Delhi High Court
Deepak Srivastav vs State Of Delhi on 30 August, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 19th May, 2017
Judgment delivered on 30 August, 2017
+ CRL.A. 36/2004
POONAM SRIVASTAV ..... Appellant
Through : Mr.K.T.S. Tulsi, Sr. Adv. with
Mr.Lalit Sankhla, Mr.Pawan Sankhla,
Mr.Padam Sankhla, Mr.Raj Kamal
and Ms.Pallavi Malhotra, Advs.
Versus
STATE OF DELHI ..... Respondent
Through: Ms.Aashaa Tiwari, APP
Mr.Pawan K. Bahl, Adv. for the
complainant.
+ CRL.A. 68/2004
JITENDER SRIVASTAV & ORS ..... Appellants
Through : Mr.K.T.S. Tulsi, Sr. Adv. with
Mr.Lalit Sankhla, Mr.Pawan Sankhla,
Mr.Padam Sankhla, Mr.Raj Kamal
and Ms.Pallavi Malhotra, Advs.
Versus
STATE OF DELHI ..... Respondent
Through : Ms.Aashaa Tiwari, APP
Mr.Pawan K. Bahl, Adv. for the
complainant.
Crl.A. 36/2004, 68/2004 & 85/2004 Page 1 of 46
+ CRL.A. 85/2004
DEEPAK SRIVASTAV ..... Appellant
Through : Mr.K.T.S. Tulsi, Sr. Adv. with
Mr.Lalit Sankhla, Mr.Pawan Sankhla,
Mr.Padam Sankhla, Mr.Raj Kamal
and Ms.Pallavi Malhotra, Advs.
Versus
STATE OF DELHI ..... Respondent
Through: Ms.Aashaa Tiwari, APP
Mr.Pawan K. Bahl, Adv. for the
complainant.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J.
1. Three appeals arise out of a common judgment dated 06.12.2003 and
order on sentence dated 10.12.2003 passed by the learned Additional
Sessions Judge, Delhi, in Sessions Case No.129/01 arising out of FIR
No.337/98, registered under Sections 498-A/304-B/406/34 of the
Indian Penal Code (hereinafter referred to as „IPC‟) at Police Station
Shalimar Bagh. Arguments have been addressed in all the appeals
together, the same are being deposed of by a common judgment.
2. Deepak Srivastav, appellant in Crl.A.No.85/2004 is the husband of the
deceased; Poonam Srivastav, appellant in Crl.A.No.36/2004 is the
sister-in-law (Jethani); Jitender Srivastav, brother-in-law (Jeth),
Rajinder Srivastav, father-in-law, and Veena Srivastav, mother-in-law,
are the appellants in Crl.A.No.68/2004. The appellants have been
convicted under various provisions of the Act, as detailed in the
tabulation herein below:
S.No. Name of the Sections under Period of conviction
appellants which
convicted
1. Deepak 304-B IPC RI for life under
Srivastava Section 304-B IPC.
498-A IPC
406 IPC
RI for 03 years with
a fine of Rs.2,000/-
and in default, RI for
03 months under
Section 498-A IPC.
RI for 03 years with
a fine of Rs.2,000/-
and in default, RI for
03 months under
Section 406 IPC.
2. Rajinder 304-B IPC RI for 10 years
Srivastava under Section 304-B
498-A IPC
IPC.
406 IPC
RI for 03 years with
a fine of Rs.2,000/-
and in default, RI for
03 months under
Section 498-A IPC.
RI for 03 years with
a fine of Rs.2,000/-
and in default, RI for
03 months under
Section 406 IPC.
3. Veena 304-B IPC RI for 10 years
Srivastava under Section 304-B
498-A IPC
IPC.
406 IPC
RI for 03 years with
a fine of Rs.2,000/-
and in default, RI for
03 months under
Section 498-A IPC.
RI for 03 years with
fine of Rs.2,000/-
and in default, RI for
03 months under
Section 406 IPC.
4. Jitender 304-B IPC RI for 10 years
Srivastava under Section 304-B
498-A IPC
IPC.
RI for 03 years with
a fine of Rs.2,000/-
and in default, RI for
03 months under
Section 498-A IPC.
