Yogender Kumar @ Rinku And Anr. vs State (Govt. Of Nct Of Delhi)
2016 Latest Caselaw 5474 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


    +    CRL.APPEAL No.1051/2013
                                   Date of Decision: AUGUST 23nd, 2016

         YOGENDER KUMAR @ RINKU AND ANR.
                                                       .... APPELLANTS
                         Through      Mr.Vivek Sharma, Adv.
                         versus

         STATE (GOVT. OF NCT OF DELHI)              ...... RESPONDENT
                         Through      Mr.M.P.Singh, APP.


         CORAM:
         HON'BLE MR. JUSTICE P.S.TEJI

         P.S.TEJI, J.

1. The present appeal has been filed under Section 374 read

with Section 482 Cr.P.C. against the impugned judgment of

conviction dated 19.06.2013 and Order on Sentence dated

03.07.2013 passed by the Addl. Sessions Judge in FIR

No.194/2011 whereby the appellants were sentenced to RI for

ten years with fine of Rs.10,000/- each under Sections 304-B/34

IPC in default of payment of fine, to undergo RI for six months

each. The appellants were also sentenced to undergo RI for

three years with fine of Rs.5,000/- under Section 498A/34 IPC

and in default of payment of fine to undergo RI for four months.

It was also ordered by the Sessions Judge that the sentences

awarded to the appellants/convicts shall run concurrently and

they would be entitled to the benefit of Section 428 Cr.P.C. for

the period during which they had already remained in custody

furing investigation/trial.

2. The case of the prosecution is that on 15.06.2011 at

about 5 am, Duty Constable Omjeet passed telephonic

information at Police Station Kalyan Puri that one Meenakshi,

wife of Yogender, was admitted in the hospital by her Jeth

Rajbir in a burnt condition. On this information, DD No.4-A

was recorded. On receipt of DD No.4-A, SI Haroon Khan

reached LBS Hospital where injured Meenakshi was found in a

burnt condition. She was not in a position to give statement

and was referred to GTB Hospital. Since the burn injuries

were received by Smt. Meenakshi within seven years of

marriage, SDM Preet Vihar was informed. The crime team

was called at the spot and the exhibits were seized from the

spot. The injured was unfit for statement. She expired at GTB

Hospital on 15.06.2011. On 16.06.2011, SDM came at GTB

Hospital. Sh.Vijay Pal Singh, father and Smt.Kaushal mother

came at the hospital with their son Rinku. After proceedings

under Section 176 Cr.P.C., the body was sent for post mortem.

The body was then released to the kins of the deceased. The

statement of Sh.Vijay Pal Singh was recorded wherein he

stated that the marriage of his daughter was solemnized with

the appellant No.1 on 08.03.2011. He gave dowry articles as

per his capacity. After marriage, Yogender and his father

Mahabir made demand of motorcycle and started beating his

daughter. He further stated that he was told by his daughter

that appellant No.1/husband was having illicit relations with a

girl and that on 15.06.2011 he came to know from a person

that his daughter had been burnt and had been admitted to

GTB hospital. He further stated that when they went to

hospital, they were not allowed to meet their daughter. He

stated that the appellants and the Mausi Babli were responsible

for her death. An FIR was registered under Section 498A/304-

B/34 IPC. On 21.06.2011, accused Yogender was arrested in

the present case. Appellant No.2/accused No.2 was arrested on

19.07.2011 after he surrendered in the court. As per the post

mortem report, the cause of death was shock as a result of

ante-mortem flame burns involving 80% of total body surface.

No evidence was found against Babli. On completion of

investigation, the charge sheet was filed against the appellants

under Section 498A/304-B/34 IPC.

3. I have heard the learned counsel for the parties and gone

through the record of the case.

4. The learned counsel for the appellants in support of his

case has raised the grounds that the story set up by the

prosecution is based on concocted facts; that the Trial Court

without considering the defence taken by the appellants and

without applying its judicial mind, passed the impugned order

and order on sentence which shows that the Trial Court has

wrongly interpreted the statements of the prosecution

witnesses, the same being bald statements without any cogent

evidence; that the Trial Court has failed to consider the fact

that the prosecution witnesses PW-4 to PW-6, being the father,

mother and brother of the deceased repsectively, had not

disclosed any particular date and month of alleged demand

from the appellants; therefore, it clearly shows that they are

simple allegations; that it is settled principle of law that a

person shall not be held guilty on the basis of mere conjectures

and implications unless the case is proved beyond reasonable

doubt; that Trial Court committed a grave error in shifting the

burden to prove innocence upon the appellants whereas it is

trite law that the accused is presumed innocent until proven

guilty; that the FIR in the present case was registered on the

statement of complainant Sh.Vijay Pal (father of the deceased)

