Yogesh Kumar & Ors. vs State
2014 Latest Caselaw 1129 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Reserved on: 19.02.2014
%                                             Date of Decision: 04.03.2014

+                             Crl. A. No.259 of 2010
YOGESH KUMAR & ORS.                                   ....Appellants
            Through:                 Mr. O.P. Wadhwa, Adv.

                                     Versus

STATE                                                 ....Respondent
                         Through:    Ms. Ritu Gauba, APP.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                    JUDGMENT

V.K.JAIN, J.

On 19.4.2006, Police Control Room was informed that a girl had

hanged herself in House No.56, Gali No.10, Sitapuri. The information,

when conveyed to Police Station Dabri, was recorded there vide DD

No.28A, a copy of which was given to ASI Surender Singh of the said

Police Station for investigation. When the police officer reached the

aforesaid spot, he found a young girl hanging with a ceiling fan, using

her chunni for the purpose. The concerned SDM was called to the spot

and he recorded the statement of Ramesh Kumar, who is the father of

the deceased and Rajesh Kumar, who is her paternal uncle. Ramesh

Kumar told the SDM that his daughter Mamta was married to Yogesh

Kumar (appellant before this Court) on 23.4.2004 and there was no

demand of dowry in the marriage. When the SDM asked him as to

whether his daughter had been subjected to cruelty or any kind of

harassment in the house of her in-laws, he alleged that Sheela Devi,

mother-in-law of his daughter, Yogita, her married sister-in-law, his

son-in-law Yogesh and Vijender Singh, father of Yogesh had started

demanding motorcycle and Rs.50,000/- in cash in dowry from him just

one week after the marriage and they used to taunt and beat his

daughter, besides quarrelling with her and harassing her. He claimed

that he gave Rs.5,000/- to his son-in-law, one week after marriage,

followed by Rs.20,000/- to his son-in-law and his sister after about two

(2) months, when they demanded dowry from him. He also claimed that

on 12.4.2006, he had given Rs.30,000/- in cash as well as gold chain and

jhumki weighing 15 grams to the parents-in-law of his daughter so that

she is not maltreated and is given due respect. However, he did not

fulfill their demand for motorcycle, which had resulted in dispute

between them. He further alleged that after a child was born to his

daughter on 29.3.2005, she lived with him for about five (5) months and

was not willing to go to her matrimonial home due to harassment by in-

laws over demand of dowry and apprehending maltreatment in the said

house, but on account of the intervention of respected members of the

society, he had sent her back to the matrimonial home on 1.9.2005,

hoping that better sense would prevail with her in-laws and they would

improve their behaviour. He also alleged that his daughter Mamta had

complained to him with respect to maltreatment by her in-laws, through

letters sent by her.

2. The paternal uncle of the deceased told the SDM that since

marriage, the in-laws of Mamta used to quarrel with her, besides

demanding dowry and harassing her. He also claimed that Mamta used

to weep whenever she visited him. He also alleged that though he had

tried to meet the in-laws to make them see reason, there was no

improvement in their behaviour and they used to harass Mamta and

subject her to cruelty, by beating her on account of demand of dowry.

The appellants Yogesh Kumar, Vijender, Sheela Devi and Yogita,

who are the husband, father-in-law, mother-in-law and sister-in-law of

the deceased were charge-sheeted under Sections 498A and 304B of

IPC. Since all of them pleaded not guilty to the charge, as many as

fifteen (15) witnesses were examined by the prosecution. Two

witnesses were examined in defence.

3. Vide impugned order and judgement all the four appellants were

convicted under Sections 498A and 304B of IPC read with Section 34

thereof. They were sentenced to undergo RI for ten (10) years each

under Section 304B of IPC and RI for three (3) years each and to pay

fine of Rs.5,000/- each or to undergo SI for six (6) months each under

Section 498A thereof. Being aggrieved from their conviction and the

sentence awarded to them, the appellants are before this Court by way of

this appeal.

