Rajesh & Ors. vs State
2016 Latest Caselaw 7404 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+   CRL.A. No.763/2000
                                  Date of Decision : December 15th, 2016

    RAJESH & ORS.                                   ..... PETITIONERS
                         Through       Mr.M.L. Yadav, Adv.

                         versus

    STATE                                            ..... RESPONDENT

                         Through       Mr.Sudershan Joon, APP for the
                                       State.

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

    P.S.TEJI, J

1. Aggrieved by the judgment of conviction dated 21.11.2000

convicting the appellants, namely, Rajesh, Ganesh and Shiv Lata

finding them guilty under Sections 498-A/304B IPC and order on

sentence dated 22.11.2000 vide which the appellants were

sentenced to undergo seven years rigorous imprisonment for the

offence under Section 304B IPC and also to undergo three years

rigorous imprisonment with fine of Rs.25,000/- each for the

offence under Section 498A IPC, in default of payment of fine they

are ordered to further undergo simple imprisonment for six months,

the present appeal has been preferred..

2. The factual matrix emerges from the record is that on

20.03.1997 at about 10.55 a.m., an information regarding the

burning of a woman from a gas cylinder burst was received in the

police station and the same was assigned to ASI Suresh Ram who

went to the spot. At the spot, it was revealed that the injured was

taken to hospital by PCR Van. On an inspection of the spot, the

room was found to be washed. A small gas cylinder with burner

was seized from the spot. In the hospital, MLC of the injured was

collected on which the doctor declared the injured unfit for

statement. On the same day at about 12.05 a.m., the injured was

declared dead. SDM of the area was informed who conducted

inquest proceedings and recorded the statements of the relatives of

the deceased.

3. In his statement, the complainant, namely, Roshan Singh,

father of the deceased stated that his daughter Sarita was married to

Rajesh Chowhan on 12.12.1996 and in the marriage he had given

dowry as per his capacity. After few days of marriage, appellant

Rajesh came to his house and demanded a scooter. The

complainant showed his inability to meet the said demand. On

this, appellant Ganesh (brother-in-law) got annoyed and stated that

he would not visit there again. Thereafter, Sarita was refused to be

sent to her parental house. When Sarita and her husband visited

the house of the complainant, Sarita told the complainant that her

mother-in-law Shiv Lata had demanded a sum of Rs.40,000/-. On

20.03.1997, the complainant was informed that his daughter had

been burnt and was admitted in a hospital.

4. On the basis of statement of the complainant Roshan Singh,

FIR of the instant case was registered. Post mortem on the dead

body of deceased was conducted in which the doctor observed that

total burn injuries were 98% of the total body surface and cause of

death was due to burn shock consequent upon burn injuries. All

the accused persons/appellant were arrested and after completion

of investigation, charge sheet was filed in the Court.

5. Charge under Sections 498A/304B IPC was framed against

all the appellants to which they pleaded not guilty. The

prosecution had examined as many as eleven witnesses namely

PW1 Smt.Krishna, PW2 Smt. Shyamwati, PW3 Roshan Singh,

PW4 Laxmi, PW5 SI Vipnesh, PW6 Sh.N.P.S. Saran, PW7 Lady

Ct.Sunita, PW8 ASI Suresh, PW9 Dr.Robinson, PW10 SI Surender

Malik and PW11 Dr.S.B. Singh. The statements of the accused

persons were recorded under Section 313 of the Cr.P.C.

6. The appellants were held guilty by the learned Additional

Sessions Judge vide judgment of conviction dated 21.11.2000 and

passed the order on sentence on 22.11.2000.

GROUNDS OF CHALLENGE

(a) The dying declaration recorded by the doctor in the MLC

Ex.PW9/A of the deceased stated the death of the deceased to be an

accidental death and not a dowry death and that subsequently, it

was given the colour of dowry death by the parents of the

deceased.

(b) The preliminary inquiry made by ASI Suresh Ram (PW8),

revealed that the deceased received accidental burn but the trial

court has not relied upon the same.

(c) On the same set of evidence, co-accused Mukesh has been

acquitted and it is a settled law that witnesses disbelieved qua one

accused, cannot be believed against the other accused persons. The

trial court has given the benefit of doubt to the prosecution instead

of giving it to the accused.