5. Poonam 304-B IPC RI for 07 years
Srivastava, under Section 304-B
498-A IPC
IPC.
Sister-in-law
RI for 03 years with
fine of Rs.2,000/-
and in default, RI for
03 months under
Section 498-A IPC.
3. Before the rival submissions of learned counsels for the parties can be
considered, we deem it appropriate to outline the case of the
prosecution which reads as under:
"2. The brief facts of the case as made out from the record
are that deceased was married to accused Deepak
Srivastava on 07.12.1996 at 8, Mahila Colony, Delhi-
110031 as per hindu rites and customs. In the marriage,
she was given a large number of dowry articles including
three kilogram of silver jewellery, 40 tola gold jewellery,
a Maruti-car, fridge, colour T.V., V.C.R., household
furnitures and several other items. Sh.Roop Kishore
Srivastava, father of the deceased spent around
Rs.12,50,000/- (Rs. Twelve lacs fifty thousand only) in the
marriage.
3. For two months, the deceased remained quite well at her
matrimonial house. Thereafter accused Deepak
Srivastava, Rajinder Srivastava, Veena Srivastava,
Jitender Srivastava, Poonam Srivasatva and Sonia
Srivastava started harassing her for bringing a Maruti
800 car in marriage and taunted her that it was a
humilitation for them and she ought to have brought
„Maruti Esteem Car‟ in the marriage. They all started
finding fault with other articles brought by her in
marriage. They also taunted her that nothing has been
given to their relatives by the parents of the deceased.
4. Thereafter father of the deceased gave the accused
Rs.10,000/-, Rs.15,000/- and Rs.25,000/- on different
dates. On the wedding anniversary of the deceased, her
father sent Rs.11,000/-, but accused Rajinder, Jitender
and others asked that Rs.51,000/- ought to have been
sent. In the marriage of accused Sonia in February 1999,
the parents of the deceased sent Rs.15,000/- and one gold
ring, but the accused humiliated Sh. Dalip Srivastava
brother of deceased stating that they had only one
daughter and at least Rs.50,000/- ought to have been
sent. The accused would not allow the deceased to speak
to her family members nor would they allow her to make
a telephone call. The harassment of the deceased
continued thereafter. On 23rd of February 1998, accused
Rajinder, Deepak and Jitender along with the deceased
came to her parental house and demanded Rs. Two lacs
for getting a business started for accused Deepak
Srivastava. However, Sh. Roop Kishore Srivastava father
of the deceased expressed his inability to pay such a huge
amount, but asked for sometime to pay the same.
Thereafter all the accused persons along with Arti
returned to her matrimonial house. The demand of Rs.
Two lacs continued thereafter.
5. On 29th May 1998, accused Deepak came to her parental
house and left her down-stairs asking her to take Rs. Two
lacs from her parents. The deceased informed her family
members about this demand. In the evening accused
Deepak Srivastava came to her parental house and
demanded Rs. Two lacs, but the amount was not paid and
thereafter accused Deepak Srivastava left the parental
house of the deceased leaving her there. The father and
brothers of the deceased tried to reason with accused
Deepak Srivastava and expressed their inability and also
regretted their inability to pay the amount, but to no use.
In the evening, they took Arti to her matrimonial house
and again tried to assure the accused persons that the
amount would be paid, but sought some time. Accused
Deepak Srivastava, Rajinder Srivastava, Veena
Srivastava, Jitender Srivastava and Poonam Srivastava
were adamant and stated that by not paying the amount,
they had dug a well for the deceased. They left the
deceased at her matrimonial house. On 30.05.1998,
Sh.Dalip Srivastava brother of the deceased, made a
telephone call at her matrimonial house and he was
informed that the deceased was lying unconscious up-
stairs. Father of the deceased along with other family
members rushed to Shalimar Bagh, matrimonial house of
the deceased. Accused Poonam Srivastava and Veena
Srivastava were bringing the deceased outside the house.
Thereafter, she was removed to hospital by her father and
brother in their own car, where she expired on the same
day. Thereafter the instant case was registered on the
complaint of her father Sh. Roop Kishore Srivastava."
