Guddu vs State Nct Of Delhi
2015 Latest Caselaw 6697 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Judgment reserved on :03.09.2015
                                      Judgment delivered on :08.09.2015
+      CRL.A. 628/2013
       GUDDU                                                  ..... Appellant
                             Through       Appellant with his counsel
                                           Mr. Ajay Kumar Chopra, Adv.

                             versus

       STATE NCT OF DELHI                             ..... Respondent
                     Through               Ms. Kusum Dhalla, APP for the
                                           State along with Inspector
                                           Krishan Kumar.
+      CRL.A. 568/2013
       SUDHA                                                  ..... Appellant
                             Through       Appellant with her counsel
                                           Mr. Ajay Kumar Chopra, Adv.

                             versus

       STATE NCT OF DELHI                             ..... Respondent
                     Through               Ms. Kusum Dhalla, APP for the
                                           State along with Inspector
                                           Krishan Kumar.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 These are two appeals. The appellants before this Court are

Guddu (the husband of the victim) and Sudha (the sister-in-law of the

victim). Appellant Guddu has been convicted under Section 304-B of

the IPC as also Section 498-A of the IPC. He has been sentenced to

undergo RI for a period of 10 years and to pay a compensation of

Rs.30,000/- and in default of payment of compensation, to undergo SI

for 6 months for his conviction under Section 304-B of the IPC. For his

conviction under Section 498-A of the IPC, he has been sentenced to

undergo RI for a period of 3 years and to pay a fine of Rs.10,000/- and

in default of payment of fine to undergo SI 9 months. Appellant Sudha

has been convicted under Section 498-A of the IPC. She has been

sentenced to undergo RI for a period of 3 years and to pay a fine of

Rs.10,000/- and in default of payment of fine to undergo SI 9 months.

The sentences were to run concurrently for both the appellants.

2 This is a case of an unfortunate victim who had died in her

matrimonial home. She was Pratibha Devi (hereinafter referred to as the

deceased). The deceased had been married to the appellant Guddu on

07.12.2009 as per Hindu rites. She had succumbed to her death on

13.02.2010. This was on the first floor of her matrimonial home located

at Q-49, Krishan Vihar, Delhi. The time of the incident was 01:30 pm in

the afternoon. The victim had died by hanging. Her cause of death was

asphyxia.

3 DD No. 27-B (Ex.PW-11/A) was recorded at 01:50 PM at the

local police station PS Sultan Puri giving information to the effect that

one girl had been murdered in the aforenoted residence and her dead

body was lying there. The PCR had separately been informed (Ex.PW-

13/A). The information recorded by the PCR was also to the effect that a

married lady Pratibha aged about 26 years and married 2-3 months ago

was found lying dead in her room. This information has been given by

her sister-in-law Roopa. This DD was handed over to the Investigating

Officer SI Jaipal (PW-22) who along with constable Narain Das (PW-

18) reached the spot. A dead body of a lady was lying on the floor

covered with a red chunni. Her name was revealed as Pratibha. There

were ligature marks on the neck of the deceased. The SDM was

informed.

4 The SDM Dinesh Jha (PW-20) reached the spot and recorded the

statement of the parents of the victim i.e. her father and her mother. The

mother of the victim Sianta Devi was examined as PW-3. Her father

Amirat Ram was examined as PW-4. The mobile crime team which had

been summoned to the spot had also taken photographs of the scene of

the crime which has been proved through the testimony of SI Chand

Singh (PW-17) and a report to the said effect (Ex.PW-17/A) was

prepared. The site plan (Ex.PW-19/A) was prepared by draftsman SI

Manohar Lal (PW-19) showing that the spot was on the first floor of Q-

49, Krishan Vihar, Sultan Puri which was the matrimonial home of the

victim and her husband Guddu.

5 The prosecution in support of its case has examined 25 witnesses.

In the statement of the accused persons recorded under Section 313 of

the Cr.PC, they have stated that this is a false case and they have been

falsely implicated. No evidence was led in defence.

6 On the basis of the aforenoted evidence, both oral and

documentary, the accused persons were convicted and sentenced as

aforenoted.

7 On behalf of the appellants, arguments have been addressed in

detail. Qua appellant Sudha it is stated that she was the sister-in-law of

the victim and admittedly living in her own separate residence at H-225,

Bawana, Delhi; she had been married 20 years ago and apart from one

incident where as per PW-3, a phone call had allegedly been made by

her to the mother of the victim, there is no allegation against her.

