Delhi High Court
Hemant vs State Nct Of Delhi on 16 December, 2015
$~R-28A to R-28G (Part-A)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20th November, 2015
% Date of Decision : 16th December, 2015
+ CRL.A. 1023/2012
HEMANT ..... Appellant
Through: Mr. D K Singh, Adv.
versus
STATE NCT OF DELHI .... Respondent
Through: Ms. Aashaa Tiwari, APP with
Insp. Alka Azad, CAW Cell,
Nanak Pura and SI Neeraj
Kumar-PS Mandawali
+ CRL.A. 605/2011
SONY @ SANGEETA ..... Appellant
Through: Mr. R P Khatana, Mr. Dhiraj
Kochar and Mr. Vipin Kumar
Chaudhary, Advs.
versus
STATE NCT OF DELHI ..... Respondent
Through: Ms. Aashaa Tiwari, APP
+ CRL.A. 585/2011
MAYA ..... Appellant
Through: Mr. M L Yadav, Adv.
versus
STATE OF DELHI ..... Respondent
Through: Ms. Aashaa Tiwari, APP
+ CRL.A. 235/2012
AJIT ..... Appellant
Through: Mr. Pramod Kumar Dubey and
Mr. Shiv Chopra, Advs.
versus
STATE GOVT. OF NCT OF DELHI ..... Respondent
Through: Ms. Aashaa Tiwari, APP
+ CRL.A. 716/2011
SMT. KAMLESH ..... Appellant
Through: Mr. D K Singh, Adv.
versus
STATE (N.C.T. ) OF DELHI ..... Respondent
Through: Ms. Aashaa Tiwari, APP
+ CRL.A. 603/2011
ANITA ..... Appellant
Through: Mr. Pramod Kumar Dubey and
Mr. Shiv Chopra, Advs.
versus
STATE ..... Respondent
Through: Ms. Aashaa Tiwari, APP
+ CRL.A. 604/2011
DHARAM PAL ..... Appellant
Through: Mr. Pramod Kumar Dubey and
Mr. Shiv Chopra, Advs.
versus
STATE ..... Respondent
Through: Mr. Varun Goswami, APP
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE R.K.GAUBA
R. K. GAUBA, J:
1. These seven criminal appeals, alongwith another (criminal
appeal no.122/2012 ) were preferred to assail the judgment dated
29.04.2011 and order dated 30.04.2011, both passed by Additional
Sessions Judge, Karkardooma, Delhi in Sessions Case no.34/2008.
The criminal appeal no. 122/2012 (preferred by Lalwati wife of Jagbir
Singh) stood abated as the said appellant died on 03.01.2015. Since
these appeals arise of the same set of facts, circumstances and
prosecution, they have been heard together and are being decided
through this common judgment.
2. Alka, daughter of Bachan Singh (PW2), was married to the
appellant Hemant Singh (criminal appeal no.1023/2012) on
11.12.2005. She gave birth to a male child (named Mayank) in due
course. On 28.09.2007, some 7/8 months after the birth of the child,
sometime between 11:00 AM-12‟o clock noon time, Alka (then aged
24 years) suffered burn-injuries in the matrimonial home i.e. house
no.382, Gali no.1, Asha Ram Gali, within the jurisdiction of police
station Mandawali. She was brought to Lok Naik hospital, New Delhi
("the hospital") by the husband (appellant Hemant) at 02:00 PM on the
same afternoon. The medico legal report ("MLC") (Ex.PW14/A),
prepared by the examining medical officer Dr. Babu Lal Rulania
(PW14), though indicates that Alka (the victim) had disclosed the
history to be burns suffered around 01:30 PM at residence. The MLC
(Ex.PW14/A) noted that at the time of being brought in, she was
conscious and oriented with her vitals stable. In the assessment of the
medical officer (PW14), she had suffered superficial to deep burns
involving both arms, forearms, face, upper abdomen, lower abdomen
and upper thighs, the extent assessed to be 40 %. She was admitted to
burn-ward, detailed examination and opinion of the specialist and for
further management. The MLC noted, inter-alia, that the body of the
victim was not emitting smell of kerosene oil.
3. The information about the victim having been brought with burn
injuries to the hospital by her husband (appellant Hemant) was
conveyed by HC Raj Pal to the police station Mandwali ("the police
station") at 02:15 PM on 28.09.2007 and was logged there vide DD
no.38-B (Ex.PW17/A). The matter was entrusted for inquiry to ASI
Kanta Prasad (PW9) who, accompanied by Ct. Kulwant Singh (PW4),
set out for the place of occurrence (matrimonial home). On learning
that the fire incident had taken place in the kitchen and the injured had
already been shifted to the hospital, he deputed the accompanying
constable (PW4) to remain at the spot, and proceeded to the hospital.
On the way, he informed Mr. P. K. Jayant (PW1), the Executive
Magistrate of the sub-division.
4. The Executive Magistrate (PW1) reached the hospital in the
evening and conducted an inquiry by first ascertaining the state of
health of the victim. During the proceedings (Ex.PW1/A) recorded by
him, the medical officer Dr. Abhimanyu Sharma (PW13) attending on
the victim confirmed through a formal certificate, recorded at 05:10
PM, that she was "fit for statement". This certificate appears on the
MLC vide marginal endorsement (vide Ex.PW13/A) as also at the
beginning of the formal proceeding (Ex.PW1/A) of the Executive
Magistrate.