(d) Delay in lodging the FIR and peculiar facts after the death of

deceased resulted in embellishment which is clear from the dying

declaration recorded by the doctor.

(e) There is nothing on record to assume that dowry was ever

demanded or it was agreed to be given. The allegations if any are

vague and general as no time, date and manner of maltreatment has

been mentioned in the FIR.

7. Per contra, arguments advanced by learned Additional

Public Prosecutor for the State is that the appellants have been

rightly held guilty under Sections 498A/304B IPC by the trial

court. The parents as well as other relatives of the deceased have

duly supported the case of prosecution that the deceased was

subject to cruelty and harassment on account of demand of dowry

by the appellants. There is sufficient evidence against the

appellants to hold them guilty for the offences of harassment on

account of demand of dowry and of dowry death.

8. Arguments advanced by the counsel for the appellants as

well as learned APP for the State were heard.

(I) In her testimony, PW1 Smt.Krishna, the sister-in-law of the

deceased stated that on 21.03.1997, she was present in her house at

about 10 a.m. Deceased Sarita was boiling water for taking bath.

(II) PW2 Smt. Shyamwati, mother of the deceased, had deposed

that Sarita was married to Rajesh Singh Chowhan on 12.12.1996

and there was no demand of dowry at the time of marriage. After

four days of marriage, in-laws of her deceased daughter told that a

scooter was not given in the marriage and demanded a scooter.

The deceased was harassed for not bringing scooter in the

marriage. On 20.12.1996, accused Rajesh and Ganesh came to her

house and told that they were insulted as scooter was not given and

demanded a scooter. On 31.12.1996, deceased told that her

mother-in-law was harassing her and asked her to bring a scooter

and Rs.40,000/- in cash. In January 1997, deceased informed that

she was harassed for bringing insufficient dowry. On 23.02.1997,

all the accused asked them to arrange a scooter and Rs.40,000/- in

cash. The deceased was harassed thereafter also on account of

demand of dowry. Statement of PW2 has been corroborated PW3

Roshan Singh, father of the deceased who had made almost similar

statement as that of PW2.

(III) Further PW4 Laxmi, cousin of the deceased had

corroborated the statements of PW2 and PW3. She stated that after

few days of marriage of Sarita, her father told that accused Rajesh

was annoyed and was demanding a scooter in dowry. Sarita told

that her mother-in-law was demanding Rs.40,000/- and her

husband Rajesh was harassing and threatening to kill with a knife.

(IV) PW5 SI Vipnesh had stated that accused Dinesh and Mukesh

were formally arrested by him and he prepared the charge sheet

after completion of investigation.

(V) Further corroboration is by PW6 Sh. H.P.S. Saran, the then

SDM, Civil Lines who had stated that on 20.03.1997, on receipt of

an information, he went to JPN Hospital and found that Sarita was

declared unfit for statement. Sarita died on the same night. On

21.03.1997, he conducted inquest proceedings and recorded

statement of Roshan Singh, father of the deceased and thereafter

directed the police to register the FIR.

(VI) Further corroboration is by PW9 Dr.Robinson who proved

the MLC of deceased as Ex.PW9/A and had identified the writing

of Dr.Sangita who had prepared the MLC. PW11 Dr.S.B. Singh

had conducted post-mortem on the dead body of the deceased and

proved his report as Ex.PW11/A.

(VII) Further PW7 Lady Ct. Sunit had stated that on 21.03.1997 as

a duty officer, she recorded the FIR of the instant case. PW8 ASI

Suresh Ram and PW10 SI Surender Malik had conducted

investigation of the case and had deposed about the proceedings

conducted by them.

9. PW2 and PW3 are the parents of the deceased. They have

specifically stated their deceased daughter was harassed and meted

with cruelty by the appellants on account of demand of dowry. In

their testimony, they have given the dates which duly proves that

the deceased was harassed by the appellants for or on account of

demand of dowry. They have stated specifically that after four

days of marriage, in-laws of her deceased daughter told that a

scooter was not given in the marriage and her in-laws demanded a

scooter. On 20.12.1996, accused Rajesh and Ganesh came to their

house and demanded a scooter. On 31.12.1996, deceased told that

her mother-in-law was harassing her and asked her to bring a

scooter and Rs.40,000/- in cash. In January 1997, deceased

informed that she was harassed for bringing insufficient dowry.

