Bishamber & Ors. vs State Of Delhi
2016 Latest Caselaw 7426 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment delivered on : December 16, 2016

+       CRL.A. No.101/2000
        BISHAMBER & ORS.                                    ..... Appellants
                        Through:            Mr.Rajeev Sharma, Ms.Radhalakshmi
                                            R., Advocates

                                   versus

        STATE OF DELHI                                         ..... Respondent
                     Through:               Mr.Panna Lal Sharma, Additional
                                            Public Prosecutor for the State.

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

                                      JUDGMENT

P.S.TEJI, J.

1. Aggrieved by the judgment of conviction dated 15.02.2000 passed by the learned Additional Sessions Judge, Delhi convicting the appellants for the offence punishable under Section 304-B of Indian Penal Code (hereinafter referred to as I.P.C.), and order on sentence dated 15.02.2000, whereby the appellants have been sentenced to undergo rigorous imprisonment for a period of seven years.

2. The factual matrix emerges from the record is that the marriage of Mithlesh (since deceased) was solemnized with Ravinder Kumar on 28.11.1985 as per Hindu rites and ceremonies. Furniture, one sofa set, dining table, washing machine and 10 tolas of gold and other clothes and goods were given in marriage by the parents of the deceased.

After marriage, when she visited 4-5 times her parental home and told her father that Ravinder Kumar, Bishamber Singh, Kailash Wati had been harassing her asking for more money, colour TV and oftenly saying that she is not at all beautiful. On 04.10.1987, i.e. about two years of marriage, at about 5.15 PM an information was received from PCR that one Bishamber had given information on telephone that Mithlesh had committed suicide in her maternal home. Information recorded, copy of the same entrusted to Sub-Inspector Dalip Singh for investigation, who reached the place of occurrence and found one room closed from inside. Information to SDM was sent, who reached the spot at about 8.20 PM. In his presence, the door of the room was broke open, body of Mithlesh was found hanging with a ceiling fan tied with a chunni. SDM (PW-7) recorded the statement of Ram Kishan (PW-1), father of the deceased. A suicide note was also recovered upon a search of the room where the deceased committed suicide . Statement of Mukesh (PW-2) was also recorded. The suicide note, the stool, broken piece of door and one pencil were seized. Inquest proceedings were initiated, dead body was sent for post mortem. On the statement of Ram Kishan (PW-1) the SDM (PW-7) made an endorsement and ordered for registration of case under Section 498-A/304-B of IPC. During investigation, all the three accused persons were arrested and their personal search memos were prepared.

3. After completion of investigation challan was filed. Case was committed to court of sessions for trial, charge under Section 304-B of

IPC only was framed against the accused persons, to which all the accused persons pleaded not guilty and claimed trial.

4. In support of its case, prosecution examined 16 witnesses. They are, father of deceased - Ram Kishan (PW-1); brother of the deceased

- Mukesh (PW-2); Doctor who conducted the post mortem (PW-3); cousin of the deceased - Raj Kumar (PW-4); Inspector Devender Singh (PW-5), who prepared scaled site plan; Head Constable Nand Lal (PW-6); SDM - M.M. Kutti (PW-7) ; ASI Lal Chand (PW-8), who recorded the FIR; friend of deceased - Babita (PW-9); Yad Ram (PW-10) - neighbor of PW-1; Photographer (PW-11), who had taken the photographs of the scene of occurrence; Head Constable Baljit Singh (PW-12); Inspector Shyam Lal (PW-13), Investigating Officer this case; Official posted in PCR (PW-14); Sub-Inspector Dalip Singh (PW-15); ACP H.K. Yadav (PW-16), who took over the investigation on 14.12.1987. The statements of the appellants were recorded under Section 313 of the Cr.P.C.

5. After considering the facts, evidence led and the material on record, the learned Additional Sessions Judge held the appellants guilty for an offence punishable under Section 304-B vide judgment and order on sentence dated 15.02.2000.

GROUNDS OF CHALLENGE

(i) That the investigation in the case has been unfair, tainted and dishonest. The prosecution has recovered the suicide note Ex.PW-1/C from the search of the room but the said suicide

note was not referred to in the complaining statement by PW-1 Ram Kishan (father of the deceased). The letter Ex.PW-1/A-1 to A-3 which were written by the deceased to her friend Babita have been shown to have been produced by PW-1 to the Investigating Officer but the prosecution has not investigated the fact as to how PW-1 got the letter.