without any cogent evidence and investigation. PW-13 SI

Haroon Khan in his statement dated 21.04.2012 and cross

examination dated 07.09.2012 categorically admitted that the

parents of the deceased had not made any complaint to him

about cruelty or other things at the time when he reached the

hospital; that a persual of the judgment shows that the High

Court proceeded with a pre-determined mind which is a classic

example in line with famous observation of Saleilles 'One

wills at the beginning the result; one finds the principle

afterwards'; that the Trial Court sketched the circumstances

which were completely at variance to each other to meet the

pre-decided goal of conviction while disregarding the serious

discrepancies in prosecution's case; that the Trial Court totally

ignored the defence statement of DW-3 and the documents

produced by him where the appellant No.1 produced the RC of

his motorcycle and casualty card of LBS Hospital and MLC of

GTB Hospital regarding his treatement for burn injuries and

also the fact that the DW3 was cross examined by the APP,

however the prosecution failed to budge the defence witness in

his defence.

5. In support of its case, the prosecution examined 15

witnesses.

6. PW-1 is HC Veer Pal, Duty Officer. He had recorded

DD No.4-A, Exhibit PW1/A.

7. PW-2 is Sh.Hukam Singh, the then SDM, Preet Vihar.

He deposed that on 15.06.2011 at about 10-10.30 am on

receipt of a call from police that a lady had burnt herself at 9

Block, Khichri Pur Colony and was first taken to LBS Hospital

and from there to GTB Hospital, he immediately rushed to the

hospital and met the doctors. The lady named Meenakshi was

declared unfit for statement. At about 3.15 p.m., he again went

to GTB hospital but she was still unfit for statement. At about

5 pm, he again went to the hospital and came to know that

Meenakshi had expired. On 16.06.2011, the family members

of deceased met him with police officials at GTB Hospital.

The body was identified by Vijay Pal Singh, father and

Sh.Chander Pal, uncle of the deceased vide Exbt. PW-2/A and

Exbt. PW-2/B. He then recorded the statement of Vijay Pal

and conducted inquest proceedings. After post mortem, he

directed the police to hand over the body of the deceased.

8. PW-4/Vijay Pal is the father of the deceased Meenakshi.

He deposed that his daughter/Meenakshi got married to

appellant No.1 on 08.03.2011. At the time of marriage, he had

given dowry as per his capacity. After about a month of her

marriage, the appellants and Babli, mausi of appellant No.1

started demanding motorcycle from his daughter and used to

beat her for the said demand. His daughter informed him when

she visited him that the appellant No.1 was having illicit

relations with a girl. He further deposed that he could not fulfil

the demand of the appellants for the motorcycle. About one

month before the death of his daughter, he along with his wife

had gone to the house of the appellants on receipt of a

telephone call by his daughter that she was being beaten by the

accused/ on account of demand of motorcycle. He deposed that

he had brought back his daughter to his house and after about

8-10 days, the appellant No.1 and Babli came to their house

and took her back and 5-7 days later, his daughter again

informed on telephone that the appellants and Babli had again

started beating her for demand of a motorcycle. He deposed

that on 15.06.2011 a person informed him telephonically that

his daughter had been burnt and was admitted in GTB

Hospital. He along with his wife went to GTB Hospital, but

they were not allowed to meet their daughter by the

IO/Mr.Haroon Khan. He deposed that on 16.06.2011, they

were called in the mortuary for identification of the body of

their daughter. He identified the body of their daughter and his

statement Exbt. PW-2/A was recorded in this regard. After

post mortem, the dead body was handed over to them and he

peformed her last rites and ceremonies. He deposed that the

SDM recorded his statement Exbt. PW-2/C.

9. PW-5 Smt.Kaushal is the mother of the deceased. She

has deposed that her daughter was kept well for about one

month after marriage and after that the appellants along with

mausi of appellant No.1/husband started demanding a

motorcycle from her daughter and on account of this she was

harassed and beaten up by them. She further stated that the

deceased had also told them that the appellant No.1 was having

illicit relations with a girl. She further deposed that when she

and her husband visited the house of accused where again her

daughter informed about the demand of motorcycle by accused

and that she was being beaten on account of the said demand.

Therefore, they had brought her back but after a week,

appellant No.1 and his mausi/Babli came to their house and

took her daughter back.