4. Further, as per the learned trial court, Dalip Srivastava, brother of the
deceased, had made a telephone call to his deceased sister on the
fateful day i.e. on 30.05.1998. The phone call was received by
Poonam, sister-in-law of the deceased, and Dalip was informed that
his sister was busy doing household work and that he should call back
in half an hour. When Dalip again made a phone call to his sister, he
was informed by Poonam, the sister-in-law of the deceased, that the
deceased was lying unconscious. Subsequently, Dalip reached the
matrimonial home of Arti. The deceased was brought out by her sister-
in-law and mother-in-law. Upon reaching, Dalip observed that froth
was coming out from the mouth of his sister.
5. In the car of Dalip, Arti was removed along with Poonam to Jain
Nursing Home where they were informed that Arti was no more but
she should still be taken to a hospital. Arti was then removed to LNJP
Hospital, where she was declared „brought dead‟ at 3.30 p.m.
6. As per the prosecution, Arti had died prior to 1.30 p.m. because on
30.05.1998 when Dalip made the second call to his sister at 1.30 pm,
he was informed that his sister was lying in an unconscious state. As
per the chemical report, Arti had consumed poison and a tin of baygon
spray was lying near her body. To bring home the guilt of the
appellants, the prosecution has examined 17 witnesses in all.
Statements under Section 313 were recorded wherein all the appellants
denied the allegations and stated that they were innocent and have
been falsely implicated.
7. Mr. K.T.S. Tulsi, learned senior counsel appearing on behalf of the
appellants submits that the appellants have been falsely implicated in
this case. There was no harassment to the deceased much less for the
demand of dowry. While relying on the cross-examination of two star
witnesses, being the father and the brother of the deceased, PW-1 and
PW-2, respectively, learned senior counsel for the appellants submits
that both these witnesses admitted that the appellants were well-to-do,
they were well-established, they owned shops, separate businesses
were being carried out by both the brothers and, thus, there was no
occasion for them to have demanded dowry or petty amounts to the
tune of Rs.11,000/-, Rs.15,000/- and Rs.50,000/-, as claimed by the
prosecution.
8. In support of his argument so raised, Mr. Tulsi has relied upon Sanjiv
Kumar v. State of Punjab, reported at (2009) 16 SCC 487, more
particularly para 19, which reads as under:
"19. In the first instance, it was submitted that the family of the
appellant is relatively more prosperous than the family of the
deceased. There is no allegation that any dowry was demanded
at the time of marriage. The defence evidence also proves that
the marriage ceremony was a simple ceremony where only the
chunni ceremony was performed with only eleven or seventeen
persons constituting the barat. It was further contended that the
family of the appellant has considerable landed property, about
30 bighas of land and they are agriculturists. That apart, the
father of the appellant was employed with the Electricity Board
at Nabha. The appellant had no reason to demand Rs.10,000 for
supporting a shop because he did not intend to start any such
shop nor was there any necessity to do so. So far as demand of
a fridge is concerned, only three weeks before the occurrence
they had purchased a new fridge and therefore, the allegation
regarding demand of articles of Rs.10,000 appears to be false.
Even before the marriage, the appellant had in his house a
black and white TV and therefore, there was really no need for
the appellant to demand a TV. In any event, in these
circumstances, it does not appear probable that for such petty
things the appellant would commit the murder of the deceased.
The learned counsel therefore argued that the prosecution
evidence regarding demand of dowry must be rejected outright.
There is no evidence to establish that such a complaint was ever
made to anyone before the occurrence, nor had the parents of
the deceased convened any panchayat making such a grievance,
particularly in the background of the fact that the family of the
appellant had twice convened panchayat and had even taken the
panchayat members to the village of the deceased to complain
about her conduct. It was, therefore, submitted that Section
304-B was not attracted to the facts of this case. It may be that
the deceased committed suicide after she had a serious quarrel
with her husband for her having stayed for the night at the
house of Balwant Rai with whom the husband suspected her
illicit relationship.
20. We cannot lose sight of the principle that while the
prosecution has to prove its case beyond reasonable doubt, the
defence of the accused has to be tested on the touchstone of
probability. The burden of proof lies on the prosecution in all
criminal trials, though the onus may shift to the accused in
given circumstances, and if so provided by law. Therefore, the
evidence has to be appreciated to find out whether the defence
set up by the appellant is probable and true."