(ii) It was wrongly held that the deceased was harassed for bringing less dowry but such fact was neither written in the suicide note nor the same is mentioned in the letter written to her friend. The said letter only talks about the criticism and taunts and taunts cannot be equated with demand of dowry. Moreover, PW-1 has specifically admitted that the appellant had never made any demand to him.

(iii) The theory of 'indirect demand' from the suicide note and letter is wrong and had there been any demands, the deceased would have mentioned the same in those documents.

(iv) PW-2 Mukesh had not disclosed about the demand of dowry before the SDM and the trial court has wrongly relied upon his testimony along with corroboration by PW4 and PW10. PW-4 Raj Kumar improved upon his police statement and deliberately added the portion about the said demands. PW-10 Yad Ram had even denied the fact that he had ever made any statement before the police, ever.

(v) It is further urged that the ingredients of Section 304-B have not

been fulfilled, as taunting for bringing less dowry cannot be termed as demand of dowry.

6. In support of his submissions, learned counsel for the appellant relies upon the judgments of the Supreme Court in Maya Devi & anr. Vs. State of Haryana, AIR 2016 SC 125; Criminal Appeal No.1085 of 2003 titled as Gurdeep Singh vs. State of Punjab & Ors., decided on 25.08.2011; Baijnath & Others vs. State of Madhya Pradesh, 2016 SCC Online SC 1287.'

7. The appellant has filed the instant appeal challenging the aforesaid judgment on conviction as well as order on sentence. During pendency of the present appeal, the sentence imposed upon the appellants was suspended vide order dated 08.08.2000. Arguments advanced by the counsel for the appellants is that there was no demand of dowry at any point of time. The deceased was never harassed or tortured on account of demand of dowry and this fact is apparent from the suicide note and letter written by the deceased. There were only taunts which cannot be termed as harassment on account of dowry.

8. Per contra, learned Additional Public Prosecutor for the State has vehemently opposed the aforesaid contentions raised on behalf of the appellants and submitted that the judgment and order on sentence as passed by learned Additional Sessions Judge do not suffer from any irregularity or illegalities and is passed with a reasoned order, therefore, the same is not liable to be interfered with. The deceased Mithlesh had died otherwise than under normal circumstances within

seven years of her marriage and the deceased was being continuously harassed on account of bringing less dowry. The appellants have already been awarded the minimum prescribed sentence for the offence under Section 304-B IPC.

9. I have heard the submissions made on behalf of both the sides and also gone through the evidence as well as material placed on record.

(i) Ram Kishan, father of deceased (PW-1) deposed about marriage of his daughter with the appellant - Ravinder on 28.11.1995 and at the time of marriage he gave Rs.25/30,000/- in cash and colour TV besides other articles, as mainly demanded. He also gave scooter, refrigerator, washing machine, sofa set, dining table with chairs, 10 tolas of gold, clothes and other articles in the marriage. The deceased Mithlesh was pursuing her basic teachers training at Jamia Millia, therefore, she used to live at his house and she had told him that appellants were greatly harassing her and saying that whatsoever articles were given in the marriage were not of good quality and they were also scorning her as she is not beautiful. His daughter also told him that accused persons were maltreating her because cash and colour TV were not given in the marriage and they were also pressurizing her to get employed somewhere. On 03.10.1987, Raj Kumar (PW-4) cousin of deceased went to seek his daughter alongwith his wife to the house of accused persons. The deceased handed over a letter to him to deliver to her friend

Babita (PW-9). The said letter was delivered by PW-4 to his son Mukesh (PW-2), which was shown to him on 04.10.1987. He further deposed that in his presence, a suicide note (Ex. PW- 1/C), pencil and wooden stool were seized vide memo Ex. PW- 1/D. He had also identified the letter which was given by deceased to PW-4 (Ex.PW-1/A1 to A3). PW-1 also identified the handwriting and signatures of deceased both on the letter and suicide note. In his cross examination PW-1 admitted that Babita (friend of deceased) used to visit Mithlesh in her parents house and she also visited her matrimonial house 3-4 times after marriage. He also stated that before marriage of deceased, appellant - Bishamber had demanded dowry from him. He further deposed that the appellant - Bishamber had talked to him as to how and in what manner the marriage was to be performed and gifts are to be exchanged. He also stated that immediately after the marriage of Mithlesh, appellant Bishamber had complained to him about the quality of articles.

