Delhi High Court
Shiv Kumar & Ors. vs State on 23 January, 2014
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 295/2000
SHIV KUMAR & ORS. ..... Appellants
Through: Mr. L.B. Rai and Ms. Preeti
Bhandari, Advocates
versus
STATE ..... Respondent
Through: Mr. Ravi Nayak, Additional Public
Prosecutor for respondent-State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
ORDER
% 23.01.2014
Appellants are the father-in-law, brother-in-law and husband of
deceased-Alkesh, who had died unnatural death by hanging in her
matrimonial house on 20th December, 1997 i.e. within one year and four
months of her marriage with appellant-husband.
Appellants were tried for the offences under Section 304-B/498-
A/34 of IPC in FIR No.389/1997 registered at P.S. Anand Parvat, Delhi
and vide impugned judgment of 5th May, 2000, they have been convicted
for the offence of dowry death and of subjecting deceased to cruelty
whereas their co-accused Smt. Jhabbo Devi (Bua of husband of deceased)
and Babli (nand of deceased) have been declared as Proclaimed Offender.
Vide impugned order of even date, appellants have been sentenced to
rigorous imprisonment for seven years each with fine for committing the
offence of dowry death and for the offence under Section 498-A of IPC,
CRL.A. 295/2000 Page 1
they have been sentenced to rigorous imprisonment for two years each
with fine. Both the sentences were ordered to run concurrently.
The factual background of this case as noticed by trial court in the
impugned judgment is as under: -
"The short facts of the case as per the prosecution are
that on 29.12.97, Ran Singh Chauhan r/o Village Nagaria of
District Mainpuri, U.P. aged about 50 years came to P.S.
Anand Parbat and got recorded his complaining statement
that he was the father of Alkesh who was married to Raj
Kumar accused on 22.4.96 and at the time of marriage, he
has given dowry and other articles as per his capacity.
According to Ran Singh Chauhan, after the marriage, when
his son Sudesh came to Delhi at Prem Nagar at the house of
the accused persons for taking back his sister Alkesh, at that
time, Kashi Singh, father-in-law of Alkesh and Jhaboo Devi
(P.O.), Bhua of Raj Kumar told his son Sudesh that in the
marriage, the wrist watch and taper recorded since have not
been given, as such, Alkesh would be sent after these articles
are delivered. Sudesh assured the accused persons that
when the accused would come for taking back his sister, all
these articles would be given to them. According to Ran
Singh Chauhan, when Raj Kumar accused came to take back
Alkesh, he was given the wrist watch and the tape recorder.
It is alleged that thereafter the demand for dowry started
increasing and the accused persons asked for colour T.V.
and Gas Cylinder. It was also alleged by Ran Singh that his
daughter Alkesh was harassed and was given beating by the
accused persons. Due to the harassment of the accused
persons, his daughter Alkesh wrote a letter to him and
thereafter he sent his son again to the house of the accused
persons and his son after consoling them came back to his
house and told Ran Singh that in-laws of Alkesh were greedy
CRL.A. 295/2000 Page 2
and their demand should not be fulfilled, otherwise they
would raise more demands. According to Ran Singh, he
wrote several letters to the in-laws of Alkesh for enquiring
about her well being, but none of the letters were passed on
by the accused persons to his daughter. According to Ran
Singh, his son Sudesh came to the house of in-laws of Alkesh
several times and every time he used to complain that the
accused persons namely Raj Kumar-husband, Kashi Singh-
father-in-law, Jhabbo Devi (Phuphia Saas) and Babli-
Nanad and Devar-Pappu were all harassing Alkesh. In the
mid of July, a letter without any postage stamp was received
by Ran Singh in which his daughter has stated that due to
the atrocities and harassment of her in-laws, she would be
committing suicide by hanging herself on 20.7.97.