9. Senior counsel further contends that in fact the deceased was suffering
from depression on three counts; firstly, despite treatment being
carried out at Gayatri Nursing Home, she was unable to conceive,
Secondly, she had an affair prior to her marriage with one, Tarun. A
locket with the initials of Arti and Tarun was found, Thirdly, Arti‟s
sister was keen that she should marry Sanjay, who was her husband‟s
younger brother, but parents of Arti were not interested. On account of
these three factors, Arti remained depressed and consumed poison for
which the appellants cannot be blamed but with a view to harass the
entire family the prosecution has roped each and every member
including the married sister-in-law (Nand), Sonia, who was
subsequently acquitted by this Court vide judgment dated 04.02.2016
rendered in Criminal Appeal No.1/2004 titled as Sonia v. State.
10. Mr. Tulsi further submits that the demands sought to be relied upon by
the prosecution are not only vague but also general in nature and they
lack material particulars. Mr.Tulsi further submits that all the family
members have been roped in. The demands are exaggerations and,
thus, cannot form the basis of conviction either under Section 498A of
the IPC and much less under Section 304B of the IPC. Learned senior
counsel contends that as per the testimony of the material witnesses,
the father of the deceased had paid a sum of Rs.11,000/- through his
son, Dalip, on 07.12.1997 on the eve of the wedding anniversary of
the couple and Rs.15,000/- was paid on 01.02.1998. Thus, there is no
live link between the demands of dowry, the taunting and Arti‟s death.
Resultantly, Section 304-B of the IPC would not be made out. Senior
counsel further contends that the demand, if any, for starting a
business would not be covered under the definition of dowry. This
demand, according to the prosecution, was raised on 23.02.1998 and
continued up to one day prior to the date of the incident i.e.
29.05.1998, when Arti left her parent‟s house in the morning and was
taken back to the matrimonial home but with a threat given by the
husband, Deepak, that she was digging a pit for her grave.
11. Mr. Tulsi argued that as far as the allegation with respect to the
demand of Rs.2.00 lakhs for opening a shop is concerned, the same
would not fall under the definition of dowry. In support of this
submission, Mr. Tulsi has relied upon Rajinder Singh v. State of
Punjab reported in (2015) 6 SCC 477, more particularly para 11
which reads as under:
"11. This Court has spoken sometimes with divergent voices
both on what would fall within "dowry" as defined and what is
meant by the expression "soon before her death". In Appasaheb
v. State of Maharashtra (2007) 9 SCC 721, this Court
construed the definition of dowry strictly, as it forms part of
Section 304B which is part of a penal statute. The court held
that a demand for money for defraying the expenses of manure
made to a young wife who in turn made the same demand to her
father would be outside the definition of dowry. This Court said:
"A demand for money on account of some financial
stringency or for meeting some urgent domestic expenses
or for purchasing manure cannot be termed as a demand
for dowry as the said word is normally understood. The
evidence adduced by the prosecution does not, therefore,
show that any demand for "dowry" as defined in
Section 2 of the Dowry Prohibition Act was made by the
Appellants as what was allegedly asked for was some
money for meeting domestic expenses and for purchasing
manure."
12. Learned senior counsel for the appellants submits that merely because
according to the prosecution witnesses, Arti was taunted for bringing
insufficient dowry or bringing sub-standard items or bringing a
Maruti-800 car instead of a Maruti Esteem Car, the same would not be
covered under Section 304-B of the IPC.
13. Additionally, learned senior counsel for the appellants submits that the
testimonies of the brother and the father, PW-1 and PW-2, are neither
trustworthy nor reliable. The testimonies are full of improvements and
contradictions, thus, it would be highly unsafe to convict the
appellants under Section 304-B of the IPC. Learned senior counsel has
also relied upon the testimony of PW-1 wherein he admitted that it
was customary to provide gifts, which they gave to them at the
marriage of the sister-in-law of the deceased. It is further submitted
that PW-1, PW-2 and PW-3 have testified that there were external
injuries on the body of the deceased which in fact is not supported by
the scientific evidence and the same is also not borne out either from
the death report, as per which there were no external injuries, nor on
the basis of the post-mortem report and thus, no weightage can be
given to such witnesses. Senior counsel also submits that although the
deceased reached the hospital by 3.30 pm, there has been gross
unexplained delay in registering the FIR, which was registered at
11.30 p.m., thus, giving ample opportunity to the family members of
Arti to cook up exaggerated general allegations without assigning any
specific role to any family member.
