Sunil vs State Govt. Nct Of Delhi
2015 Latest Caselaw 5898 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment reserved on :04.8.2015
                                    Judgment delivered on :13.8.2015

+      CRL.A. 209/2013

       SUNIL                                   ..... Appellant

                           Through       Mr.K.Kaushik, Advocate.

                           versus

       STATE GOVT. NCT OF DELHI                ..... Respondent

                           Through       Mr.O.P.Saxena, APP.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal has been directed against the impugned judgment and

order of sentence dated 27.11.20012 and 10.01.2013 respectively

wherein the appellant Sunil (husband) had been convicted under

Sections 498A/304B of the IPC. For his conviction under Section 498A

of the IPC he had been sentenced to undergo RI for a period of 3 years

and to pay a fine of Rs.4000/-, in default of payment of fine to undergo

SI for 3 months; for his conviction under Section 304 B of the IPC he

had been sentenced to undergo RI for a period of 10 years and to pay a

fine of Rs.8000/- in default to undergo SI for a period of 6 months.

2 The version of the prosecution is that the deceased Sandesh was

married to the appellant Sunil on 06.5.2006 as per Hindu rites. After her

marriage, her father-in-law, mother-in-law and the appellant (husband)

started harassing her for dowry. In September, 2008, the victim was left

outside her parent‟s house. She filed a complaint under Section 498A of

the IPC. In December, 2008 the appellant made a demand of

Rs.50,000/- and the same was paid to him. He opened a shop. On

21.5.2009 (3 days prior to the incident) the deceased was visited by her

brother. She showed injury marks on her body which was caused to her

by her in-laws because of dowry demands. On 24.5.2009 the unfortunate

incident of the victim having succumbed to her death by taking poison

had been informed to the parents of the victim. FIR was registered.

3 In the course of the investigation the prosecution examined 20

witnesses of whom, brother of the deceased, Sushil Kumar was

examined as PW-1. Father of the victim, Kamal Singh was examined

as PW-8. Her foofa, Vinay Pal Singh, was examined as PW-7. Her

„mausa‟, Brijesh, was examined as PW-4. These were the four persons

who were examined from the family of the victim. The post mortem of

the victim had revealed that she died because of poisoning. The post

mortem report is Ex.PW-5/A. The cause of death was by aluminum

phosphide poising.

4 On the basis of the aforenoted evidence collected by the

prosecution the accused was convicted and sentenced as aforenoted.

The charge sheet had been filed against the in-laws (mother-in-law and

father-in-law) of the victim as well, however, they both stood acquitted.

The Trial Judge did not find any evidence against them.

5 Arguments have been addressed by learned counsel for the

appellant. The main thrust of the arguments of the learned counsel for

the appellant is that even presuming that a sum of Rs.50,000/- had been

paid by the victim‟s family to the appellant which was for the purpose of

opening of a shop; this purpose would not be a dowry demand within

the meaning of "dowry" as enshrined under Section 304 B of the IPC.

In the absence of a dowry demand having been proved by the

prosecution the conviction of the appellant suffers from an infirmity.

There is also no proximity between the date of the so-called alleged

demand which as per the prosecution was made in December, 2008 and

the victim having succumbed to her death on 24.5.2009 (6 months later);

the distance in time also does not establish the ingredients of Section

304 B of the IPC. Attention has been drawn to a compromise which had

been arrived at between the parties pursuant to a complaint which was

lodged by the deceased. This compromise is dated 21.7.2008.

Submission being that even in this compromise deed there is no mention

at all that the victim had suffered any cruelty qua dowry demands raised

upon her either by her husband or her in-laws. The versions of the

witnesses of the prosecution also suffer from inherent infirmities. The

appellant is entitled to the benefit of doubt and a consequent acquittal.