4. Shri Ramesh Kumar, father of the deceased came in the witness

box as PW3 and stated that after 5-7 days of the marriage, the accused

persons started harassing his daughter on account of their demand of

dowry and after 8-9 days Yogesh took Rs.5,000/- from him. After about

20-25 days of marriage, his daughter sent him letter, through her

maternal uncle, disclosing therein that the accused were harassing her on

account of demand of Rs.2 lac in cash and a motorcycle. She sent yet

another letter after about one month disclosing therein that the accused

were asking her to sell her share in the plot and handover an amount of

Rs.5 lac to them besides a motorcycle. He claimed that after the said

letter the accused - Yogesh and his sister Yogita came to their house

and he gave Rs.20,000/- to them. He further stated that whenever the

deceased came to their house, she complained that her father-in-law and

mother-in-law used to harass her, abuse her and give beatings to her.

Though she was unwilling to return to matrimonial home they used to

send her back making her understand that with the passage of time

everything would be settled. He further stated that on discharge of her

daughter from the hospital on 30.3.2005, they brought her to their house

and sent her back to the matrimonial home on 1.9.2005, on the

intervention of respectables from the society. However, there was no

change in the attitude of the accused persons who continued to give

beatings to his daughter. He further claimed that on 5.4.2006, the

deceased came to their house at about 7 am and they found that she had

been given severe beatings. There were blue marks on her body at that

time. She told them that the accused were demanding Rs.5 lac and a

motorcycle from them and were harassing her for not bringing the

chhuchhak (customary gifts given at the time of birth of a male child)

after birth of son. She remained at their house for about 6-7 days.

According to the witness on 12.4.2006, he along with his brother -

Rajesh went to the matrimonial home of the deceased and gave

Rs.30,000/- besides a gold chain for the child, a pair of golden and silver

chand and suraj, silver ornaments, 11 pair of clothes for the child and

other articles to the accused persons who complained as to why he had

not brought ornaments for their daughter. An altercation took place on

this issue and he asked the accused persons to give some time to meet

their demands. They, however, were ready to quarrel on this issue. The

witnesses identified Ex.PW3/P 1 to P2 as the letters he had received

from his daughter.

5. PW7 - Rajesh is the brother of the complainant. He stated that

within one week of marriage of Mamta, her in-laws started harassing her

for inadequate dowry and demanded a motorcycle besides Rs.5 lac in

cash. The father of Mamta gave Rs.5,000/- in cash to the accused

Yogesh. He further stated that whenever the deceased visited them she

used to tell him and his wife that the accused persons were harassing her

and giving her a lot of beatings on account of insufficient dowry. He

further stated that after birth of the child of Mamta they brought her to

their house and she remained there for about six months. It was only on

repeated requests that she was taken by her husband. He claimed that

even thereafter the accused persons did not improve and repeatedly

harassed Mamta. He also stated that on 5.4.2006 when the deceased

came to the house of his brother, she had bruises all over her body and

she stated that she had been asked by the accused persons to bring

motorcycle besides Rs.5 lac and chuchak. He claimed to have gone to

the matrimonial home of the deceased along with his brother and

deceased on 12.4.2006 and giving a lot of presents including ornaments

and clothes of child besides Rs.30,000/- in cash to the accused persons.

According to him, the accused persons were not satisfied with the

presents given to them and were demanding motorcycle and cash of

Rs.5 lac.

6. PW13 - Smt. Kamla Devi is the mother of the deceased. She

stated that after about eight days of marriage, the accused persons

started harassing her daughter over dowry and demanding a motorcycle,

chain and Rs.50,000/-. She claimed that after about ten days, her

husband gave Rs.5,000/- to the accused Yogesh and thereafter he gave

Rs.20,000/- to him and his sister Yogita, but the accused persons

continued to harass her daughter by beating and harassing her. She

further stated that after delivery of a child to Mamta, the accused

persons left her alone there and they brought her to their house.

Thereafter, the accused persons demanded plot and a sum of Rs.5 lac in

cash. A Panchayat was then organized by them to persuade the accused

and take the deceased to their place. After much persuasion, the matter

was resolved and they sent the deceased along with them. However,

after a few days, she was again brought to their house and left there.

Thereafter, her husband and his younger brother took the deceased along

with chuchak, Rs.30,000/- in cash, a gold chain and clothes for the

accused persons, which were handed over to the accused Vijender and

his wife. The accused persons, however, were still not satisfied and

insisted on their earlier demand of Rs.5 lac and a plot.

7. PW10 - Manoj Kumar stated that after two months of her

marriage when he went to the matrimonial house of Mamta to deliver

some clothes given by her father, she gave him a letter which he handed

over to her father.