(ii) Brother of deceased - Mukesh (PW-2) corroborated the testimony of his father (PW1). PW2 deposed that whenever he visited the matrimonial house of the appellants, he found Mithlesh weeping and on his enquiry, his sister used to tell him that all the appellants were maltreating and beating her for not having brought adequate dowry. The appellants used to tell him that articles given in the marriage were of inferior quality. He had deposed that the appellants complained that colour TV set

was not given in the marriage and also used to demand Rs.20,000 to 25,000/-. PW-2 also deposed about the suicide Note (Ex. PW-1/C) by his sister which was recovered from under the pillow consisting of few pages and the same was seized. Alongwith the suicide note, pencil, stool and broken pieces of door were also seized. He identified the handwriting of deceased on the suicide note. He further deposed that a day prior to occurrence Mithlesh had written a letter to her friend Babita which was handed over to him by his cousin Raj Kumar (PW-4) for transmitting it to Babita. He read that letter at night and the next morning showed it to his father which was handed over by his father to the Investigating Officer.

(iii) Testimony of PW1 and PW2 has been corroborated by Babita (PW9), friend of the deceased. PW9 deposed that after the death of Mithlesh, police had visited her and showed her a letter which she identified to be in the hand writing of Mithlesh.

(iv) The Suicide note (Ex. PW-1/C) recovered from the spot reads as under:-

"Dear Bhabhi, I wanted to tell you everything yesterday, but could not tell because of brother who lived out of town and had become very week. (He) would have become more disturbed because of my sorrows. I would have died in the night itself if brother was not to go. (He) should not be informed. Daughter of these people (in-laws) was harassed by her mother- in-law and then these people harassed me. I am lonely here. My husband is also not mine and he acts

according to his parents instructions. Whatsoever (his) mother would tell, son would do the same thing. These people taunt me daily about the less dowry and my not being beautiful. My status is less than that of a maid servant. A maid servant works after getting money, but I get abuses despite my working as maid servant throughout the day. Whenever someone comes from Madipur (her native village) then faces of these people got changed and after that person leave I am harassed. These people think that I should die by suffocation so that they would again perform marriage of their son. These people always say that Madipur Walas had cheated them. These people should be asked how they have been cheated. Everything is being watched by the God. Their own daughter was being treated in the like manner. As I am dying today, may God also kill their daughter one day. Then these people would realize that others daughter is also made up of skin and flesh and not of iron or stone. If letter to Babita has not been handed over to her then that letter should also be read. Every member in this house was a cynical and did not care for me. (If I) die then you would see that these people would distribute parsad on Tuesday."

(v) From the aforesaid suicide note (Ex. PW-1/C) of the deceased, it is proved that the appellants used to taunt the deceased on daily basis for bringing less dowry and by saying that she is not beautiful. The suicide note further mentions about a letter written by the deceased to her friend Babita (Ex. PW1/A to A3) handed over to the PW-4, one day before Mithlesh committed suicide. Translation of the letter (Ex. PW-1/A to A-3) reads as under:-