On 23.02.1997, all the accused persons again demanded a scooter

and Rs.40,000/- in cash.

10. PW4 Laxmi, cousin of the deceased has also corroborated

that deceased told that accused Rajesh was annoyed and was

demanding a scooter in dowry. PW4 also deposed that deceased

told that her mother-in-law was demanding Rs.40,000/- and her

husband Rajesh was harassing and threatening to kill with a knife.

11. From the testimony of parents (PW2 & PW3) and cousin

(PW4) of the deceased, it was duly established beyond reasonable

doubt that the appellants had harassed the meted the deceased with

cruelty on account of demand of dowry.

12. Thus, the conviction of appellants under Section 498A IPC

needs to be upheld.

13. The appellants, apart from treating the deceased with cruelty

on account of demand of dowry, have also been convicted for

commission of dowry death.

14. In the case of Devi Lal vs. State of Rajasthan AIR 2008 SC

332, Hon'ble Supreme Court has observed that the ingredients of

provisions of section 304 B IPC are (1) that the death of the

woman was caused by any burns or bodily injury or in some

circumstances which were not normal; (2) such death occurs

within 7 years from the date of her marriage ; (3) that the victim

was subjected to cruelty or harassment by her husband or any

relative of her husband; (4) such cruelty or harassment should be

for or in connection with the demand of dowry ; and (5) it is

established that such cruelty and harassment was made soon

before her death. It was further observed that before an accused is

found guilty for commission of an offence, the Court must arrive at

a finding that the ingredients thereof have been established. It was

held that statement of a witness for the said purpose must be read

in its entirety. It is not necessary for a witness to make a statement

in consonance with the wording of the section of a statute. What is

needed is to find out whether the evidences brought on record

satisfy the ingredients thereof.

15. Necessary ingredients of dowry death as provided under

Section 304B of IPC are :

(i)Deceased was the subject matter of cruelty on account of

dowry and culminates into guilt of accused under Section

498A IPC;

(ii)The death should have taken place due to bodily injuries

other than normal circumstances; and

(iii)Such death was the subject matter of cruelty soon before

death.

16. To constitute an offence under Section 304B IPC of dowry

death, the presumption under Section 113B of the Evidence Act

cannot be raised against an accused until independently the offence

under Section 498A IPC is proved by leading evidence to the

specific allegation with regard to time and date of such demand and

cruelty and furthermore establishing the proximity live link

between the effect of cruelty based on dowry demand and the death

of the victim.

17. In the present case, there is sufficient evidence to establish

that the deceased was subjected to cruelty on account of dowry and

the appellants are guilty for the offence punishable under Section

498A IPC.

18. It has vehemently been argued by the learned counsel for the

appellants that the ingredients of dowry death have not been

established in the instant case as the deceased died due to

accidental burns. In this regard, attention is drawn to the MLC

Ex.PW9/A of the deceased in which she made her last statement to

the doctor that she sustained burns while she was cooking food.

19. It is apparent from the record that prosecution witness HC

Bhopal Singh was not examined by the prosecution at its witness.

Record reveals that the statement of HC Bhopal Singh was

recorded under Section 161 Cr.P.C. on 24.03.1997. In his

statement, HC Bhopal Singh had stated that on 20.03.1997, he was

posted as Incharge of PCR Van and on receipt of call, he reached

the spot and removed Sarita to JPN Hospital. He specifically

stated that on the way to hospital, Sarita informed that she got

burns all of a sudden while she was cooking food on gas cylinder.

20. Statement of incharge of PCR Van HC Bhopal Singh

recorded under Section 161 Cr.P.C. makes it abundantly clear that

the deceased herself informed to him that she sustained burns while

she was cooking food on the gas cylinder.

21. MLC Ex.PW9/A of the deceased was prepared by

Dr.Sangeeta Sharma. MLC Ex.PW9/A shows that the doctor had

specifically recorded that as per the alleged history as said by the

patient herself that "she sustained burns due to sudden blast of

gas cylinder while she was cooking food". The alleged history of

the patient was recorded by the doctor as given by the patient

herself. It has also been recorded by the doctor in the MLC that

"smell of kerosene absent".