PW11 - Shri Vir Pal is the maternal uncle of the deceased. He

stated that after 20-25 days of marriage of Mamta, he visited the house

of her in-laws and at that time she gave him a letter which he handed

over to her father.

8. In their statement under section 313 Cr.P.C., all the appellants

denied the allegations against them and claimed to be innocent.

9. DW1 - Suraj Bhan Garg stated that on 20.2.2005, the uncle of the

deceased came to the house of the accused person at the instance of the

deceased who at that time stated that her father wanted to take her back

to his house so as to keep Yogesh as gharjawai. According to him, this

was resisted by the deceased, who wanted to stay with her in-laws.

According to him on 30.3.2005, the accused Bijender informed him that

the parents of the deceased were insisting to take her to their house. He

thereupon went to DDU Hospital and tried to make them understand,

but they did not agree and took her with them. He further stated that in

June, 2005, a meeting took place in the house of Rajesh in Sagarpur and

in that meeting father of the deceased acknowledged receipt of financial

assistance amounting to Rs.8500/- from the accused persons and

returning the said amount. He also stated that the house of accused

Bijender is a two-storied house in which Yogesh along with his family

were residing on the ground floor whereas Bijender and his family were

residing on the first floor.

DW2 HC Shiv Kumar proves the copy of DD No.64 on

22.5.2005, Ex.DW2/A.

10. In order to prove the charge under Section 304B of IPC, the

prosecution is required to prove that (a) the victim died within seven

years of marriage; (b) she was subjected to cruelty or harassment soon

before her death; (c) such cruelty and harassment was for dowry. The

expression "soon before her death" has not been defined in the Indian

Penal Code and, therefore the Court is required to analyze the facts and

circumstances leading to the death of the victim and then decide whether

there was any proximate connection between the demand of dowry or

the act of cruelty or harassment and the death of the victim.

In Kamesh Panjiyar vs. State of Bihar (2005) 2 SCC 388, the

Apex Court, considering the expression "dowry" inter alia observed as

under:-

"14. The word „dowry‟ in Section 304-B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasion related to dowry. One is before the marriage, second is at the time of marriage and the third „at any time‟ after the marriage. The third occasion may appear to be unending period. But the crucial words are „in connection with the marriage of the said parties‟."

In Bachni Devi vs. State of Haryana 2011 (4) SCC 427, Apex

Court inter alia held that if a demand for property or valuable security,

directly or indirectly, has a nexus with marriage, such demand would

constitute demand for dowry, the cause or reasons for such demand

being immaterial.

In Hans Raj Sharma & Others vs. State Govt. of NCT of Delhi

Crl.A. Nos. 339-41 of 2005, decided on 02.03.2010, this Court, inter

alia, observed as under:-

"If at any time before or at the time of or even during marriage, the parents of a woman or any

other person related or connected to her agree to give some cash, valuable security or property to her husband or in-laws after marriage, that also would be covered within the definition of dowry as the agreement or promise in such a case would be attributable to the marriage or proposed marriage and if there is demand for any cash property, valuable security etc. which is promised, but not given, it would constitute demand for dowry. If the husband of the girl or any other person related or connected to him, demands something from the girl or her parents or any other person related to or connected with her, saying that the article being demanded by them was expected to be given or ought to have been given in marriage, that also, to my mind, would constitute demand of dowry because even though such an article may not have been agreed or promised to be given by the girl or her family members, it might have been in the contemplation of the boy and/or his family members, on account of the expectation that such an article would be given at the time of marriage. Therefore, such demand would be considered to be a demand in connection with the marriage though made after the marriage has been solemnized. Even demand of articles such as T.V., fridge, jewellery, clothes, furniture, etc. which usually are given or expected in marriages in our country, would, considering the objective sought to be achieved by incorporating Section 304-B in Indian Penal Code and enacting Dowry Prohibition Act, 1961 fall within the purview of Section 304-B of IPC. In fact, in Pawan Kr. & Ors. Vs. State of Haryana AIR 1998 SC 958, the Hon‟ble Supreme Court has specifically held demand of T.V., Fridge, etc. though not agreed to be given or promised or even demanded prior to or at the time of marriage, to be a demand for dowry for the purpose of Section 304-B of IPC. If cash or some property, etc. is demanded by the boy or his family

members, after marriage, saying that they were expecting such cash, property, etc. to be given in marriage, and the girl, or her parents or any other person related or connected to her promise to fulfil such a demand, that also may fall within the purview of dowry, as the promise though made after marriage, would nevertheless be referrable to the marriage, having been made with a view to preserve the marriage. But, if the demand is made after marriage and it is in respect of a property or valuable security, which was not demanded, was not expected to be given and also was not in contemplation at any time up to solemnization of marriage, demand of such cash, property or valuable security, etc. cannot be said to be in connection with the marriage and, therefore, would not constitute demand of dowry...