To support these arguments reliance has been placed upon a judgment of

a Co-ordinate Bench of this Court reported as 2010 [2] JCC 972 Hans

Raj Sharma & Ors. Vs. State Govt. of NCT of Delhi ; submission being

that a demand of money to purchase a shop is not a dowry demand

within the meaning of Section 304 B of the IPC. Reliance has also been

placed upon a judgment of the Supreme Court reported as 2010 [3] JCC

1852 Durga Prasad & Anr. Vs. State of M.P. to substantiate a

submission that to make out the ingredients of Section 304 B of the IPC

the cruelty and harassment suffered by the victim must be in connection

with the demand of dowry; which is not so in the present case. For the

same proposition reliance has been placed upon another judgment of the

Supreme Court reported as (2010) 4 SCC (Cri) 27 Tarsem Singh Vs.

State of Punjab. Submission being that the essential ingredients of

Section 304B of the IPC have not been fulfilled and there being nothing

indicative of the fact that the cruelty was meted out to the victim "soon

before" her death, benefit of doubt must accrue in favour of the

appellant.

6 Arguments have been countered. It is pointed out that on no

count does the impugned judgment call for any interference. Reliance

has been placed upon a judgment of the Apex Court reported as AIR

2011 SC 1098 Bachni Devi and Anr. Vs. State of Haryana through

Secretary, Home Department to substantiate the argument that the

definition of "dowry" as contained in Section 2 of the Dowry

Prohibition Act, 1961 includes three stages and the last stage is an

unending period which may be at any time after the marriage.

7 Arguments have been heard. Record has been perused.

8 This is admittedly a case of circumstantial evidence. Under

Section 304B of the IPC there are certain essential ingredients which are

required to be fulfilled by the prosecution; only then conviction can

follow under the said provision of law. The following ingredients have

to be proved:

               i.     Death   must   have been      caused    in      unnatural

                      circumstance; it must be away from normal.

               ii.    Death must have occurred within seven years of

                      marriage.

iii. Soon before the death the victim must have been

subject to cruelty and harassed by her husband, or

any relative of her husband

iv. This cruelty or harassment must be in connection

with the demand of dowry.

9 There is no dispute to the proposition that in the instant case the

first two ingredients stand fulfilled. The victim and the appellant had

been married on 06.5.2006. The incident had occurred on 24.5.2009 i.e.

within less than seven years of her marriage. As per the post mortem

report the victim had died an unnatural death. She had died in her

matrimonial home after consuming poison.

10 It is next two ingredients which have to be answered by this Court

i.e. as to whether "soon before her death" the victim was subjected to

cruelty or harassment by the appellant and this cruelty and harassment

must be in connection with demand of dowry.

11 The definition of dowry contained in Section 2 of the Dowry

Prohibition Act, 1961 reads as follows:

"2.Definition of `dowry'.-In this act, `dowry' means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

***

Explanation II.-The expression `valuable security' has the same meaning as in Sec. 30 of the Indian Penal Code (45 of 1860)."

12 The Apex Court in the judgment of Bachni Devi (supra) had an

occasion to consider the definition of "dowry" and how it is to be

understood in the context of Section 304B of the IPC. In this context

the Apex Court had held as under:

"Thus, there are three occasions 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". As was observed in the said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused.... or occurs otherwise than under normal circumstances" as expressed in Section 304B IPC."

13 On this anvil the testimony of the family members of the victim

shall now be scrutinized.

14 PW-1 was the brother of the victim. He had deposed that on

06.5.2009 his sister was married to the appellant Sunil. She was

residing in her matrimonial home. After her marriage her father-in-law,

mother-in-law and husband used to harass her for dowry. A Panchayat

was also held. The accused persons gave an assurance that they would

no longer trouble or torture her. In 2008 the deceased had been left at

their house. His sister had lodged an FIR in December, 2008. The

appellant had demanded a sum of Rs.50,000/- which was paid to him

which was for opening a shop. Thereafter the matter was settled and

there was peace but this was short lived and again her husband and in-

laws started giving beatings to his sister. In his cross-examination he

has not deterred from his stand. Nothing has also been highlighted in

the cross-examination of PW-1.