5. It is necessary to quote verbatim, the relevant portions of the
proceeding recorded by the Executive Magistrate (PW1), of which the
statement of the victim in Hindi forms the main part. The same reads
as under :-
"प्र. आऩका क्मा नाभ है औय आऩके ऩति का क्मा नाभ है औय
आऩका क्मा ऩिा है औय आऩकी शादी कहाॉ हुई औय उसकी डेट क्मा है ?
उत्तय- भेया अरका है औय भेये ऩति का नाभॊ हे भॊि है औय भेया ऩिा ३८२
गरी न.०१ भॊडावरी पाजरऩुय, ददल्री है | भेयी शादी ११.१२.२००५ ददल्री
भें दहन्दू यीिी रयवाज़ के अनुसाय सॊऩन्न हुई थी औय शाहदया, भानसयोवय
ऩाकक ददल्री भें हुई थी|
प्र. मह हादसा कफ औय कैसे हुआ ववस्िायऩुयवायक फिाईमे| क्मा
आऩ ककसी को जजम्भेवाय भानिे है ?
उत्तय. मह हादसा ११ से १२ फजे के फीच हुआ इस हादसे की जजम्भेवाय भैं
अऩनी सास जजसका नाभ रारविी है औय ननद का नाभ अनीिा औय
जेठ रारा कहिे है भगय सही नाभ भुझे माद नहीॊ आ यहा है भेया ननद का
आदभी बी था धयभ ऩार है औय इनकी फुआ जजसका नाभ भामा है |
भौसी बी है जो भॊडावरी भें यहिी है | औय भैंने इसकी १०० ऩय ऩुलरस को
कॉर भैसेज ककमा था डेट २७.०९.९७ (रोकर ऩुलरस) औय कपय भैंने अऩनी
पैलभरी वारों को बी फुरामा था औय भेयी पैलभरी वारों ने सुरह कयामा
था | एभएरसी न. ९९५६९ एर अॊ जेऩी हॉजस्ऩटर भें फिामा है कयीफ ४०
% जरी है | चेस्ट फ्रॊट एॊड फैक साइड | इस जरने भें भेये हस्फैंड हे भॊि बी
साथ थे फड़ी भुजककर से भेये को मे एर इन जेऩी हॉजस्ऩटर रेक्कय आमे थे
औय भेये को एक फच्चा है जजसकी उम्र साि भहीने है | भेया रड़का भमॊक
है औय भेये फच्चे को ऩिा नहीॊ है घय वारे क्मा कयें गे भेये फच्चे को कैसे
यखेंगे |अगय भुझे कुछ हो जािा है िो भेया फच्चा भेये भाॊ ऩाऩा को ददमा
जामे इन ऩय भुझे कोई बयोसा नहीॊ |
प्र. आऩकी शादी भें ककिना औय भाॊग की थी औय शादी हभने ठीक ककमा
था
उत्तय. भेये घयवारों को इन्होने भेयी शादी भें ऩैसा की भाॊग की थी औय भेये
घयवारों ने नकद ३५००० रुऩमे ददए थे | औय दहे ज़ ज्मादा ना लभरने की
वजह से मह सफ घय वारे भुझे फहुि िॊग कयिे थे | भैं १२ क्रास ददल्री
से ऩास हूॉ भेयी उम्र २५ वषक है | सबी रोग भेये घयवारों को बी धभकी दे िे
थे अगय िूने फिामा िो हभ िुम्हे जजन्दा नहीॊ छोड़ेंगे | भेये हस्फैंड से िू िू
भैं भैं हभेशा होिी यहिी थी | भेयी छोटी ननद का नाभ सोनी है वो हभेशा
भुझे गारी दे कय फाि कयिी थी औय हभेशा िाना दे िी थी औय भेयी सास
बी उल्टा-२ फोरिी थी | भुझे लभटटी का िेर डारकय इन्होने भुझे जरामा
है इनको कानून फड़ी-फड़ी सजा दे | भुझे भेयी सास िाना दे िी थी की िूने
दहे ज़ कभ रामी है |
आखखयी भें मह कहूॉगी की भेया फेटा भेये भाॉ फाऩ को भेये कुछ होने के
फाद व अबी दे दे जजससे भेयी आत्भा को कुछ सुकून लभर सके | औय भुझे
खाने को बी नहीॊ दे िे थे औय भुझसे ऩूया काभ रेिे थे |
भैंने मह फमान सुन लरमा है औय ऩढ़ लरमा है मह फमान भैंने अऩनी
होश - आवाश भें ददमा है |"
6. The above-quoted proceedings attributed as statement of the
victim may be translated in English as under :-
"Q. What is your name and what is the name of your
husband and what is your address and when you were
married and what was the date thereof ?
Ans. My name is Alka and name of my husband is
Hemant and my address is 382, Gali no.01, Mandawali,
Fazalpur, Delhi. My marriage was performed as per
Hindu Rites and Customs on 11.12.2005 in Shahdara
Mansarowar Park, Delhi.
Q. Please tell as to when and how this incident
occurred ? Please state in detail. Do you hold any one
responsible ?
Ans. This incident occurred between 11:00-12 o'clock.
For this incident, I hold responsible my mother-in-law
whose name is Lalwati and sister-in-law named Anita
and Jeth Lala, correct name I am unable to remember.
Husband of my sister-in-law Dharam Pal was also there
and his bua named Maya. There is mausi also who lives
in Mandawali. I had given a call message to police
about this on 100 date 27.09.2007 (local police) and
then I had also called members of my family and my
family had brought about a compromise. MLC No.99569
LNJP hospital mentions that there are approximately
40 % burns. Chest front and back side. My husband
Hemant was also involved in this burning. With great
difficulty, he brought me to LNJP hospital and I have one
child who is aged 7 months. Mayank is my son and I do
not know as to what would my family do with my child.