.. The use of the expression „in connection with the marriage of the said parties‟ leaves no room for the interpretation that any and everything demanded after marriage, without anything more, would constitute demand of dowry. Such an interpretation would render the expression „in connection with the marriage of the said parties‟ totally redundant and, therefore, cannot be said to be have been intended by the Legislature. It is settled proposition of law that penal statutes need to be strictly construed and even if two views in the matter are reasonably possible, the interpretation, which would favour the accused, needs to be given by the Courts. No doubt, Section 304-B of IPC is a social legislation aimed at preventing dowry deaths which is a social evil that needs to be eradicated at any cost. It is also difficult to deny that in our society there are demands other than those covered under the definition of dowry are made after the marriage and such demands do result in subjecting the girl to cruelty and/or harassment if she or her parents

or relative are unable to fulfil the demand. Such a demand, if followed by cruelty or harassment would constitute offence punishable under Section 498-A of IPC. But, it is difficult to accept that the demands which are not at all referrable to the marriage, would also constitute dowry demand punishable under Section 304-B of IPC in case the woman is subjected to cruelty or harassment for or in connection with such a demand. The remedy, to my mind, lies in the Legislature stepping in and making even such demands subject matter of offence punishable under Section 304-B of IPC.

In Satvir Singh vs. State of Punjab and Anr. 2001(4) Crimes 45,

the Apex Court, inter alia, observed as under:-

"There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304B should be any property or valuable security given or agreed to be given in connection with the marriage."

11. The first question which arises for consideration in this case is as

to whether the prosecution has been able to prove or not that the letters

Ex.P-1 and P-2 were written by deceased Mamta. The case of the

prosecution, as set out in the chargesheet, is that one of the aforesaid

letters was handed over by the deceased to her maternal uncle Vir Pal,

whereas the other letter was handed over to one Manoj Kumar, who has

been examined as PW-10. However, in his statement to the SDM, the

complainant Ramesh Kumar did not say that the aforesaid letters were

delivered by his daughter to PW-10 Manoj Kumar and PW-11 Vir Pal,

though he did refer to the letters written by the deceased. The aforesaid

letters were seized by the Investigating Officer on 22.05.2006, as would

be evident from the Seizure Memo Ex.PW-3/A. The said letters were

thus handed over to the Investigating Officer more than one month after

the death of the deceased. There is no explanation from the prosecution

as to why the aforesaid letters were not handed over to the Investigating

Officer, soon after his statement was recorded by the SDM. This is not

the case of the prosecution that the receipt of the aforesaid letters was

not known to the complainant at the time his statement was recorded by

the SDM. It has come in the deposition of the Investigating Officer that

in about 1 ½ month, after the death of Mamta, the complainant met him

a number of times. It is strange that despite meeting the Investigating

Officer number of times, the father of the deceased did not bother to

hand over the said letters to him. This creates doubt with respect to the

authenticity of the said letters.

12. When the complainant came in the witness box, he, inter alia,

stated that both the above-referred letters were handed over by the

deceased to her maternal uncle Vir Pal. However, when Vir Pal came in

the witness-box, he stated that only one letter was handed over to him.

The prosecution examined another witness PW-10 Manoj Kumar who

claimed that one of the letter was handed over to him by the deceased

for being delivered to her father. Thus, there is contradiction in the

deposition of the complainant on one hand and the aforesaid witnesses

on the other hand as to whom the aforesaid letters were handed over by

the deceased.

13. The most important circumstance which creates a serious doubt

with respect to the aforesaid letters having been handed over by the

deceased to PW-10 and/or PW-11 is that the deceased as well as parents,

both being resident of Delhi and residing within a distance of about 1 ½

kilometres, as admitted by PW7, in the normal course of human

conduct, instead of handing over letters of this nature to the maternal

uncle or to someone who was not even related to her, the deceased

would just have visited her parents and shared her plight with them.