22. It was argued by the learned APP for the State that there is

cutting and overwriting on the MLC Ex.PW9/A to the effect that

initially the doctor wrote that the smell of kerosene was present but

subsequently the same was changed to "smell of kerosene absent"

which creates doubt about the defence of the appellants that it was

an accidental death.

23. There is no force in the above contention raised by the

learned Prosecutor for the reasons that the history of sustaining

burn due to sudden blast of gas cylinder was given by the deceased

herself to the doctor. So far interpolation/cutting/over-writing on

MLC Ex.PW9/A of the deceased is concerned, doctor who has

written "Smell of Kerosene absent" signed near the cutting/over

writing to authenticate the said over writing. There is no reason to

believe that the said over writing was done under any influence or

pressure as it is not the case of the either party.

24. It is further important to note that statement under Section

161 Cr.P.C. of Dr.Sangeeta Sharma was recorded by the

Investigating Officer on 24.03.1997 in which she specifically

stated that she examined the patient Sarita on 20.03.1997 and

prepared her MLC. She specifically stated that the patient herself

stated that she sustained burns due to sudden blast of gas cylinder

while she was cooking food. The doctor also stated in her

statement that smell of kerosene was absent. There is no cutting or

over writing in the said statement, which makes the history given

by the deceased as true that she sustained burns due to blast of gas

cylinder.

25. The MLC Ex.PW9/A prepared by Dr. Sangeeta Sharma and

her statement recorded under Section 161 Cr.P.C. makes it clear

that the death of the deceased was an accidental death and it cannot

be termed as dowry death.

26. Smt. Krishna (PW1) had also deposed that on 21.03.1997

deceased Sarita, her sister-in-law was boiling water for taking bath.

Pallu of the deceased caught fire accidentally. People from the

locality informed the police who came to their house and took

Sarita to hospital. She had proved her statement given to the police

as Ex.PW1/A.

27. A joint reading of the statements of Dr.Sangeeta Sharma and

of HC Bhopal Singh, incharge of the PCR Van recorded under

Section 161 Cr.P.C. duly proves that the deceased herself stated to

them that she sustained burns at the time of cooking food on the

gas cylinder. A reading of statements of these witnesses coupled

with the testimony of prosecution witness Smt.Krishna (PW1)

leaves no doubt that the deceased died in an accident of suddenly

catching fire from the gas cylinder. The appellants had no role to

play in such an accident. The evidence adduced does not establish

the live link between the effect of cruelty based on dowry demand

and the death of the victim and in the present case said evidence

does not fulfil the ingredients of Section 304B IPC.

As a result, the appellants are entitled to be acquitted for the

offence under Section 304B IPC and the judgment of conviction

and order on sentence is set aside.

28. However, the conviction and sentence of the appellants

under Section 304B IPC is set aside.

29. Keeping in view the discussion made above, the conviction

and sentence awarded to the appellants under Section 498A IPC is

upheld.

30. In the case in hand, the appellants have been convicted and

sentenced to undergo rigorous imprisonment for three years with a

fine of Rs.25,000/- each for the offence punishable under Section

498A IPC. In default of payment of fine, they have been ordered

to further undergo simple imprisonment for six months.

31. As per nominal roll of the appellant Rajesh, he already

remained incarcerated for 4 years 2 months and 18 days as on

16.11.2004, whereas as per nominal roll of the appellant Shiv Lata,

she remained incarcerated for 4 years 7 months and 24 days as on

24.05.2005. As per nominal roll of the appellant Ganesh, he

remained incarcerated for 3 years, 2 months and 13 days as on

05.02.2004.

32. Since the appellants Rajesh and Shiv Lata already remained

incarcerated for the period of their conviction under Section 498A

IPC, they are directed to be released forthwith, if not required in

any other case. So far appellant Ganesh is concerned, he is

directed to deposit the fine within 15 days, failing which to

surrender before the trial court concerned to serve the sentence in

lieu of payment of fine.

33. The appeal is disposed of accordingly.

(P.S.TEJI) JUDGE DECEMBER 15, 2016 dd