10. PW-6/Rinku is the brother of the deceased. He also

deposed that his sister was kept well for about a month but

thereafter the appellant No.1 and his Mausi started demanding

motorcycle from them. They were not able to meet their

demand and therefore his sister was being harassed and beaten

by both the accused and his mausi/Babli for the demand of

motorcycle. He further deposed that his deceased

sister/Meenakshi had told them that the appellant No.1 was

having illicit relations with a girl. He further stated that in the

last week of April he and his mother went to the house of

appellants and tried to counsel them and expressed their

inability to give the motorcycle, but the appellants did not

mend their ways. He also stated that his sister had informed

them on telephone that the appellants were harassing her for

demand of motorcycle and that the appellant No.1/husband

was telling her that he would marry some other girl and would

get a lot of dowry in return. He stated his sister also told them

the appellant No.1 was not did not like her and was threatening

to eliminate her.

11. PW-7 is Const. Mohan Lal. He had assisted SI Haroon

Khan in the investigation of the case. On receipt of DD No.4-A

by SI Haroon Khan, he along with SI Haroon Khan had gone

to LBS Hospital and thereafter to the spot. He stated that a

plastic can in burnt condition and another plastic containing a

little amount of kerosene were recovered from the first floor of

the house. Two partly burnt shirts were also lying there. The

cans and shirts were seized.

12. PW-10 is the doctor who had conducted post-mortem on

the body of the deceased. She stated that smell of kerosene was

present and there were deep burns on the arms and forearm

which involved 80% of the total body surface and according to

her, the cause of death was shock as a result of ante mortem

flame burns involving 80% of the total body surface area.

13. PW-13 SI Haroon Khan is the first IO of the case. On

receipt of the DD, he along with Const. Mohan reached LBS

hospital and tried to record the statement of Meenakshi but she

was not in a position to give the statment and was referred to

GTB hospital. He teleponically informed the SDM and asked

the crime team to reach the spot. He stated that at the first floor

of the house in a room there were two plastic cans, one of

which was in a burnt condition while the other was having

little kerosene. Two partly burnt gents' shirts were also found

to be lying there. He inspected the spot and prepared the site

plan. Both the plastic cans and shirts were kept in a cloth

pullanda and the same was sealed. He further deposed that the

SDM could not record the statement of the injured as the

doctor declared her unfit for the same. She was unfit for

recording the statement even at 3.15 P.M. In the evening, he

came to know from Duty Officer, that Meenakshi had expired

in GTB Hospital. He stated that on 16.06.2011, the SDM

recorded the statement of Sh.Vijay Pal, father of the

deceased/Meenakshi, conducted inquest proceedings and got

conducted post mortem of the deceased. On 17.06.2011,

investigation was handed over to Inspector Om Singh and on

21.06.2011, he along with Insp. Om Singh, on receipt of secret

information, went to House No.9/491, Khichri Pur, First Floor

and from there appellant No.1 was arrested.

14. PW-14 is the Inspector Om Singh. On 21.06.2011, he

arrested the appellant No.1 from his house and seized the

wedding card and marriage album. He also arrested appellant

No.2 after he surrendered in court.

15. After conclusion of recording of prosecution evidence,

statements of accused were recorded and an opportunity was

afforded to the appellants to lead defence evidence and in their

defence, three witnesses including appellant No.1 were

examined.

16. DW-1/Rajnish Kumar is the nephew of appellant No.2.

He deposed that he, along with his family, lives on the ground

floor while the appellants with their family live on the first

floor of the property in question. He deposed that on

14.06.2011 at arond 11.30-11.45 pm, his younger sister

Sangeeta informed him 'Bhabhi Ne Aag Laga Li Hai'. He

immediately rushed to the spot and saw appellant No.1

bringing Meenakshi, since deceased, to the ground floor via

stairs after wrapping her in a blanket. She was conscious at

that time. He deposed that he helped the appellant No.1 in

bringing down Meenakshi and while doing so, her head

collided with wall of staircase resulting in a cut on her head.

He deposed that on enquiry at the hospital as to how she got

burnt, she responded that she was not burnt by anyone but

herself caught fire. He deposed that police recorded the

statement of Meenakshi and asked her to put her thumb

impression but she insisted that she would sign the statement

and accordingly did the same. He deposed that the appellant

No.1 had received burn injuries on his head and he was

provided first aid for the same at the hospital.