Alternatively, she would have made a telephone call to her parents,

complaining against the alleged cruelty and/or harassment. This is not

the case of the prosecution that the deceased was not allowed by her in-

laws to come out of the matrimonial home. In fact, according to PW-7

Rajesh Kumar, uncle of the deceased, after marriage, Mamta visited 2-3

times and earlier somebody from her in-laws house used to take her

though subsequently nobody used to come for the said purpose. None

of the witnesses has stated that Mamta had complained to him/her that

she was not allowed to come out of the house to visit her parents or even

to make a telephone call to them. I, therefore, feel that it would be rather

unnatural for the deceased to send letters of this nature through persons,

one of whom was not even related to her, when she could easily have

visited the house of her parents or could have called up either her

parents or any of her relatives to share her misery with them.

14. As far as PW-10 Manoj Kumar is concerned, he was not residing

near the matrimonial home of the deceased, he being a resident of West

Sagar Pur, where the father of the deceased was residing. Therefore, in

the normal course of human conduct, there would be no reason for the

father of the deceased to send her clothes through Manoj Kumar instead

of going there himself or sending a member of his family or a relative

for the purpose.

Moreover, the authenticity of the documents which the

Investigating Officer collected from the father of the deceased and sent

to the handwriting expert for comparison of the letters Ex.P-1 and P-2

with the writings on the said documents Ex.P-3 and P-4, was not

verified by the Investigating Officer during the course of investigation.

Ex.P-3 is an identity card purporting to be issued by Directorate of

Employment to the deceased on 05.02.1999. It purports to be signed by

the Employment Officer on the aforesaid date. The Investigating Officer

did not bother to visit the Employment Exchange to verify from the

officer posted as Employment Officer there on 05.02.1999 that the

aforesaid document bears his signature. Even during the course of trial,

no witness from the Employment Exchange was produced by the

prosecution to prove the authenticity of the aforesaid identity card. It

has come in evidence that Mamta was educated up to 12 th standard

though it is not known in which year she has passed the 12 th standard

examination. However, his qualification in the document is recorded as

X Pass. Similarly in the second document Ex.P-4 which is the format of

an application form purporting to have been submitted by Mamta on

08.07.2002, her qualification has been noted as 10 th standard.

Moreover, I fail to understand how the application form would be in the

house of the candidate since it is required to be submitted to the

prospective employer. Moreover, the aforesaid document Ex.P-4 does

not have any photograph of Mamta affixed on it though there is a space

earmarked for affixing the photograph of the candidate on it. I can

understand a copy of the application form having been kept by the

deceased, but, the original application form is likely to be in the custody

of the prospective employer and not in the custody of the employment

seeker.

For the aforesaid reasons, it would not be safe to rely upon the

letters Ex.P-1 and P-2 for the purpose of conviction of the appellants.

15. The following, as per the evidence produced by the prosecution,

in nutshell, are the allegations of cruelty and/or harassment to the

deceased:-

a. there was demand of dowry and harassment of the deceased 5-7

days after marriage, though the precise demand, alleged to have been

made at that time, has not been specified by the complainant. However,

his brother Rajesh has claimed that there was demand of Rs 2,00,000/-

and a motorcycle. The mother of the deceased, on the other claimed that

the demand was for motorcycle, chain and Rs 50,000/-. However, it has

come in evidence that a sum of Rs 5,000/- was paid by the complainant

to the appellant Yogesh after about 8-9 days of marriage, followed by

payment of Rs 20,000/- to him and his sister appellant Yogita about 20-

25 days thereafter;

b. whenever deceased came to the house of her parents, she used to

complain against her father-in-law and mother-in-law and was unwilling

to return to the matrimonial home;

c. on 05.04.2006, the deceased visited the house of her parents and

at that time the marks of beating were found on her body. She

complained that the accused were demanding Rs 5 lakhs and a

motorcycle from them. She also alleged that she was being harassed for

not bringing chuchak on the birth of her son;

d. on 12.04.2006, the father and the uncle of the deceased went to

her matrimonial home along with Rs 30,000/- which they paid to the

accused persons, one gold chain for the child, some golden and silver

ornaments for the child, clothes of the children and some other articles,

but the appellants complained that they had not brought ornaments for

the deceased. The uncle of the deceased Shri Rajesh Kumar, on the

other hand, stated that at that time the accused persons were demanding

motorcycle and cash amounting to Rs 5 lakhs;

e. the mother of the deceased stated that the accused persons wanted

Rs 5 lakhs in cash besides a plot.