How they would keep my child. If something happens to
me my child be given to my family and father. I have no
faith in them.
Q. What was the demand in your marriage and the
marriage was well arranged by us.
Ans. They had demanded money from my family in the
marriage and my family had given cash of Rs.35,000/-.
And the members of my family used to harass me for not
getting sufficient dowry. I am 12th class passed from
Delhi. My age is 25 years. All members of my family
used to threaten that if I tell, they would not leave me
alive. I and my husband would frequently argue with
each other. My younger sister-in-law is Soni. She would
always talk to me with abuses and would always taunt
and my mother-in-law would always speak improperly.
They have set me on fire by pouring kerosene oil. The
law must give them severe punishment. My mother-in-
law always taunted me that I have brought insufficient
dowry.
In the end, I would say that my son be given to my
mother and father, if something happens to me and now
only so that my soul gets some peace. And I was not
given food and I was made to work fully.
I have heard this statement and read it. I have
given this statement in fully conscious state".
7. Having recorded the above statement (Ex.PW1/A) of the victim
at about 05:10 PM, the SDM (PW10) forwarded a copy to the SHO
P.S. Mandawali for information and necessary action "as per law". On
the same date, at about 07:10 PM, the SHO made an endorsement
directing a case to be registered for investigation into offences
punishable under Sections 498-A, 307/34 IPC of Indian Penal Code,
1860 ("IPC") and for the investigation to be handed over to Inspector
Alka Azad (PW17), the Additional SHO of the police station. The FIR
(Ex.PW6/A) was registered by SI Phool Singh (PW6), duty officer.
Though this may be too insignificant and inconsequential a detail, it
may be mentioned that FIR (Ex.PW6/A) and the endorsement
(Ex.PW6/B) on the rukka show the case was registered at 1905 hours,
even though the direction to such effect by the SHO was recorded at
1910 hours. It appears formalities on paper were completed later
leading to this discrepancy.
8. Alka (the victim) died due to burn injuries at 11:20 PM on
05.10.2007 in the hospital. The event came to the notice of the police
station on 0020 hours on 06.10.2007 upon the information being
conveyed by duty Constable Devender to the police station where it
was logged vide DD no.5A (Ex.PW17/C). The case was thereafter
converted into one involving the offences punishable under Sections
304-B/498-A/34 IPC. Aside from conducting the inquest proceedings
and arranging for post-mortem examination of the dead body, the
investigating officer (PW17) proceeded to complete the investigation
in which course she had examined, amongst others, Bachan Singh
(PW2) and Satender Kumar Singh (PW3), father and brother
respectively, of the deceased.
9. On 19.12.2007, report under Section 173 of the Code of the
Criminal Procedure, 1973 ("Cr.P.C") was submitted in the court of
Metropolitan Magistrate. This report, inter-alia, referred to DD
no.20A (Ex.PW7/A) recorded in the police station at 1418 hours of
27.09.2007 and inquiry made there into by HC Ramesh Chand (PW7)
resulting in report vide DD no.70-B recorded at 2010 hours on
27.09.2007. We shall refer to this part of the background in detail
later. For the present, it be noted that out of eight persons mentioned
by the victim in her statement (Ex.PW1/A) to the Executive Magistrate
(PW1), four were shown in column no.2 as those against whom the
investigating police officer (PW17) had not been able to find sufficient
evidence, they being appellant Dharam Pal (in Crl. A. 604/2011),
appellant Anita (in Crl. A.603/2011), appellant Kamlesh (in Crl. A.
716/2011) and appellant Maya (in Crl. A.585/2011). The chargesheet,
however, pressed for prosecution of the other four viz. appellant
Hemant Singh (husband), appellant (Jeth) Ajit (in Crl. A.235/2012),
mother-in-law Lalwati (since deceased) and appellant (Nanad) Soni (in
Crl. A.605/2011), on the ground that sufficient evidence had come up
about their involvement in offences punishable under Sections 498-
A/304-B/34 IPC.
10. The Metropolitan Magistrate by her order dated 04.02.2008
found sufficient material available to proceed and thus summoned all
the eight persons mentioned above, as accused.
11. Though investigating police had sought trial only for offences
punishable under Sections 304-B/498-A/34 IPC, not pressing charge
for the offence of murder punishable under Section 302 IPC, inter-alia,
stating that clear evidence was available that mother-in-law Lalwati
and unmarried sister-in-law Soni were not even present at the scene at
the time of the occurrence, the Additional Sessions Judge by order
dated 01.08.2008 held that sufficient grounds were available to put all
the eight persons on trial on the charge for the offence punishable
under Section 302/34 IPC and/or in the alternative on the charge for
the offence punishable under Section 304-B/34 IPC. Additionally,
charge was also framed for the offence punishable under Section 498-
A/34 IPC.
12. The evidence of the prosecution to the effect that victim Alka
(the deceased) was married to the first appellant Hemant Singh on
11.12.2005 and died on 05.10.2007, as a result of burn injuries suffered
in the matrimonial home on 28.09.2007 is not disputed. The facts
relating to the marriage, and birth of the child out of the wedlock, have
been proved by Bachan Singh (PW2) and Satender Kumar Singh
(PW3). The facts relating to burn injuries suffered before noon time on
28.09.2007 and the death occurring as a consequence thereof at 11:20
PM on 05.10.2007 stand established through the testimonies of Dr.