17. DW-2/Devender Kumar is the mediator of the marriage.

He deposed that he had arranged the marriage between

appellant No.1 and deceased/Meenakshi and at the time of

marriage there was no demand of dowry and after the

marriage, he neither visited the house of appellant No.1 nor

heard anything about any quarrel of dowry demand from the

side of the appellants.

18. The appellant No.1 examined himself as DW-3. He

deposed that his wife Meenakshi, since deceased, was short

tempered and used to quarrel with her parents. He deposed that

on the occasion of Holi, Meenakshi had gone to her parents

where a quarrel took place between her and her uncle. On

23.03.2011, Meenakshi telephoned him to take her back. He

deposed that on the night of 14/15.06.2011 his father/appellant

No.2 was not at home and no quarrel took place between him

and Meenakshi. At about 11.30 PM, Meenakshi got up and

went to kitchen and got burnt. She was taken to hospital where

she deposed that while cooking food, she got burnt and also

signed the statement. He deposed that while trying to

extinguish the fire, his hands got burnt. He deposed that

Meenakshi's family was informed about the incident over

phone, but they visited the hospital only the next day and

stayed there only for 15 minutes, but Meenakshi refused to talk

to them. He stated that he was having a motorcycle since 2009

and that in January, 2011, he bought a Pulsar motorcylce vide

cash receipt, delivery receipt, pollution certificate and

insurance documents. He also produced a copy of his MLC

and treatement record.

19. In his cross examination, PW-4 stated that at the time of

marriage, accused made no dowry demand. His deceased-

daughter came for phera ceremony after 5-7 days of marriage

and at that time also, she made no complaint against the

accused as she was kept well by them for about a month. He

stated that about 5-7 days after the first month of the marriage,

his daugther complained for the first time to which the

appellants and the mausi of the appellant No.1 assured that

they would not harass her. He stated that he had informed the

mediator about the same who assured that the accused would

not harass his daughter again and asked him to send her back

to the matrimonial house.

20. In her cross-examination, PW-5, mother of the deceased

has stated that demand for dowry was first made by the

appellants after one month of the marriage. She stated that she

did not notice any injury on her daughter when she came to her

house for a week, but after going back to her matrimonial

house, she again complained about dowry demand and

beatings by the accused.

21. PW-6/Rinku, brother of the deceased, also stated in his

cross-examination that no dowry demand was made at the time

of marriage. He stated that he had gone to the matrimonial

home of his sister after about one month of marriage. He

denied that she was of quarrelsome nature. He denied that the

appellant No.1 was having motorcycle prior to the marriage

with his sister.

22. On a conjoint reading of the aforesaid testmonies of

parents and brother of the deceased, this Court does not find

any discrepancy about the demand of motorcycle and

harassment meted out to the deceased Meenakshi as their

testimonies were unequivocal, consistent and cogent. PW-4 to

PW-6 have consistently maintained that there was no demand

of dowry at the time of marriage, but after about one month,

accused made demand of motor cycle and beat the deceased to

compel her to meet the said demand, therefore, the case was

covered under the third occasion as provided under Section 2

of the Dowry Prohibition Act which provides for demand of

dowry after the marriage.

23. As for the determinaton of whether the cruelty and

harassment was meted out to the deceased soon before the

death, this Court observes that the marriage was solemnized on

08.03.2011 and deceased expired on 15.06.2011. As per the

testimony of PW-4 to PW-6, there was no demand of dowry

for a peroid of one month after the marriage and therafter

dowry demand and harassment was meted out to the deceased

during the last two months prior to her death. As for the head

injury sustained by the deceased, DW-1 deposed she had

collided with the wall of staircase while being brought down

whereas the DW-3/appellant No.1 deposed that the head of the

deceased collided with the wall while he was in the process of

putting blanket on her due to which she received cut on her

forehead. Thus, there are contradictory explanations for the

injury. Thus, presence of injury on the forehead of the

deceased is a strong circumstance from which it can be

inferred that she was beaten by the accused. There is existence

of a proximate and live-link between the effects of cruelty

based on dowry demand and the concerned death and once that

is proved by virtue of legal fiction created by Section 113-B of

Evidence Act, it can safely be presumed that it was a dowry

death.

24. Section 304-B of IPC provides for punishment in a

dowry death case. There are three essential ingredients to make

out a case of dowry death which are: i) Death of a woman is

caused by any burns or bodily injury other than under normal

circumstances; ii) such death has been caused within seven

years of her marriage; and iii) Deceased was subjected to

cruelty or harassment by her husband or any of his relative for

or in connection with demand of dowry soon before her death.