Further, submission being that there is no record of this so-called phone

call. In fact the whole case of the prosecution is based on this phone call.

Attention has been drawn to the testimony of PW-4 whereas in his

cross-examination, he has admitted that there was no phone installed in

their house; how and when this phone call was received by PW-3 has

not been explained by the prosecution; in the absence of this phone call,

dowry demand as sought to be established by the prosecution is not

made out; no case of cruelty is also made out against the appellant

Sudha. Her conviction is wholly ill-founded. The conviction of appellant

Guddu is also ill-founded as to establish an offence under Section 304-B

of the IPC, it was incumbent upon the prosecution to have proved that

there was a demand in connection with dowry which is wholly missing

in this case. Learned counsel for the appellant to support his

submissions has placed reliance upon II (2013) DMC 756 (Del.)

Krishna and Anr. Vs. State of Delhi, II (2013) DMC 1 (SC) Indrajit

Sureshprasad Bind and Others Vs. State of Gujarat and (2013) 7 SCC

219 S. Anil Kumar @ Anil Kumar Ganna Vs. State of Karnataka.

8 Arguments have been refuted. It is pointed out that on no count,

does the impugned judgment call for any interference. The burden under

Section 304-B of the IPC has been shifted upon the accused and it is for

the accused to have proved how the death of the victim occurred within

less than 6 months of the marriage at the matrimonial home.

Presumption under Section 113-B of the Indian Evidence Act has been

rightly invoked by the trial Judge. The impugned judgment calls for no

interference.

9 Arguments have been heard. Record has been perused.

10 Testimony of the mother and father of the victim is most relevant

to answer these submissions and counter submissions. The mother of the

victim Sianta Devi was examined as PW-3. She deposed that her

daughter (handicapped) was married to accused Guddu (also

handicapped) on 07.12.2009 accordingly to Hindu rites. They had given

dowry articles to her daughter at the time of marriage which included

Rs.50,000/-, one tola gold, 5- /12 tota silver jewellary, some utensils and

some articles for Tilak. They had arranged this money by selling their

agricultural land. One day before the fateful day i.e. at about 08:00 PM,

a telephone call was received by her; this telephone call was made by

Sudha and she demanded one palang, one colour T.V. and one sewing

machine; PW-3 asked to let her talk to her daughter; Sudha told her that

unless PW-3 gives these articles, she would not be allowed to speak to

her daughter. The next day, they learnt that their daughter had died.

Further PW-3 deposed that since these aforenoted articles i.e. palang,

colour T.V and sewing machine had not been given, the appellants

killed her daughter. In her cross-examination, she admitted that this

demand was made for the first time on telephone by Sudha and Guddu.

Her daughter was maltreated. After the marriage of her daughter, she

had met her only once. She had spoken to her daughter on telephone 3-4

times. On the first phone call which was 15 days after the marriage, she

stated that she was alright. She did not say anything against the accused.

Her daughter again called PW-3 after about 20 days and told her that

Guddu used to beat her but she did not tell her the reason for such

beatings. On the occasion of Poornima, PW-3 again called her daughter

and she again told her that accused persons used to beat her but she did

not tell her the reason for such beatings. She admitted that prior to the

telephone call made one day before the death of her daughter, no

demand was made from her. Her another sister Sulekha Devi (PW-6)

was also living in Delhi and she told her about the maltreatment being

meted out to her daughter by the appellants. She denied the suggestion

that the accused have been falsely implicated.

11 The father of the victim Amirat Ram was examined as PW-4. He

has deposed that he got his daughter married to Guddu accordingly to

Hindu rites and they had given dowry in the marriage which

includedRs.50,000/- in cash. Accused persons used to harass his

daughter for bringing less dowry. They were demanding one TV,

Sewing machine and one palang. One day before the day of the death of

his daughter, a telephone call was received by his wife. Sudha and

Guddu talked to his wife and later on his wife told him that both of them

have demanded dowry. They thereafter learnt that their daughter had

died. They reached Delhi where their statements were recorded.

12 In his cross-examination, he admitted that after the solemnization

of marriage, he did not meet his daughter. He had also not spoken to her.

His wife used to speak to his daughter. They does not have any

telephone. His wife used to call on the telephone of their neighbor

whose number he does not remember but it was a landline. His wife had

spoken to his daughter 3-4 times before her death. In his presence, his

wife never talked to his daughter; nothing was demanded by the accused

after solemnization of the marriage till her death. He admitted that his

daughter was handicapped. He denied the suggestion that he is deposing

falsely.