16. As far as the appellant Yogita is concerned, admittedly, she was

already married when deceased Mamta got married to the appellant

Yogesh. After marriage, she was not residing with her parents.

Therefore, it is somewhat unlikely that she would have demanded the

dowry from the parents of her sister-in-law and would have

accompanied her brother Yogesh to the house of her parents to collect a

sum of Rs 20,000/- from them. She had nothing to gain from the cash or

articles of dowry or the articles alleged to have been given by the

parents of Mamta to her in-laws. Therefore, there would be no good

reason for her to intervene in a matter of this nature and harass her

sister-in-law. Though it has come in evidence that the deceased used to

be beaten and when she visited the house of her parents on 05.04.2006,

injury marks were noticed on her body, it is unlikely that the appellant

Yogita would have beaten her sister-in-law. Ordinarily, in matrimonial

dispute the woman is subjected to physical violence only by her husband

and the married sister-in-law would not join her brother in giving

beatings to his wife.

17. In Surinder Kaur and Anr vs. State of Haryana 2004 (2) RCR

(Criminal) 140, there were allegations against the sisters-in-law of the

deceased that they along with their brother used to harass the deceased

for not bringing the dowry and Maruti car and in the process used to

beat her. The Hon‟ble Supreme Court found rather difficult to believe

that the young girls would go to the extent of beating the deceased. The

sisters-in-law who were convicted by the Trial Court and whose

conviction were upheld by the High Court were acquitted by the Apex

Court.

The appellant Yogita, therefore, deserves to be given benefit of

doubt.

18. It is an admitted case that the house in which the deceased died

was a two storey house and she was found dead on the ground floor.

According to DW-1, Shri Suraj Bhan Garg, the appellant Yogesh with

his family was residing on the ground floor, whereas his parents were

residing on the first floor. There is no evidence on record which would

show that the parents in-law of the deceased were residing on the same

floor along with her and her husband. I, therefore, see no reason to

disbelieve the deposition of DW-1 Shri Suraj Bhan in this regard and

consequently accept the contention of the appellants that the deceased

used to reside on the ground floor with her husband, whereas her

parents-in-law were residing at the first floor. When the father of the

complainant came in the witness-box, he attributed the demand of dowry

and harassment of the deceased to all the appellants, meaning thereby

husband, mother-in-law, father-in-law as well as married sister-in-law.

No specific act of harassment was attributed by him either to the mother-

in-law or father-in-law of the deceased. When the mother and uncle of

the deceased came in the witness-box, neither of them imputed any

particular demand or harassment of the deceased either to her mother-in-

law or to her father-in-law. It has come in evidence that when the

deceased came to the house of her parents on 05.04.2006, as noted

earlier, injury marks were found on her body. There is no evidence that

any particular injury was attributed by the deceased to her father-in-law

or mother-in-law. According to them, she claimed to have been beaten

by all the accused persons. In the deposition of the witnesses, there is a

specific reference to the demand of motorcycle. In his statement to the

SDM, the father of the deceased stated that when he went to the

matrimonial home of the deceased on 12.04.2006, the grievance of the

accused persons was that motorcycle which they had demanded had not

been given. He further stated that the aforesaid demand was the bone of

contention between them and the accused persons. The motorcycle, if

given would have been used by the husband and not by the mother-in-

law or father-in-law of the deceased. Therefore, in the normal course of

human conduct, the demand for the vehicle would have emanated from

the husband and not from the parents-in-law of the deceased.

19. It has come in evidence that there was demand of cash though the

figure has varied from Rs 5,000/- to Rs. 5,00,000/-. This is not the case

of the prosecution that the aforesaid money had it been paid would have

been used by the parents-in-law of the deceased. It would only be

appropriate to note here that according to the complainant, the amount of

Rs 20,000/- was paid by him to the husband and sister-in-law of the

deceased. He does not claim to have paid the said amount either to her

father-in-law or to her mother-in-law. As noted earlier, none of the

witnesses told the Court as to in what manner the mother-in-law and

father-in-law of the deceased used to harass her. They made bald

allegations of demand of dowry and harassment against all the

appellants, without telling the Court as to what exactly was their

individual role in the matter. In these circumstances, I am of the

considered view that the benefit of doubt needs to be extended to the

appellants Vijender Singh and Sheela Devi parents-in-law of the

deceased.