Abhimanyu Sharma (PW13), Dr. Babu Lal Rulania (PW14) and the
post-mortem examination report (Ex.PW10/A) given by autopsy
doctor, Dr. Vijay Dhankar (PW10).
13. There can be no dispute as to the fact that Alka suffered an
unnatural death due to burns, within two years of her marriage, in her
matrimonial home. Though, in her „dying declaration‟ (Ex.PW1/A) to
the Executive Magistrate (PW1) on 28.09.2007, Alka had stated that
she had been intentionally set afire by the husband and relatives,
investigating police officer (PW17) did not believe this, to be true. As
mentioned above, she did not seek prosecution on the charge of murder
under Section 302 IPC. The chargesheet submitted in the court
contained no evidence except for reference to the „dying declaration‟,
indicating it to be a case of culpable homicide. Though charge was
framed by the trial court for the offence under Section 302 IPC, the
trial court found it to have remained unsubstantiated. Its observations
and conclusion vis-a-vis this charge are summarized in para 82 of the
impugned judgment which reads as under :-
"The prosecution has failed to connect the accused
persons with the commission of murder of deceased Alka.
No eye witness to the incident has been produced by the
prosecution to show that deceased Alka was burnt by
accused persons on the day of incident. The prosecution
has also failed to establish the presence of any of the
accused at the spot on the day of incident. In the charge-
sheet itself, it is case of prosecution that no accused was
present at the spot. Even the prosecution has failed to
establish the circumstances on record to complete the
chain of events to show the accused persons committed
the murder of deceased. The prosecution has failed to
establish that accused persons murdered the deceased
Alka by pouring kerosene oil on her on the day of
incident as their presence at the spot at the time of
incident has not been established convincingly.
Therefore, in my considered opinion, accused persons
are liable to be acquitted for the commission of murder
of deceased under Section 302/34 IPC. "
14. The State did not challenge the above result of the trial of the
appellants on the charge of murder under Section 302/34 IPC. Even
otherwise, there is no good reason shown for us to reach a different
conclusion on this subject. Thus, the acquittal of the appellants for
offence under Section 302/34 IPC has attained finality.
15. The trial court found the evidence of the prosecution, in general,
and of Bachan Singh (PW2) and Satender Kumar (PW3), in particular,
worthy of reliance. Believing their word, and accepting the dying
declaration (Ex.PW1/A) made to the Executive Magistrate (PW1), it
was convinced as to the involvement of appellants (and of mother-in-
law) (since deceased) in treating the victim with cruelty on account of
insufficient dowry "soon before" her unnatural death in the
matrimonial home and, thus, invoked the presumption of Section 113-
B of the Indian Evidence Act, 1872 ("the Evidence Act") and found
them guilty, on the charge for offences punishable under Sections 304-
B read with Section 34 IPC and 498-A read with Section 34 IPC. By
the impugned order, the first appellant (husband Hemant Singh) was
sentenced to imprisonment for life with fine of Rs.10,000/- for the
offence under Section 304-B/34 IPC. The other appellants, convicted
for the same offence, were awarded rigorous imprisonment for ten
years with fine of Rs.10,000/- each. All the convicted persons were
additionally awarded rigorous imprisonment for two years with fine of
Rs.5,000/- each, on the charge for the offence under Section 498-A/34
IPC.
16. The Evidence Act declares through Section 101 that one who
desires the Court to give judgment as to any legal right or liability
depending on the existence of facts which he asserts must prove that
those facts exist. The law places the burden of proof on the person
who would fail if no evidence were given on either side. In criminal
trials, the prime burden of proving the existence of facts (from which
complicity of the accused is to be shown) is that of the prosecution.
Section 59 of the Evidence Act states that all facts (except the contents
of documents or electronic records) may be proved by oral evidence.
This is subject to the qualifying norm in Section 60 stipulating that oral
evidence must, in all cases whatever, be direct. The rules of evidence,
thus, do not ordinarily permit hearsay. There are, however, exceptions
to this general rule, evidence in the nature of "dying declaration" being
one of such exceptions, as provided, and to the extent allowed, by
Section 32(1).
17. Dying declaration is predicated on the principle that the sense of
impending death has the same effect on a person‟s mind as that of a
conscientious and a virtuous man on oath [nemo moriturus
praesumitur mentire]. When a person reaches a point of death and
every hope is gone, it is believed that motive to speak falsehood is
silenced and the mind is induced by powerful consideration to speak
the truth. The aforesaid principle can, however, not be treated as a
universal rule that all dying declarations state the truth and nothing but
the truth. It is no doubt true that dying declarations can be acted upon
even without corroboration but before it is accepted, the court has to be
satisfied that the dying declaration is true and voluntary. This requires
a careful and detailed scrutiny of the dying declaration to rule out
possibility of tutoring, prompting or imagination. When dying
declaration is suspicious, it should not be acted upon without
corroborative evidence. It is in this context that in P.V. Radhakrishna
Vs. State of Karnataka 2003 (6) SCC 443, the Supreme Court observed
that dying declaration like any other piece of evidence has to be tested
with great care and caution as the author is not subjected to cross-
examination and when the court on careful scrutiny is satisfied that it is
true and free from any effort to induce the deceased to make a false
statement and if it is coherent and consisting, it can be made the basis
for conviction, even if there is no corroboration.
