel had taken place between appellant- husband and deceased. Most probable reason for quarrel appears to be the illicit relations of appellant-husband with another lady.

CRL.A. 487/2000 Page 8 In view of foregoing narration, conviction of appellants for the offence of dowry death is set aside and they are convicted for the offence under Sections 306/34 of IPC. As per the Nominal Roll of appellants, first and third appellant have already remained behind bars for more than four years whereas second appellant has remained behind bars for about three years.

In the facts and circumstances of this case, ends of justice would be met if the substantive sentence is reduced to the period already undergone by them. It is ordered accordingly.

This appeal is allowed to aforesaid extent.

                                                          (SUNIL GAUR)
                                                             JUDGE
         JANUARY 10, 2014
         s




CRL.A. 487/2000                                                         Page 9