15 PW-8 was the father of the victim. He had also deposed that after

the marriage his daughter was harassed by the accused and his parents

for bringing insufficient dowry. They used to beat her. In 2008,

appellant Sunil brought her daughter back to his house and left there.

An FIR was lodged. In December, 2008 a Panchayat was called by the

accused person. He along with his daughter and relatives went there. In

the Panchayat it was decided that the accused persons would keep the

victim happily. A sum of Rs.50,000/- was paid by PW-8 to the

appellant for opening a shop. Thereafter his daughter was sent back

with the accused persons. Nothing has been highlighted in the cross-

examination of this witness either.

16 PW-4 was the uncle of the victim. He had also deposed on the

same lines. He had deposed that in December, 2008 a Panchayat was

constituted and relatives of both the sides also attended the Panchayat.

In the Panchayat accused Sunil demanded Rs.50,000/- for opening a

shop. It was decided that PW-8 shall send his daughter back with the

appellant and thereafter the appellant brought the deceased back to her

matrimonial home in Delhi. Nothing has been highlighted in the cross-

examination of this witness either.

17 PW-7 was another uncle of the victim. He had stated that the

accused used to harass the deceased for bringing insufficient dowry. In

December, 2008 the appellant arranged a Panchayat. He called relatives

and respective persons of the locality. PW-7 had also attended the

Panchayat. The appellant Sunil along with his parents was also present

there. The victim was also told that Rs.50,000/- was paid by her father

for opening a shop the amount was given in the hands of the appellant

and thereafter in the presence of Panchayat, the deceased was sent with

the appellant Sunil. Later on, PW-7 learnt that her niece had been

killed.

18 The vehement submission of the learned counsel for the appellant

being that these versions of PW-1, PW-4, PW-7 and PW-8 only show

that a sum of Rs.50,000/- had been paid by PW-8 to the appellant which

was for the purpose of opening a shop. This does not only relate to a

dowry demand. In the absence of this he is entitled to an acquittal.

This in fact is the highlight of the argument which have been addressed

before this Court.

19 This Court is not in agreement with this submission of the learned

counsel for the appellant. The definition of dowry has been noted

supra. The Apex Court noted that the word "dowry" has to be

understood in the context of the social legislation which has been

engrafted by amending the IPC and incorporating Section 304 B of the

IPC. Section 304 B of the IPC was inserted w.e.f. 19.11.1986 by the

Dowry Prohibition (Amendment) Act, 1986, the substantive offence

relating to "dowry death" was thereafter inserted. This was a piece of

social legislation making provisions of the IPC more stringent as

"dowry deaths" continued to be increasing and the earlier Act (un-

amended) was inadequate to deal with this problem.

20 This Court is of the considered opinion that if any demand is

made for a property or a valuable security directly or indirectly and it

has nexus with the marriage such a demand would constitute a demand

of dowry. The cause or reason for the demand would be immaterial.

As rightly pointed out by learned APP the relation/connection which the

appellant had with the family of the victim was through the victim;

being the fact that he had married the victim and that is why he had

developed a relationship with the family of the victim. The demand of

Rs.50,000/- from her father (PW-8) which was honoured was a coercive

and pressure demand made by the appellant in connection with the fact

that he had married PW-8‟s daughter and in this context the Panchayat

was assembled in December, 2008 and only after Rs.50,000/- was paid

to the appellant he had agreed to take back the deceased. This amount

of Rs. 50,000/- was accordingly paid over by PW-8 only to buy peace

for his daughter. This amount was thereafter used by the accused for

opening a shop. The reason for this demand is not material. It is not

material as to for what purpose this amount of Rs.50,000/- was utilized.

The judgment relied upon by the learned counsel for the appellant of

Hans Raj (supra) is wholly inapplicable. In that case reliance by this

Court upon the judgment of the Apex Court in (2007) 9 SCC 721

Appasaheb and Anr. Vs. State of Maharashtra has been distinguished by

the Supreme Court in the subsequent judgment of the Bachni Devi

(supra). In the judgment of Bachni Devi the Apex Court had noted that

the observations made in Appasaheb (supra) were peculiar to the facts

of that case and cannot be said to be laying down a wholesome

proposition that a valuable security on account of some

business/financial requirement having acquired cannot be termed as a

demand of dowry.