18. In the case of oral evidence, the law expects the Court to
separate, to use a cliché, grain from the chaff or, to put it simply, truth
from the falsehood. Thus, it is permissible for the ocular testimony of
a witness to be partially rejected to the extent it suffers from
embellishments even while it is partially accepted, and acted upon, to
the extent it is reliable or finds corroboration from other material of
unimpeachable character. In the case of dying declaration, however,
the courts generally demand absolute guarantee of the accuracy and the
truth of the statement before it is accepted; this, given the fact that the
maker of dying declaration is not available for the credibility or
veracity of the statement attributed to him to be tested through the tool
of cross-examination. It being an exception to the general exclusionary
rule of hearsay, it may become unsafe to make an attempt at
disengaging or unravelling the truth. When such exercise is besmirched
or discombobulated, it is well nigh impossible for the credibility or
truthfulness of the assertion made in the dying declaration to be judged
with certainty.
19. For various factors and reasons, we are not satisfied with the
veracity of the evidence concerning the dying declaration (Ex.PW-1/A)
in the case at hand. The author‟s version about the incident and how
she got burnt is perceptibly wrong and incorrect. She has attributed a
pro-active role to the so called perpetrators, seven in number, by
describing that they had poured kerosene oil, though as per the
evidence adduced and accepted by the police and the trial court, they
were not present at the time of occurrence. The manner in which
questions put were answered and different persons - even those
belonging to the extended family - were named creates further doubt.
Alka did mention and refers to the telephone call to the police, a day
earlier on 27th September, 2007, and how the family members had
intervened and brought about a compromise. We perceive that Alka
felt let down that the compromise induced by the family members was
not adhered to and, therefore, was constrained to take the extreme step.
This possibly reflects the reason why in her perception the Nanad
(Anita) and her husband (Dharmesh), Bua (Maya) and Jeth (Lala) were
responsible for what had happened. She named the husband (Hemant)
and stated that he was involved in the burning, though she accepted
that he had brought her to the hospital. She did not name her other
Nanad (Soni) in answer to the third question, but went on to point
finger at her in response to the fourth question alleging that she used to
abuse and taunt her.
20. The Executive Magistrate was expected to elicit information
from the victim with a view to find out her version (as to the
circumstances in which she had received the burn injuries), for, in the
event of she succumbing (despite medical treatment) it to be preserved
and made available as valuable evidence for the case to be taken to
logical end. The victim had indeed suffered 40% burn injuries and had
been brought to the hospital for treatment. There was, however, no
occasion for her to know or ascertain such minute facts as the MLC
number against which she had been admitted for treatment. It is
strange that, in the answer to the second question, reference came to be
made not only to the extent of her burn injuries but also to the
particulars of the MLC that had been recorded. Clearly, such facts
could not have come from her mouth. Apparently, the Executive
Magistrate (PW-1) had added facts from his knowledge projecting it,
for the record, to be the statement of the victim. We have quoted the
third question and the response thereto and have to observe that the
question itself, as framed and recorded, raises apprehension as to the
manner in which the executive Magistrate PW-1 had gone about
recording the statement. The formulation of the said query, almost
putting words in the mouth of the victim, is questionable and
unsupportable and leaves us with a sense of disquiet. Thus, we have
hesitation, and express our inability as such, in relying upon the dying
declaration (Ex.PW-1/A). This aspect has been elucidated and
examined below.
21. The FIR had been registered on 28.09.2007 at 05:10 PM on the
basis of the statement (Ex.PW1/A) made by the victim from the
hospital bed to the Executive Magistrate (PW1). During the
investigation, on the same date, PW17 (investigating officer) had
recorded the statement (Ex.PW2/DA) of Bachan Singh (PW2), the
father of the victim under Section 161 Cr.P.C. The Executive
Magistrate (PW1) had continued with inquest proceedings after the
victim had passed away on the night of 05.10.2007. In these
proceedings, he recorded the statement (Ex.PW1/B) of Bachan Singh
(PW2). The court testimony of Bachan Singh (PW2), to the extent it is
relevant in the context of allegations of cruelty and harassment for
dowry, needs to be quoted verbatim, as under :-
"xxx
After the marriage my daughter started living with
the accused at the matrimonial home at Mandawali.
I gave articles worth Rs.3 lacs in the marriage
which included silver and gold ornaments. List of
articles was not given to the police. All the
household articles were given such as T.V, fridge,
furniture, etc. After marriage my daughter was not
treated well by the accused persons. She used to be
harassed by the accused persons. They used to taunt
that sufficient dowry articles were not given. My
daughter used to be harassed on account of demand
of dowry. Whenever my daughter complained about
her harassment, I told her that by the passage of time
everything would settle in the time and by these
assurance I used to sent her to her matrimonial home.
Accused Lal wati, Soni, Ajeet Singh, Hemant, Kamlesh
and Maya used to harass my daughter. Accused
Dharampal and Anita also used to harass my on
account of dowry as and when they used to visit her
matrimonial home. Accused used to tell that in case
money not given to them they would not keep her in
the matrimonial home. They told that they had go get
married Soni and in case dowry is given they would
get her married. When dowry was not given my
daughter was abused and was not even provided food
by the accused persons. Accused persons told my
daughter that since her father was a lawyer, he had lot
of money and he should pay. On 27.09.07 accused
persons Lalwati, Hemant, Ajit, Soni, Anita,
Dharampal, Maya and Kamlesh gave beatings to my
daughter Alka by taunting her that why she was not
bringing cash. On coming to know this fact, I
alongwith my son Satinder, Son in laws Asha Ram and
Prem Chand and my cousin Dharam Singh went to the
matrimonial home of my daughter. My daughter had
already give a call at no. 100 to the police and the
police had already taken accused Hemant with them in
the Police Station. Other accused persons were
present in the house. Accused Hemant also returned
from the Police Station at about 8 p.m. I told accused
persons not to harass and beat my daughter. Accused
persons assured that they would treat my daughter
well in future. Thereafter we returned home at about
11 p.m.