Immediately, on receipt of this letter, Ran Singh Chauhan
sent his son Sudesh to the house of the accused persons and
to bring back Alkesh from the house of the in-laws on which
the accused persons are alleged to have told Sudesh that
Alkesh would be sent on the occasion of Bhaiya Dooj and
when Sudesh came at the time of Bhaiya Dooj, Alkesh was
not sent saying that accused Babli was to be married in the
month of November and Alkesh would be sent after the
marriage. According to Ran Singh Chauhan, thereafter he
did not get any information about his daughter. On
24.12.97 on receipt of information from a relation regarding
the death of Alkesh hearing which he immediately rushed to
Delhi and came to know about the death of Alkesh. Ran
Singh expressed his doubt that her daughter Alkesh had not
died due to any stomach problem but all the five accused
persons were responsible for her death as she was being
harassed by all the accused persons on account of demand
of dowry and she had committed suicide by hanging herself
due to the harassment of the accused persons. According to
CRL.A. 295/2000 Page 3
Ran Singh Chauhan, his daughter Alkesh was cremated even
without any information to him."
Trial court has relied upon the deposition of deceased's father-Ran
Singh Chauhan (PW-6) and deceased's brother-Sudesh Kumar (PW-7) to
hold appellants guilty. In support of the plea of innocence raised by
appellants before trial court, they had got examined two witnesses in their
defence whose testimony has been rejected by trial court. While
accepting the prosecution case, appellant stand convicted and sentenced
as noticed herein above.
With the assistance of learned counsel for appellants and learned
Additional Public Prosecutor for respondent-State, the evidence on
record, the impugned judgment and the material on record have been
perused. At the outset, it was urged by learned counsel for appellants that
the offence of dowry death is not proved. To dislodge the ocular version
put forth by father and brother of the deceased, learned counsel for
appellants had drawn the attention of this Court to the letters of 8 th July,
1997 (Ex.P-1) and 20th December, 1997 (Ex.P-2) written by deceased. At
this stage, it would be worthwhile to refer to these letters. The official
transliteration of letter of 8th July, 1997 (Ex.P-1) reads as under: -
08/07/97
"Adarniye Papaji wa mummyji ko sadar Namaste. Maloom ho
papa ye mera aakhiri patr hai. Papa main bahut pareshaan
hoon. Papaji patr humne to 2-3 likhe magar unhone daala
nahi. Kehte hain ki wo sab pareshaan honge aur kuch karte
nahi. Papa, mujh par jhoote ilzaam bahot lagate hain. Buaji,
bua ne mera parivaar bhi humse chheen liya hai. Papa meri
bahut beizzati hoti hai. Papa, papa aaj ki taareekh men, main
CRL.A. 295/2000 Page 4
clear baat karungi. Agar wo maan gaye to main rahungi, agar
na maane to, papa, nau (9) tareekh (09.07.1997) ko faansi
laga kar apni jaan de rahi hoon. Papa mere marne ke baad
bua ki wo haalat karna ki zindagi tak yaad rakhe. Uske baad
ghar ke ek bhi sadasya ko nahi chhorna chahe koi bhi ho.
Papa police se wo dande parvana ki zindagi bhar jail ki roti
khayen. Papa main bahut pareshaan hoon.
Papa yahan kisi ne jhoot ye Ye marriage hi kyun ki?
kaha ki unki badi ladki ghar Mere paas lifafa nahi, papa
hi rehti hai, uske saas sasur mere saath wo ho raha hai
ne chhor diya. Papa yeh jo hum sahan nahi kar paa
patr padte hi aana. Dus din rahe hain.
ka intezaar karungi. Papa, Sd/-
bua kehti hai ki mai badla le Alkesh Chauhan
kar rahungi, jo baraat men (In Hindi)
hua, papa yahan aise mat Jaan de rahi hun bua ke
aana police ke saath. peechhe.
Jaan ki wajah bua.
Sd/-
Alkesa Chauhan
(In Hindi)
Papa yahan ladke ladkiyan sab love marriage karte hain. Ye
log gaon men munh dikhanae ke laayaque nahi hain."