21 The post mortem of the victim shows that she had died because of

consuming poison. This pinion on the cause of death had been given

after the viscera sample of the victim was sent for examination, it had

shown cause of death as consumption of aluminium phosphide

poisoning which was contained in her viscera. She had died an

unnatural death. She had died within less than seven years of her

marriage.

22 The submission of the learned counsel for the appellant that the

compromise deed dated 21.7.2008 arrived at between the parties

pursuant to which the victim had been taken back to her matrimonial

home by the appellant shows that there was no dowry demand raised

upon the victim is also an argument noted to be rejected.

23 Admittedly, this compromise was arrived at between the parties

on 21.7.2008 pursuant to a complaint of cruelty lodged by the victim

under Section 498A of the IPC. Section 498A of the IPC relates to

cruelty. The testimony of the family members of the victim have

already been scrutinized. All of them have categorically deposed that

right from the inception of marriage the victim had been tortured by her

husband and in-laws. There were consistent dowry demands made upon

her. She was married to the accused on 06.5.2006. The complaint was

lodged by her under Section 498A of the IPC. Pursuant thereto a

compromise dated 21.7.2008 was arrived between the parties. In

September, 2008 she was again left back at her parent‟s home. This has

categorically come in the version of PW-1 and PW-8. In December,

2008 a Panchayat was held which was attended by the family members

of both the parties. In this Panchayat it had been agreed that the

appellant would take back his wife on a sum of Rs.50,000/- which had

been paid to him. The amount was paid in his hands as is clear from the

version of the witnesses of the prosecution. The victim had only then

been taken back to the matrimonial home; i.e. after the demand of

Rs.50,000/- was met. The appellant had agreed to take back his wife

only after this amount was paid to him. PW-1 and PW-8 have further

deposed that even after having paid this amount the dowry demands

continued. As per the versions of PW-1, 3 days prior to the date of the

incident i.e on 21.5.2009 when he had gone to visit his sister, she

showed him injury marks on her body which had been caused upon her

due to the beatings given to her for brining less dowry. This is his

categorical version on oath. PW-1 promised to send her father to take

his sister back as the accused persons had told him to take her back. 3

days later he was informed that his sister had been killed.

24 What could be more cruel than such situation where the victim

was time and again shifting from her matrimonial home to her paternal

home and vice-a-versa. Inspite of a lavish marriage the family of the

victim still remained unsatisfied. In December, 2008 a sum of

Rs.50,000/- was paid to the appellant. He opened a shop. But again the

victim was harassed. On 21.5.2009 PW-1 noted injury marks on his

sister‟s body which he had seen with his own eyes. The appellant and

his family asked PW-1 to take his sister back. He promised to return

with his father. In this intervening period i.e. of 3 days the

psychological, emotional and physical trauma suffered by the victim

must have been unfathomable; this was probably the wholesome reason

why the victim had taken her own life. It was this extreme harassment

which she was suffering that she decided to end her life. It was in

connection of the demands continuously raised upon the victim by the

appellant. This had led to her unnatural death. She had died by

consuming poison.

25 In this background by no stretch of imagination it cannot be said

that the demand raised by the appellant on the victim of Rs.50,000/- and

was not a dowry demand. All the ingredients of Section 304 B of the

IPC have been fulfilled. The presumption contained in Section 113 of

the Indian Evidence Act also comes to the aid of the prosecution. Once

a prima facie case is established by the prosecution, the onus shifts upon

the accused to dislodge this presumption. The accused has failed to do

so.

26 The impugned judgment in this background calls for no

interference. The sentence imposed upon the appellant also calls for no

interference. Appeal is without any merit. Dismissed.

INDERMEET KAUR, J

AUGUST 13, 2015

ndn