"xxx
All the accused persons were demanding to give
articles in Chuchak since my daughter had given birth
to a son. I had shown my inability in this regard and
thereafter all the accused persons had started
torturing her on this count. I was in the hospital,
where my daughter had told me that she was ablazed
by pouring kerosene oil by the accused persons
present in the court today xxx"
22. Before we proceed further, we may also note as to what Satender
Kumar (PW3) had to say on the subject. His testimony, to the extent
relevant here, is as under :-
"xxx
In the marriage 4-5 lacs were spent and all household
articles were entrusted to the accused persons during the
marriage for their use. After the marriage for 10-15 days
she remained happily and thereafter all the accused
persons had started ill-treating her for demanding more
dowry. Lalwati mother of the accused Hemant used to
abuse her. She used to harass her by saying that my
sister was not getting up early nor she used to prepare
meals. Lalwati accused had also demanded more money
as less was given in the marriage. Accused Soni and Ajit
also used to demand more money from my sister Alka as
my father had retired and he had received enough money
from his retirement. My sister Alka used to tell all these
things as and when she used to come our home or on
telephone".
23. The deceased in her statement (Ex.PW1/A) to the Executive
Magistrate (PW-1) was pointedly questioned about the demand from
her in-laws at the time of the marriage. All that she would state in this
context was that cash in the sum of ₹35,000 had been given. Yet, her
father (PW-2) claimed that he had given dowry articles worth ₹ 3
lakhs, including silver or gold ornaments, in addition to various
household goods such as fridge, TV and furniture. The brother (PW-3)
talked of expenditure in the range of ₹4 to 5 lakhs. These claims and
versions are contradictory. Bachan Singh (PW-2) spoke about
demands of valuable gifts in the ceremonies connected to the birth of
the child which is not even remotely mentioned by his son (PW-3).
Both PW-2 and PW-3 deposed about harassment in connection with
dowry in general terms. They would indict the eight persons who were
brought to trial as the perpetrators of such cruelty or harassment,
without clarifying as to how such relatives as were not even living
under the same roof (i.e. married sister-in-law, Anita; her husband,
Dharampal; Mausi Kamlesh and Bua Maya) could or would have
participated in the acts of harassment or physical assault by others
living in the matrimonial home.
24. Seen against the light of what the deceased had to say from the
death bed, PW-2 and PW-3 have apparently made an attempt to
indulge in exaggeration. Noticeably, in the dying statement (Ex.PW-
1/A), the deceased had attributed to appellant Soni (Nanad) abusive
behaviour. There was no allegation made about she having also made
demands for dowry. The taunts connected to the dissatisfaction with
the dowry given were attributed only to the mother-in-law, Lalwati.
Yet, PW-3 accused the appellant Soni also to be one of those who had
demanded money from the victim. PW-2, in fact, went to the extent of
stating that all these appellants, including Soni, had given beatings to
deceased on 27.09.2007 in connection with their grievance that she had
not brought money from her parental family. As we would see in due
course, the incident of 27.9.2007 had not involved any beating of the
deceased in the matrimonial home.
25. The dying declaration (Ex.PW-1/A) was not a truthful account
of the events of 28.09.2007 inasmuch as the investigation clearly
showed that the victim had indulged in self-immolation. She had, thus,
made an attempt to falsely implicate the appellants for complicity in
her burn injuries. The allegations made by her that the appellants had
poured kerosene on her and set her on fire being a fiction intentionally
created, shows her word in this regard in poor light. Since her father
(PW-2) and brother (PW-3) had borrowed this version from her and
would continue to harp on the same theory even during the trial, it
adversely affects their credibility as well.
26. On the aspect of narration of events of 27 th September, 2007, the
testimony of Bachan Singh (PW-2) is not wholly correct.
Undoubtedly, the deceased had made a call (on phone No.100) to the
police on the said date. This had resulted in DD No. 20A (Ex.PW-7/A)
being recorded in the police station at 2.18 p.m. As stated by Bachan
Singh (PW-2), the police had made an inquiry into the said report at a
stage when the parental side had also converged on the scene, again at
the instance of the deceased. The formal inquiry on behalf of the
police station was made by Head Constable Ramesh Chand (PW-7).
His testimony reveals that even though in the telephonic call resulting
in DD No. 20 A (Ex.PW-7/A) being recorded, harassment by the in-
laws ("sasural wale pareshan kar rahe hain") was alleged, at the time
of local inquiry by him, the deceased had told the police official (PW-
7) that her husband (appellant Hemant) would remain at home, not
earn anything and never provide money (to the wife) even for purposes
of milk for the child. PW-7 is on record to state that when he had
questioned the victim in the presence of her sister and other relatives,
she had told him that no quarrel or beating had taken place. The
parties had entered into a compromise and so the matter was closed by
PW-7, advising the victim to approach CAW cell or the local police in
case of any further complaint.
27. During the cross-examination of PW-2 it was brought out by the
defence that appellant Hemant (the husband) was earlier employed on
temporary basis in a hospital. At the time of the marriage being
settled, the parental side had been assured that he (Hemant) would get
a permanent job in place of his father "on compassionate grounds". He
was not sure as to whether the appellant had actually secured a
permanent employment. The defence did not make attempt to discredit
the prosecution evidence on the subject or adduce any evidence to
affirm that the allegations of he (appellant Hemant) being a person
with wayward ways with no regular income, one who was showing
neglect to his wife and child, are not correct.