"Dear babita, Hello. I came to know from Mukesh that you

had written me a letter, but I have not received that letter. I want to tell you one thing today, but you should take oath that you would not tell this thing either to Mukesh or my family members. I am very unhappy here and the reason of its is that I am not beautiful. I am taunted day and night. You know how much dowry was given by my father. Scooter, Fridge etc., everything was given to these people still say that nothing was given. You had seen that my sarees are also very good. When these people had settled the marriage then they had not considered the girl, but they had considered that girl was daughter of Tehsildar and they would get sufficient articles including cash. But when the hope of these people were not fulfilled then they all harass me. I do not tell to my parents because they had two more daughters and from where they would get more money. Mother (mother - in - law) instigate her sons 24 hours a day. He (Husband) does not even talk to me properly. I cannot write letter to anyone. I am not sent to Madipur. On the day when you had come to Madipur, next day Mukesh had come to fetch me, but these people said (I) would not be sent for 10-15 days and if (I) was to be taken then should be taken for six years. Mukesh was also insulted. On that day, Babita I would have committed suicide by hanging if I did not care for my mother because heart of my mother was very weak and she would not have tolerated the shock because she know that I have faced sorrows right from my childhood and even now I am not happy then she would die. For this reason I had not told them anything. I am suffocating inside and somehow living, but none is mine with whom I can share my sorrows. I have not met my mother from three months and these people do not permit me to go there. (I) have to work for these people for entire day and still I am taunted. I do not know what mother (mother-in- law) had taught son (husband) and he does not listen to me. He does whatsoever is told to him by his mother. My father- in-law is a master, but he also always complain that fridge is of inferior quality and scooter is useless. Babita that day is not far away when you would come to know that your

friend had committed suicide. These people want that I should get employment for Rs.1,000/- - Rs.1,200/-. One should imagine who would give me such salary in a private school. These people are very greedy. Babita I have told you all this because I consider you as of my own, but you should not disclose it to Jijaji and particularly to Mukesh because he always wept. O.K. you tell me how are you. How life is going on. Friend you are very lucky to get such a husband. I will pray to God that you people remain always happy. Yours Mithlesh. (P.S.) I am sending this letter through Mukesh because here I cannot even write a letter."

(vi) Yad Ram (PW-10) neighbor of PW-1 further corroborated his testimony. PW10 deposed that in the marriage of Mithlesh with Ravinder, sufficient dowry including scooter, fridge, sofa, cooler, gold etc. was given. He further deposed that after marriage, on 3-4 occasions Mithlesh told him that the appellants used to harass her for not bringing sufficient dowry and he used to console her that she was an educated girl and she would be able to adjust herself in her matrimonial house.

(vii) PW-7, the then SDM had deposed that on 4.10.1987, on receipt of telephonic message, he went to Village Khampur, where Sub-Inspector Dalip Singh got the door of the room broke open and got the scene of occurrence photographed. Dead body which was hanging with the ceiling fan with the help of a chunni was also photographed. He had recorded the statement of Ram Kishan (PW-1), father of the deceased as Ex. PW-1/B and made his enforcement as Ex. PW-7/A. He further deposed that from the spot, one suicide note was recovered and

thereafter, he recorded the statement of Mukesh (PW-2). He also conducted inquest proceedings and sent the dead body for post mortem. Statement of the appellants - Bishamber, Mukesh and Parmeshwari were also recorded. He also recorded statement of accused Kailash Wati and Ravidner. In his cross- examination, he deposed that he had recorded the statements of witnesses as part of inquest proceedings. He signed the unnatural death form at about 8.45 PM. He had admitted that the suicide note was recovered from the spot.

(viii) Further PW-4 posted in PCR who after receipt of information about the occurrence from Bishamber passed the information to Police Station Patel Nagar. PW-11 had taken photographs of the scene of occurrence. PW-6 Constable Nand Lal had taken the dead body to mortuary for postmortem. PW-15 is Sub- Inspector Dalip Singh (Investigating Officer) and PW-7 is Shri M.M. Kutti, SDM. PW-3 is the doctor who had conducted post mortem, PW-8is ASI Lal Chand who recorded the FIR, PW-5 is Inspector Devender Singh, who prepared the scaled site plan. PW-13 is Inspector Shyam Lal who had taken over the investigation of this case on 09.11.1987. PW-12 is Head Constable Baljeet Singh, who had taken the exhibits of this case to CFSL on 20.11.1987. PW-16 had taken over investigation of this case and collected the list of dowry articles, CFSL report and recorded the statements of witnesses.

10. Section 304-B of IPC reads as under:-

304B. Dowry death.--(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.-For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

11. 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.

12. Section 113B of the Evidence Act, 1872 speaks about presumption as to dowry death which 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 304B of the Indian Penal Code (45 of 1860)."

13. 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.

14. 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.