20. As far as the appellant Yogesh is concerned, the evidence

produced by the prosecution clearly shows that he had demanded

motorcycle and had also taken Rs 20,000/- in cash from his father-in-

law. Even at the time the complainant went to his house along with the

ornaments and clothes for the child, the grievance was on account of his

failure to give motorcycle to the husband of the deceased. It has come in

the deposition of the father and uncle of the deceased that injury marks

were found on her body when she came to the house of her father, I am

excluding the aforesaid part of the evidence from consideration since

neither the complainant referred to it in his statement to the SDM nor did

the mother of the deceased claimed to have seen injury marks on her

body. It is not known on which parts of the body of the deceased, injury

marks were noticed by her father and uncle. In case the marks were on

the exposed portion of her body, they could have noticed them, but, the

marks on the covered portion of the body would have been shown by the

deceased only to her mother and not to her father and uncle.

21. Ex.DW-2/A is the copy of the report lodged by the appellant

Yogesh, husband of the deceased, in the police station. A perusal of the

aforesaid DD entry would show that on the aforesaid date, the appellant

Yogesh had gone to the police station and lodged a report. It has come in

the deposition of DW-2 Head Constable Shiv Kumar that the complaint

was with respect to quarrel between Yogesh and his wife. He also stated

that for investigation, he visited the house of Yogesh and Yogesh stated

that compromise talks between him and his wife were going on. The

aforesaid authentic document, coupled with the deposition of DW-2,

clearly shows that the disputes were only between the husband and wife.

Nowhere did DW-2 claim that when he went for inquiring into the

complaint, the deceased complained to him against her parents-in-law.

The report lodged by the appellant Yogesh Kumar leaves no doubt

that the relations between him and his wife were far from cordial. In

fact, the relations between them must have been quite strained else he

would not have gone to the extent of making a complaint to the police

against his wife. The report lodged by the appellant Yogesh with the

police when viewed in the light of the evidence produced by the

prosecution and other facts and circumstances of the case, as discussed

hereinbefore, leave no reasonable doubt that he had subjected the

deceased to cruelty and harassment in connection with demand of cash

and motorcycle for him. It has come in evidence that the relations

between the appellant Yogesh and his wife never improved and her

harassment continued till the time she died, barring the period during

which she remained with her husband, after birth of her child.

Therefore, the prosecution has been able to prove that deceased Mamta

was subjected to cruelty and/or harassment in connection with demand

for dowry by Yogesh. The Court, therefore, is required to presume, as

provided in Section 113B of Evidence Act that the appellant Yogesh had

caused her dowry death. No evidence has been led by the appellant

Yogesh which would prove that Mamta died on account of reasons other

than the cruelty and/or harassment to which she was subjected by him in

connection with the demand of dowry.

22. In Pathan Hussain Basha vs. State of A.P. (2012) 8 SCC 594, the

Hon‟ble Supreme Court, noticing that the ingredients of Section 304B

read with Section 498A thereof were completely satisfied, observed that

by a deeming fiction in law, the onus shifts on to the accused as to how

the deceased died and it is for him to show that the death of the deceased

did not result from any cruelty or demand of dowry by the accused

persons. It was also observed that mere denial cannot be treated to the

discharge of onus, which can be done only by leading proper and cogent

reasons. It was further observed that it was expected of the accused to

explain as to how and why his wife died and maintaining silence cannot

be equated to the discharge of onus.

23. For the reasons stated hereinabove, appellants Yogita, sister-in-

law, Vijender Singh, father-in-law and Sheela Devi, mother-in-law of

the deceased are acquitted, whereas the conviction of the appellant

Yogesh under Section 498A and 304B of IPC is maintained. However,

in the facts and circumstances of the case, including the continued

incarceration of the appellant Yogesh, the substantive sentence awarded

to him under Section 304B of IPC is reduced from 10 years to 7 years.

The other sentence awarded to the appellant Yogesh, however, remains

unaltered.

The appeal stands disposed of accordingly.

One copy of this order be sent to the Jail Superintendent for

information and necessary action.

The LCR be sent back along with the copy of this judgment.

MARCH 04, 2014                                       V.K. JAIN, J.
b'nesh/BG