28. Seen against the above light, the evidence of PW-7 must be
believed to the extent he deposed about the grievance of the victim
being essentially against the husband (appellant Hemant) mainly
concerning his unemployed status and the neglect shown towards her
and the child rendering them in miserable state of wants for basic
needs for survival. From this, it naturally follows that the evidence of
PW-2 about the incident of 27.9.2007 involving beatings given to the
victim cannot be accepted as the correct account.
29. The trial court found the evidence adduced by the prosecution to
have convincingly established that the deceased had been subjected to
cruelty and harassment by the appellants "for bringing less dowry" and
in order to pressurize her "to bring more money and articles". Whilst
holding the charge for offence under Section 498A/34 IPC to have
been proved, the case for the prosecution for the offence of dowry
death punishable under Section 304 B IPC was also held brought home
on the basis of presumption under Section 113-B of the Evidence Act.
The rule of presumption in the statutory provision reads as under:-
"113-B. Presumption as to dowry death.--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.
Explanation.--For the purposes of this section,
"dowry death" shall have the same meaning as in
section 304-B of the Indian Penal Code (45 of
1860).]
30. Having regard to the observations made earlier, we are not
satisfied with the evidence indicating cruelty or harassment meted out
to the victim to be "for, or in connection with, any demand for dowry".
The fact that the family members of Hemant had intervened and
pacified the matter on 27th September, 2007 and Bachan Singh (PW-2)
and Satender Kumar Singh (PW-3), and others who had come with
them, were satisfied would contra-indicate the claim that money or
dowry was demanded. In these circumstances, we are unable to uphold
the view taken by the trial court for invoking the presumption under
Section 113-B of Evidence Act or holding the charge of dowry death
under Section 304 B IPC to have been proved.
31. We must, however, note here that the offence under Section 498
A IPC is not necessarily connected to harassment of a married woman
to coerce her or her relatives to meet unlawful demands for property,
dowry etc. The offence of cruelty to the married woman is defined in
Section 498A IPC to cover and include other wilful conduct
unconnected with the dowry demands.
32. Before proceeding further, we may extract the provision
contained in Section 498A IPC which reads thus:-
"498A. Husband or relative of husband of a woman
subjecting her to cruelty.--Whoever, being the husband
or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall also
be liable to fine.
Explanation.--For the purpose of this section, "cruelty"
means--
(a) any wilful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person
related to her to meet such demand."
33. A bare reading of the above provision would show that "cruelty"
of the nature covered by explanation (b) is relatable to the presumption
clause under Section 113-B of the Evidence Act leading to conviction
for the offence under Section 304 B IPC. Failure of the prosecution to
prove such cruelty as is covered by the restricted meaning of the
expression given in explanation (b) to Section 498 A IPC does not
mean the charge under Section 498A IPC should also fail. If the
prosecution is able to show from the evidence that the accused had
subjected the victim to "cruelty" within the mischief of explanation (a),
the said charge can still be held proved. Further, even if the charge of
dowry death (under Section 304 B IPC) is not established, in a case
where the married woman has died on account of suicide committed
against backdrop of cruelty by his husband or his relatives, it can still
be examined if the husband or his relatives have been guilty of
abetment of suicide, which itself is an offence punishable under
Section 306 IPC.
34. The word "abetment" is defined in Section 107 IPC as under:-
"107. Abetment of a thing.--A person abets the doing of
a thing, who--
First -- Instigates any person to do that thing; or
Secondly --Engages with one or more other person or
persons in any conspiracy for the doing of that thing, if
an act or illegal omission takes place in pursuance of
that conspiracy, and in order to the doing of that thing;
or
Thirdly -- Intentionally aids, by any act or illegal
omission, the doing of that thing.
Explanation 1.--A person who, by wilful
misrepresentation, or by wilful concealment of a material
fact which he is bound to disclose, voluntarily causes or
procures, or attempts to cause or procure, a thing to be
done, is said to instigate the doing of that thing.
Explanation 2.--Whoever, either prior to or at the time
of the commission of an act, does anything in order to
facilitate the commission of that act, and thereby
facilitate the commission thereof, is said to aid the doing
of that act".
35. For present context, it is pertinent to take note of another rule of
presumption as contained in Section 113-A of the Evidence Act which
provides thus:-
"113-A. Presumption as to abetment of suicide by a
married woman.--When the question is whether the
commission of suicide by a woman had been abetted by
her husband or any relative of her husband and it is
shown that she had committed suicide within a period of
seven years from the date of her marriage and that her
husband or such relative of her husband had subjected
her to cruelty, the Court may presume, having regard to
all the other circumstances of the case, that such suicide
had been abetted by her husband or by such relative of
her husband."
Explanation.--For the purposes of this section, "cruelty"
shall have the same meaning as in section 498A of the
Indian Penal Code (45 of 1860)".
36. If the rules of presumption contained in Section 113-B and 113-
A of the Evidence Act were to be compared, it would be noticed that
the former is intended to cover cruelty of the nature described in
explanation (b) whilst the latter takes care of cruelty of the nature
specified in explanation (a) of Section 498 A IPC. It is essential in
both for the victim to be a woman who must have suffered unnatural
death within a period of seven years from the date of her marriage, the
death being preceded by cruelty of the specified nature. It is pre-
requisite of Section 113-A of Evidence Act that the death must have
occurred on account of suicide.