14. Mr. Tulsi further contends that the testimonies of the star witnesses
would show that the same are full of exaggerations and
embellishments. It has further been contended by Mr. Tulsi that
provisions of Sections 498A and 304-B of the IPC were primarily
enacted to prevent the menace of dowry. It is further submitted by Mr.
Tulsi that Courts have frequently noticed that complaints are not
bonafide, they are filed with oblique motives and unscrupulous
persons invoke these provisions to wreck personal vendetta and
unleash harassment by frivolous complaints. Reliance is placed by Mr.
Tulsi on Sushil Kumar Sharma v. Union of India And Others,
reported at (2005) 6 SCC 281, more particularly para 19 which reads
as under:
"19. The object of the provision is prevention of the dowry
menace. But as has been rightly contended by the petitioner
many instances have come to light where the complaints are not
bona fide and have filed with oblique motive. In such cases
acquittal of the accused does not in all cases wipe out the
ignominy suffered during and prior to trial. Sometimes adverse
media coverage adds to the misery. The question, therefore, is
what remedial measures can be taken to prevent abuse of the
well-intentioned provision. Merely because the provision is
constitutional and intra vires, does not give a licence to
unscrupulous persons to wreck personal vendetta or unleash
harassment. It may, therefore, become necessary for the
legislature to find out ways how the makers of frivolous
complaints or allegations can be appropriately dealt with. Till
then the Courts have to take care of the situation within the
existing frame work. As noted the object is to strike at the roots
of dowry menace. But by misuse of the provision a new legal
terrorism can be unleashed. The provision is intended to be
used a shield and not assassins' weapon. If cry of "wolf" is
made too often as a prank assistance and protection may not be
available when the actual "wolf" appears. There is no question
of investigating agency and Courts casually dealing with the
allegations. They cannot follow any strait jacket formula in the
matters relating to dowry tortures, deaths and cruelty. It cannot
be lost sight of that ultimate objective of every legal system is to
arrive at truth, punish the guilty and protect the innocent. There
is no scope for any pre- conceived notion or view. It is
strenuously argued by the petitioner that the investigating
agencies and the courts start with the presumption that the
accused persons are guilty and that the complainant is speaking
the truth. This is too wide available and generalized statement.
Certain statutory presumption are drawn which again are
reputable. It is to be noted that the role of the investigating
agencies and the courts is that of watch dog and not of a
bloodhound. It should be their effort to see that an innocent
person is not made to suffer on account of unfounded, baseless
and malicious allegations. It is equally indisputable that in
many cases no direct evidence is available and the courts have
to act on circumstantial evidence. While dealing with such
cases, the law laid down relating to circumstantial evidence has
to be kept in view.
15. In support of his argument that the statements of the witnesses are
inconsistent; they are full of improvements and embellishments and
thus, it would be highly unsafe to convict the appellants based on such
statements. Learned senior counsel appearing on behalf of the
appellants has placed reliance on the observations made in Preeti
Gupta And Another v. State of Jharkhand And Another, reported at
(2010) 7 SCC 667, more particularly para 59, which reads as under:
"59. It is a clear-cut case of gross abuse of the dowry laws.
We find it difficult to sustain the conviction of the appellants on
the aforesaid counts based upon the inconsistent, embellished
and improved statements of the witnesses, which materially
contradict their respective statements recorded earlier. The
High Court did not dislodge the reasons given by the trial court
for acquittal. The High Court did not make any reference to the
deposition of Dr. Daulatram Nekumal Gurubani (PW 10) in the
cross-examination and dealt with the case very casually,
adopting a very superficial approach to the whole matter and
brushed aside the allegation of an illicit relationship for which
there had been documentary evidence on record without
recording any cogent reasons for the same. The High Court did
not make any attempt to appreciate the evidence with accuracy
and reversed the findings of the trial court which were based on
the evidence on record and for which detailed reasons had been
assigned."