15. Undisputedly, the death of the victim was unnatural and such death had occurred within seven years of her marriage. As regards, cruelty in connection with demand of dowry being subjected to the victim soon before death, this court cannot lose sight of the fact that in this case the victim has left a suicide note (Ex. PW-1/C) that "these people taunt me daily about the less dowry and my not being beautiful". No doubt, there is no mention of any such specific incident which took place wherein the victim had been subjected to cruelty, from which it can be inferred that the victim was subjected to cruelty in connection with demand of dowry which might have instigated the deceased to take the extreme step of ending her life, but narration of the fact in the suicide note written by the deceased herself infers that the appellants were taunting the deceased on a daily basis for bringing less dowry as well as ridiculer her for not being not beautiful.

16. There cannot be any fix tenure to establish "soon before death". This concept is to be determined from the facts and circumstances whether the cruelty or harassment on account of dowry has any proximity with the death of the deceased. In other words, there must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the occurrence of death.

17. The continuous proximity of taunting by the appellants could be the effect of the death of the deceased on account of bringing less dowry which could lead to the proximity of the death of the deceased can be termed as harassment or mental torture on account of dowry. It is evident from the testimony of witnesses that the deceased was taunted for bring less dowry since the date of her marriage and the same continued till the deceased took the extreme step of ending her life. The said fact is duly corroborated from the suicide note and the letter written to Babita (PW-4). In the present case, it has been proved that there is continuous process of harassment which continued till the death of the deceased which is undisputedly established from the suicide note Ex.PW1/C.

18. Undisputedly, the death of the victim was unnatural and such death had occurred within seven years of her marriage. As regards, cruelty in connection with demand of dowry being subjected to the victim soon before death, this court cannot lose sight of the fact that in this case the victim has left a suicide note (Ex. PW-1/C) that "these people taunt me daily about the less dowry and my not being beautiful".

19. The testimony of relatives/friend (PW1, PW2, PW9 and PW10) of the deceased, as discussed above, and the suicide note (Ex.PW1/C) written by the deceased herself clearly proves that the appellants were taunting the deceased on daily basis for bringing less dowry as well as the fact of deceased being not beautiful and the same continued till the time the deceased took an extreme step of ending her life.

20. The suicide note (Ex.PW1/C) specifically mentions about the letter written by the deceased to her friend Babita (Ex. PW-1/A1 to A3). While reading the same alongwith the suicide note, it is established that the victim was so tortured by her in-laws. The letter records that the deceased was unhappy in her matrimonial home as she was being taunted day and night. Despite dowry articles given by father of the deceased, the in-laws were saying that nothing was given. The letter further records that the husband was not talking to the deceased properly and she was not sent to her parental home at Madipur. When the deceased's brother Mukesh came to her matrimonial home for taking her for 10-15 days, the in-laws stated that they would not send Mithilesh for 10-15 days but she should be taken away for six years. Letter further mentions that the brother of deceased was also insulted and she has written that even on that day, the victim could have committed suicide by hanging. The letter further records that the deceased was suffocating within. The deceased also wrote that these people are very greedy. What more can be understood of the position that the suicide note records that every member in this house was cynical and did not care for me. (If I) Die then you would see that these people would distribute parsad on Tuesday".

21. A cumulative consideration of the evidence regarding bringing less dowry satisfies the ingredients of charge qua the appellants. Hence, the prosecution has successfully proved the ingredients of Section 304B of IPC beyond reasonable doubt which leads to draw the presumption as provided under Section 113B of the Indian Evidence

Act which remained unrebutted. The factum of unnatural death in the matrimonial home and that too within seven years of marriage and continuous taunting of bringing less dowry till the time the deceased took the extreme step to end her life are sufficient to bring home the guilt of the appellants within the four corners of Section 304-B of IPC against them.

22. In the light of the aforesaid discussions and facts and circumstances of this case, this court does not find any illegality or infirmity in the impugned judgment and order on sentence dated 15.02.2000. Accordingly, the same are upheld and the appeal filed by the appellants is dismissed.

23. The appellants are directed to surrender before the trial court concerned within a period of 15 days to serve the remainder of sentence of imprisonment.

24. A copy of this order be sent to the Trial Court for information and necessary steps.

25. With aforesaid directions, the present appeal is disposed of.

(P.S.TEJI) JUDGE DECEMBER 16, 2016 pkb/dd