37. Upon arguments being raised for the conviction to be converted
from one under Section 304 B IPC into one under Section 306 IPC, the
learned counsel for the appellants pointed out that no charge for the
latter offence was framed. This objection, however, needs only to be
noted and rejected for the reason the law permits, per Section 222(2)
Cr.P.C. for an accused acquitted of the offence of a higher degree to be
convicted for lesser offence, without a formal charge being framed,
though, of course, depending on actual evidence on record. [K Prema
S. Rao & Anr. Vs. Yadla Srinivasa Rao & Ors., (2003) 1 SCC 217]
38. The prosecution has been successful in bringing home the facts
that the victim having become a mother within one year of her
marriage was feeling harassed in the matrimonial home. Her
grievances were essentially directed against the conduct of the
husband. She was constrained to commit suicide by self-immolation
much before completion of second year of her marriage. There is
nothing to show that the deceased was a person hyper-sensitive to
ordinary petulance, discord or differences arising out of day-to-day
life. It is not a matter of routine that a young mother, nursing an infant
of 7/8 months‟ age, would suddenly for no reason decide to take her
own life. She had made an attempt to lodge protest and seek recourse
to police intervention just one day before committing suicide. Though
the DD entry which was lodged on 27.9.2007 generally noted her
grievance about harassment in the matrimonial home, during enquiry it
came out that she was in deeply disturbed state of mind on account of
conduct of the husband (appellant Hemant). The fact that after the
relatives (on both sides), perhaps with addition of some counsel from
the police official, had attempted to bring about rapproachment on that
day (27.9.2007), she felt gagged and constrained to bring an end to her
misery by committing suicide. This is indicative of she having reached
a point of no return, having faced extreme circumstances of cruel
treatment.
39. Thus, we have no hesitation in concluding that though cruelty or
harassment by the husband (appellant Hemant) was not for, or in
connection with, demands for dowry, his wife (the victim) committed
suicide due to his wilful conduct of such nature as had gravely affected
her mental wellbeing in the matrimonial home, constituting cruelty
within the meaning of clause (a) of the explanation appended to
Section 498A IPC. [Thanu Ram vs. State of MP (2010) 10 SCC 353]
40. In the facts and circumstances, reliance by the defence on Harjit
Singh v. State of Punjab (2006) 1 SCC 463; Amalendu Pal @ Jhantu
v. State of West Bengal (2010) 1 SCC 707 and M. Mohan v. State AIR
2011 SC 1238 is misplaced as the factual matrix in the case at hand is
distinguishable. In Harjit Singh, there was no proof of suicide being
the cause of death. In Amalendu Pal @ Jhantu, the prosecution had
not adduced any evidence of instigation or provocation. In M. Mohan,
the proximate link between the cause of grouse and suicide was
missing.
41. For the foregoing reasons, we find that the prosecution has
proved that the husband (appellant Hemant) had subjected his wife (the
deceased) to cruelty within the meaning of the expression defined in
explanation (a) appended to Section 498A IPC. Since it is proved that
the victim had committed suicide within a period of seven years from
the date of her marriage with appellant Hemant, the death being
preceded by his conduct subjecting her to cruelty, there is a case made
out for presumption to be raised under Section 113-A of the Evidence
Act about the husband (appellant Hemant) having abetted the
commission of suicide by her, which constitutes offence punishable
under Section 306 IPC.
42. In the result, the conviction of the appellant Hemant for offence
punishable under Section 498A IPC, and order on sentence there
against as awarded by the trial court, is upheld. The conviction under
Section 304 B IPC recorded by the trial court is modified to the lesser
charge for the offence under Section 306 IPC. In the facts and
circumstances, while we set aside the punishment awarded for the
offence under Section 304 B IPC, we sentence the appellant Hemant to
rigorous imprisonment for eight years with fine of ₹10,000/- for
offence under Section 306 IPC. In case of default in payment of fine,
he shall undergo further simple imprisonment for three months. Both
the substantive sentences run concurrently and he shall be entitled to
set off for the period of detention during investigation, trial and
pendency of appeal under Section 428 IPC.
43. The appeal of Hemant stands disposed of in the above terms.
44. It is, however, clear from the facts and circumstances brought
home that the charge for the offence under Section 498 A IPC levelled
against the relatives of the husband cannot be held to be proved. It is
well-settled that cruelty within the meaning of Section 498A IPC must
be persistent, grave and unbearable and must have been inflicted with
an intention to force the woman to end her life or to cause grave injury
or danger to her mental or physical well-being. They had participated
in the mediation and compromise talks.[See Randhir Singh & Anr. Vs.
State of Punjab (2004) 13 SCC 129]
45. The mother-in-law (Lalwati) has since died and the case against
her has abated. The allegations made by Bachan Singh (PW-2) and
Satender Kumar Singh (PW-3) about the victim having been set afire
by the appellants have been found to be untrue. The allegations of
harassment for dowry are also not convincing. The case set up by
Bachan Singh (PW-2) about physical assault indulged in by the
appellants on 27.9.2007 is not substantiated.
46. The appeals of said convicted appellants namely Sony @
Sangeeta, Maya, Ajit, Kamlesh, Anita and Dharampal are allowed.
Their conviction and sentences are set aside. They stand acquitted of
all charges. They were released on bail by various orders pending
hearing on their appeals. The bail bonds furnished by them are
discharged.
47. Appellant Hemant be informed about the result of his appeal by
a copy of this judgment to be supplied to him through Superintendent
jail.
R. K. GAUBA
(JUDGE)
SANJIV KHANNA
(JUDGE)
DECEMBER 16, 2015
ss/nk