16. On the contrary, Ms. Aashaa Tiwari, learned Additional Public
Prosecutor for the State and Mr. Bahl, learned counsel for the
complainant submit that the testimonies of the star witnesses are of
sterling quality; contradictions, if any, are only minor; there are no
improvements; and even otherwise, it has been repeatedly held by the
Hon‟ble Supreme Court that an FIR is not an encyclopaedia where all
the particulars are to be furnished. Learned counsels contend that from
the statement made to the SDM on 30.05.1998 at 11.10 p.m. on the
basis of which Rukka was sent, the statements of the father stand duly
corroborated by the statements of the brother of the deceased.
Reliance is placed by Ms. Tiwari on V.K. Mishra and Another v.
State of Uttarakhand and Another, reported at (2015) 9 SCC 588,
more particularly para 13, which reads as under:
"13. FIR is not meant to be an encyclopaedia nor is it
expected to contain all the details of the prosecution case. It
may be sufficient if the broad facts of the prosecution case are
stated in the FIR. Complaint was lodged within few hours after
the tragic event. PW-1 has lost his young daughter just married
before six weeks in unnatural circumstances. Death of a
daughter within few days of the marriage, the effect on the mind
of the father-PW1 cannot be measured by any yardstick. While
lodging the report, PW-1 must have been in great shock and
mentally disturbed. Because of death of his young daughter
being grief stricken, it may not have occurred to PW-1 to
narrate all the details of payment of money and the dowry
harassment meted out to his daughter. Unless there are
indications of fabrication, prosecution version cannot be
doubted, merely on the ground that FIR does not contain the
details."
17. Learned counsel for the State and the complainant further submit that
no leniency can be shown to the appellants on the ground of their age.
In support of this contention, reliance is placed on para 42 of V.K.
Mishra and Another (supra). Para 42 reads as under:
"42. For the offence under Section 304B IPC, the punishment is
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life. Section
304B IPC thus prescribes statutory minimum of seven years. In
Kulwant Singh & Ors. vs. State of Punjab (2013) 4 SCC 177,
while dealing with dowry death Sections 304B and 498A IPC in
which death was caused by poisoning within seven years of
marriage conviction was affirmed. In the said case, the father-
in-law was about eighty years and his legs had been amputated
because of severe diabetes and mother-in-law was seventy eight
years of age and the Supreme Court held impermissibility of
reduction of sentence on the ground of sympathy below the
statutory minimum."
18. Learned counsel for the State and the complainant further submit that
the evidence placed on record would show the poor conduct of the
appellants. It is contended that Dalip, brother of the deceased, had
made a telephone call to his sister on the fateful day at around 1.30
p.m. in the afternoon, when the appellant Poonam had informed him
that his sister, Arti, was busy in some work and when Dalip called
subsequently he was informed that Arti is lying unconscious. No effort
was made by the mother-in-law and sister-in-law who were present in
the house to remove Arti to the hospital or provide first aid to her and
in fact they waited for Dalip, brother of Arti, to come and take Arti to
a hospital in his car. There are no justifiable reasons for this conduct.
19. Learned counsel for the State and the complainant further submit that
merely because the appellants are well-to-do, it does not necessarily
mean that they were not demanding dowry. The demands have been
consistent and since their demands were not fulfilled Arti was sent
back to her parents house and when she was taken back to her
matrimonial home by her brother and father, the appellant Deepak had
stated that she had dug a pit for herself. It is further submitted that the
attitude and conduct of the mother-in-law and sister-in-law were very
strange as when Arti was being removed to the hospital by her brother
in his car, all the jewellery of Arti was being removed by her mother-
in-law and sister-in-law, which speaks volumes of their lust for dowry.