25. It is an admitted case that the marriage of deceased with

the appellant No.1 was solemnized on 08.03.2011 and she

expired on 15.06.2011 i.e. within seven years of her marriage.

26. As per post mortem report Exbt. PW-10/A, deceased

died due to ante mortem burn injuries, which duly proves one

of the ingredients of Section 304-B IPC that the death of

deceased occurred due to burn and not under normal

circumstances.

27. As per the testimony of parents and brother of the

deceased, the deceased was subjected to cruelty and

harassment by her husband i.e. appellant No.1 and father-in-

law i.e. appellant No.2 on account of demand of dowry. They

categorically stated in their testimonies that deceased was

harassed and meted out with cruelty by the appellants on

account of demand of dowry soon before death. Thus, the

prosecution has successfully established the third ingredient of

dowry death.

28. The defence of the appellants is that it was an accidental

death as deceased caught fire while cooking food. Two plastic

cans were recovered from the spot. The FSL result Exbt. PW-

13/PX confirms the presence of kerosene residue in the plastic

cans. As per MLC Exbt. PW8/A, there was an apparent smell

of kerosene oil. PW-8/Dr.Razdan who had examined

Meenakshi at LBS Hospital also deposed that Meenakshi was

brought in a burnt condition with apparent smell of kerosene.

Even the PW-10/Dr.Meghali Kelkar, who conducted post

mortem on the dead body of the deceased, confirmed the

presence of kerosene oil. DW-1/Rajnish Kumar in his cross

examination stated that cooking gas is used in the kitchen of

the appellants/accused. DW-3 in his cross examination stated

that Meenakshi was working on the cooking gas at the time of

the incident. If Meenakshi had received burn injuries

accidently while wokring on the cooking gas, the smell of

kerosene would not have been there on her body as found by

the doctors. Also, DW-3 himself stated that he and Meenakshi

were sleeping and at about 11.30 P.M., Meenakshi got up and

went to kitchen and got burnt. 11.30 P.M. is not the usual time

when people get up and go to kitchen to cook food. Thus, the

plea taken by the accused with regard to deceased going to

kitchen to cook food and getting accidentally burnt while

cooking food on the gas is not substantiated by any material.

29. DW-1 Rajnish Kumar deposed that Meenakshi told the

police in the hospital that she was not burnt by anyone but

herself caught fire. DW-1 deposed that at that time

Dr.Mukherjee was also present, but they have chosen not to

examine the said Dr.Mukherjee in their defence. Per contra, as

per the endorsement of the doctor on MLC, the victim was not

oriented within time, place and person and so she was unfit for

statement. IO also denied that Meenakshi had made such a

statement. Even the SDM deposed that he tried to record the

statement of deceased twice but since the deceased was

declared unfit to make the statement by the doctor, her

statement could not be recorded. DW-1 stated that the accused

were arrested 6-7 days of the incident, but he did not approach

the police or any other authority and also did not file any

complaint in court against false implication of the accused. He

came to depose in the court after about two years of occurrence

and therefore the possibility that he deposed only at the

instance of accused being a close relative, cannot be ruled out.

Thus, the appellants were found to have failed in proving that

the death was accidental or that the deceased had made any

such statement prior to her death to the IO saying that she

herself had caught fire.

30. The appellant No.1 placed on record the photocopy of

the RC of motorcycle No. DL 7S-AA-6081 on which a receipt

has been executed by one Ved Prakash to the effect that he has

sold the motorcycle to the appellant No.1/Yogender on

13.01.2011 for Rs.13,500/-. However, original RC of the same

was not produced. The photocopy of the RC placed on record

is in the name of R.N.Yadav but as per the receipt, the

motorcycle was sold by one Sh.Ved Prakash who is not the

registered owner of the vehicle. Thus, it is not known in what

capacity he had sold the motorcycle to the appellant No.1.

Also, even if it is presumed that he had a motorcycle it cannot

be presumed that he would not raise the demand of a

motorcycle from the deceased merely because he was already

having a motorcycle.

31. Thus, in view of the aforesaid, the prosecution was held

to have made out a case that the deceased died within seven

years of her marriage due to burn injuries and she was

subjected to cruelty and harassment for demand of dowry from

the deceased and said demand was made soon before her

death.

32. In view of the detailed discussed made above, this Court

does not find any ground to interfere with the impugned

judgment of conviction dated 19.06.2013 and Order on

Sentence dated 03.07.2013.

33. The appeal is accordingly dismissed.

(P.S.TEJI) JUDGE AUGUST 23, 2016 dm/dd