13 Another family member of the victim who was examined by the

prosecution was Sulekha Devi. She was the 'mausi' of the victim and

had been examined as PW-6. She had deposed that the victim was living

in Delhi where PW-6 was also living. One month before her death, PW-

6 had spoken to the victim wherein the victim had told her that Guddu

used to beat her but she did not disclose the reason for the beating; she

stated that there were minor disputes. She denied the suggestion that

Guddu and Sudha had given beatings to the victim on account of dowry.

In a further part of her cross-examination, she reiterated that the dispute

between the victim and her husband largely related to day to day marital

tiffs.

14 Learned counsel for the appellant has highlighted these versions

of PW-3, PW-4 & PW-6 to support a submission that on no count a case

of dowry death is made out as admittedly even (as per PW-3 who was

the only person who had a direct conversation with the victim after her

marriage) apart from the single telephone call which has been received

one day before the death of her daughter, there was no demand of dowry

by the accused persons from the victim's family.

15 This submission of the learned counsel for the appellants is

correct. The testimony of PW-3, PW-4 & PW-6 clearly shows that apart

from the telephone call which was received one day prior to the death of

the victim, no demand of dowry was made prior thereto. Submission of

the learned APP for the State on this count is also noted. There is no

doubt that the death of victim had occurred within less than two months

of the marriage; the marriage having solemnized on 07.12.2009 and the

victim having succumbed to her death on 13.02.2010; there was also

little opportunity for the victim to have had interaction/meeting with her

family. The testimony of PW-3 being that she had met her daughter only

once after her marriage but had spoken to her 3-4 times on telephone. In

the first conversion, she had not stated anything against the accused but

again after 15 days, she informed her that Guddu used to beat her but

she did not disclose the reasons for such beatings. She admitted that it

was not her case that Guddu used to beat her daughter for any dowry

demand. Her version discloses that one day before the death of the

victim a telephone call was made by Sudha to the victim's family

demanding a palang, T.V. and sewing machine. In this context, the

testimony of PW-4 becomes relevant. PW-4 has admitted that there was

no telephone installed in their house. His wife used to speak on the

landline number of the neighbor which he does not remember. As per

PW-3, the telephone call was received by her at 08:00 pm. Her

categorical statement that this call was received by her at her house.

PW-3 did not say that this call was received by her at her neighbour's

house. A specific query was put to both PW-3 & PW-4 on this count but

they were unable to disclose either in whose house this phone was

installed or what was the phone number. In fact in one part of his cross-

examination, PW-25 (Inspector Samarjeet Singh) has stated that this call

was made from an STD booth.

16 The other public witnesses who were the neighbors of appellant

Guddu were Ramesh Kumar and Satbir (PW-1 & PW-2). Both of them

have not supported the version of the prosecution and their evidence

have not been relied upon by the prosecution to advance their case.

17 The post-mortem of the victim was conducted by Dr. Manoj (PW-

9). Her cause of death was opined to be asphyxia pursuant to the ligature

mark on her neck. Apart from the ligature mark, there was an abrasion

of .5 X .2 cm on the front chest which is below the right nipple and one

continusion above knee joint; these injuries as rightly pointed out by the

learned counsel for the appellants, being minor in nature, does not help

the prosecution to advance an argument that the victim was beaten prior

to her death.

18 In the course of investigation, site plan Ex.PW-19/A was prepared

which suggest that the matrimonial home of the victim was on the first

floor. The matter was reported through Roopa, her sister-in-law. She had

made a call to the PCR which is evident from Ex.PW-13/A. Although

her statement was recorded by the investigating agency but the

Investigating Officer did not chose to make her as a witness.

19 The case of the appellants is that appellant Sudha was living in

her matrimonial home at Bawana and their mother was also living her

since last 10 days. In one part of his cross-examination, PW-25 (the

SHO) has admitted that after inquiry it was learnt that Shanti Devi

(mother-in-law of the victim) and Sudha (sister-in-law, the appellant

before this Court) were not present at the spot of incident. In fact no

witness, including the neighbors of the family of the appellant, had

come into the witness box to support the stand that either Sudha or

mother-in-law of the victim were present at the spot. The Investigating

Officer (PW-22) also admits in his cross-examination that after inquiry,

he learnt that Sudha and her mother were not present in the matrimonial

home of the victim at that time.