The official transliteration of letter (Ex.P-2) written by deceased on
the day of incident i.e. 20th December, 1997 reads as under: -
Date 20/12/97
CRL.A. 295/2000 Page 5
"Adarniye Papaji va mummyji ko sadar pranaam svikaar
ho, aur sab kya likhun? Papa meri kismat hi bekar hai jo
mujhe kisi ka pyaar nahi mila. Papa ye log mujhe zabardasti
marna chahte hain. Papa agar mujhe kuchh hota hai to
papa va sabhi bhaiyon aap log inko mat chorna. Sara
parivaar jail me hona chahiye tabhi hume tasalli milegi.
Papa in logon ki wo haalat karna jo kabhi kisi ne nahi ki ho.
Khaaskar bua aur babli ki. Ye meri bua ek ki dus jorti hai.
Ye sabki baton me aakar na jaane kya kya kehte hain mujhse
sahan nahi hota hai. Ghalat baat mujhse sahan nahi hoti
hai. Papa, ye log bahut shareef bante hain lekin ye log bahut
neech hain. Papa is ghar me koi shareef nahi hai, sivai inke
lekin ye kaha suni par aa jaate hain. Papa ye bhi barang
hain. Kyunki mere paas lifafa nahi hai. Papa men bahut
majboor hoon. Papa chhorna mat. Shaadi February men
hai. Ye shaadi me hi tumhe sabhi ko pakadna hai. Jija se keh
kar kaam karna. Unke kuchh aadmi honge. Papa in logon ko
aisa barbaad karna ki ye log kahin ke nahi rahain. Papa
shaayad aaj meri last zindagi ka din hai. Papa, jo meri
ichha hai wo karna zarur. Tumhari beti Alkesh urf Sunita
Chauhan.
Sd/-
(Md. Heshamuddin)
Senior Judicial Translator"
After having heard both the sides and on scrutiny of the entire
evidence on record, I find that though the substratum of the prosecution
case stands firmly established from the evidence on record, but what is
required to be seen is that before conviction for a serious offence of
dowry death is recorded, whether the necessary ingredient of "deceased
being subjected to cruelty on account of not fulfilling the dowry demands
CRL.A. 295/2000 Page 6
soon before her death" is established or not. Apex Court in its recent
decision in Surinder Singh v. State of Haryana 2013 (13) SCALE 691 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 on account of dowry death. 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 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.
CRL.A. 295/2000 Page 7
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.
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."
The startling feature of the instant case is that trial court has
preferred to rely upon ocular version of this incident while ignoring the
documentary evidence, which was available to trial court in the shape of
letters (Ex.P1 & P-2) of deceased. In doing so, trial court has gravely
erred. A bare perusal of the aforesaid letters (Ex.P1 & P-2) of deceased
makes it abundantly clear that deceased was upset not because of
harassment being meted out to her for not fulfilling dowry demands or on
account of bringing insufficient dowry but because of the persistent
interference in her matrimonial life by Bua of the husband of deceased.
CRL.A. 295/2000 Page 8
On perusal of the aforesaid letters (Ex.P1 & P-2) of deceased, I
find no hesitation in discarding the ocular version of this incident put
forth by father and brother of deceased. In the face of the letters (Ex.P1 &
P-2) of deceased, though the conviction of appellants for the offence of
dowry death is rendered unsustainable, but on the basis of afore-referred
letters, appellants deserve to be convicted for the offence under Sections
306/34 of IPC.
Consequentially, this appeal is partly allowed and the conviction of
appellants for the offence under Sections 304-B/34 of IPC is altered to
one under Sections 306/34 of IPC. On the quantum of sentence, it appears
from the record of this case that appellants-husband and brother-in-law of
deceased have remained behind bars in this case for nearly three years
and father-in-law of deceased has also remained behind bars for about 2
½ years. Appellants have faced the agony of trial and appeal proceedings
since the year 1997 i.e. for a period of 16 years. In the face of the
evidence on record and the facts of this case, the substantive sentence
awarded to appellant stands reduced to the period already undergone by
them.
To the afore-noted extent, this appeal is allowed.
(SUNIL GAUR)
JUDGE
JANUARY 23, 2014
s
CRL.A. 295/2000 Page 9