20 Testimony of PW-23 and PW-8 is also relevant. PW-23 was

Dr.Gajender Chauhan. He was running a clinic by the name Chauhan

Clinic at Sultan Puri where PW-8 (Umesh Kumar) was working as

compounder. They have both deposed that 15-20 persons with a lady

had come to their clinic asking for medical help. There was lot of helter-

skelter going on. PW-23 had not examined the victim. Learned counsel

for the appellants points out that this testimony of PW-23 and PW-8 also

establishes that after the victim had died, 15-20 persons from the

neighbourhood including the appellant Guddu had come to the Chauhan

Clinic and since he was busy, they were asked to wait and they thought

it fit to bring back the lady to the matrimonial home; this throws light on

the conduct of the appellant Guddu which is to the effect that he was

savier and not the offender.

21 The testimony of the Investigating Officer is relevant. In his

cross-examination, PW-22 has admitted that on the spot he inquired

about the cause of death of the victim from the appellant Guddu but

since he was weeping bitterly, he could not record the statement of the

accused. He admitted that Shanti Devi and Sudha were not present at

that time. The accused was finally arrested on 18.02.2011.

22 The sum total of evidence collected by the prosecution, persuades

this Court that the necessary ingredients for a conviction under Section

304-B of the IPC have not been established.

23 The Apex Court in Sunil Bajaj v. State of MP, (2001) 9 SCC 417,

after noticing the provisions of section 304-B IPC had opined that in

order to establish an offence under Section 304-B IPC, following

ingredients must be established before any death can be termed as

dowry death:

(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (2) Such death must have occurred within 7 years of her marriage. (3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband. (4) Such cruelty or harassment must be for or in connection with demand of dowry.

24 It is the last ingredient which has not been fulfilled in this case.

There is no doubt that the victim had died an unnatural death within less

than seven years of her marriage but the question is whether there was

any harassment or cruelty meted out to the victim in connection with

any dowry demand which was to such an extent compelling her to take

her own life. The only incident as depicted in the version of PW-3 is a

single telephone call which she had received from Sudha demanding a

palang, T.V. and a sewing machine; in the statement of PW-3, it has first

been stated by her that Sudha had made the phone call but thereafter it

was improved and stated that both accused Guddu and Sudha demanded

money from her. She categorically stated that this call was received by

her at 08:00 pm in her house. It has come on record that PW-3 did not

have any landline phone. It has been elicited in the cross-examination of

PW-4 that PW-3 & PW-4 did not own a landline. Where the phone call

was received and at which number could not be given either by PW-3 or

PW-4. This becomes relevant as this was the whole foundation of the

case of the prosecution on the basis of which the conviction of appellant

Guddu under Section 304-B of the IPC was founded. The cross-

examination of PW-25 is also relevant. He had stated that this phone call

was received by PW-3 from a STD booth. These different versions caste

a great doubt whether any such phone call was in fact received by the

family of the victim or not. In the absence of this phone call, the

necessary ingredients of Section 304-B of the IPC which entails a dowry

demand would not be made out as the version of PW-3 & PW-4 is

otherwise cogent and clear which is to the effect that apart from this one

single occasion, there was no dowry demand made by the appellants

upon the family of the victim.

25 The last ingredient being missing, the appellant Guddu is

acquitted of the charge under Section 304-B of the IPC. However, his

conviction under Section 498-A of the IPC does not call for any

interference as it has come on record that in all the telephonic

conversions that PW-3 had with her daughter, her daughter told PW-3

that Guddu used to beat her but the reason for such beatings had not

been disclosed by the victim but nevertheless this does not take away the

fact that appellant Guddu used to beat the victim. This version of PW-3

is fully corroborated by the testimony of PW-6 who has also deposed

that she was told by the victim that Guddu used to beat her. PW-4 has

also corroborated this version. The conviction of the appellant under

Section 498-A is confirmed.

26 Appellant Guddu had already undergone incarceration of more

than three years and his sentence under Section 498-A of the IPC was RI

three years. He having completed the sentence, he be released forthwith,

if not required in any other case.

27 Appellant Sudha had been convicted under Section 498-A of the

IPC. The only allegation against her is that a telephone call was made by

her wherein dowry demand had been made. The evidence on record

establishes that there was no phone call of such a nature. Her conviction

under Section 498-A of the IPC is set aside. Her appeal is allowed.

28     Appeals disposed of.



                                       INDERMEET KAUR, J
SEPTEMBER 08, 2015
A