It is further contended that as far as the submissions made by the
learned senior counsel for the appellants are concerned that Arti was
depressed due to her inability to conceive or that she had a premarital
affair with one Tarun and also that she was not allowed to marry one,
Sanjay, are baseless. Such submissions cannot be entertained in the
absence of any iota of evidence. Furthermore, in case Arti was taking
any treatment in Gayatri Hospital as she was unable to conceive,
records from the said nursing home could have been produced/filed to
substantiate this baseless allegations. There is no evidence,
whatsoever, to show that she was in a state of depression.
20. Mr. Bahl, learned counsel for the complainant, in response to the
submission made by the learned senior counsel for the appellants that
the demand of Rs. 2 lakh for opening a shop would not come under
the definition of dowry has relied upon para 20 of Rajinder Singh's
case (supra), wherein the Hon'ble Supreme Court held as under:
"20. Given that the statute with which we are dealing must be
given a fair, pragmatic, and common sense interpretation so as to
fulfil the object sought to be achieved by parliament, we feel that
the judgment in Appasaheb's case followed by the judgment of
Vipin Jaiswal do not state the law correctly. We, therefore,
declare that any money or property or valuable security demanded
by any of the persons mentioned in Section 2 of the Dowry
Prohibition Act, at or before at any time after the marriage which
is reasonably connected to the death of a married woman, would
necessarily be in connection with or in relation to the marriage
unless, the facts of a given case clearly and unequivocally point
otherwise. Coming now to the other important ingredient of
Section 304B-what exactly is meant by "soon before her death?"
21. At this stage, Mr.Tulsi has submitted that the Court should consider
that all the appellants except the appellant Deepak (husband of the
deceased) can only be convicted under Section 498-A of the IPC and
that their sentence should be modified to the period already undergone
i.e. four years by the father-in-law, who is 68 years of age; two years
and six months by the mother-in-law, who is 65 years of age; four
years and nine months by the brother-in-law and one and a half years
by the sister-in-law.
22. We have heard learned counsel for the parties, considered their rival
submissions, carefully examined the testimonies of the witnesses on
record and the impugned judgment rendered by the trial court.
23. Section 498-A of the IPC was introduced in the year 1983 with a
purpose to extend protection to the weaker spouse and Section 304-B
of the IPC was introduced in the year 1986 to curb the menace of
dowry deaths.
24. Before we deal with the rival submissions of the counsel for the
parties, we deem it appropriate to refer to the testimonies of some of
the material witnesses in detail.
25. PW-1 Dalip Kumar Srivastav (brother of the deceased Arti) has
testified that the marriage between Deepak and his sister, Arti, was
solemnised on 07.12.1996. PW-1 has further testified that the marriage
was performed according to Hindu rites and customs and with great
pomp and show. A car, gold, silver, a colour TV, a fridge, utensils,
furniture for the entire house, etc. were given in the marriage. After
two months of marriage, when Arti visited her parental house, she told
them that all the appellants used to tell her that by giving a Maruti-800
car in the marriage they had insulted them and instead a Maruti
Esteem car should have been given in the marriage. All the appellants
had also complained to Arti that the clothes, which were given in the
marriage, were of inferior quality. Arti was also taunted on the above
accounts and derogatory words were used for his family.
26. PW-1 Dalip has further testified that he had visited the house of the
appellants to talk to the father-in-law and mother-in-law of her
deceased sister and explained that they had given to the best of their
abilities in the marriage and in case any folly was committed by them,
it would be rectified. PW-1 was told by the mother-in-law and father-
in-law of his deceased sister that since they had not given anything to
their relatives, they should pay Rs.50,000/-. PW-1 returned after
seeking time to arrange for the amount. PW-1 visited the house of his
sister and on one occasion gave Rs.10,000/, on the second occasion he
gave Rs.25,000/- and on the third occasion he gave Rs.15,000/- to
them. PW-1 has further deposed that Arti visited her parent‟s house
only five or six times as her in-laws did not allow her to visit them.
They could talk to Arti over the telephone only in the absence of her
in-laws and in case her in-laws came to know they used to beat her.
PW-1 was also not allowed to meet his sister for more than five
minutes in case he visited her house. PW-1 has further stated that on
07.12.1997, on the wedding anniversary of Arti he gave Rs. 11,000/-
to her parents-in-law. On seeing the amount, her father-in-law threw
the cash amount on the face of PW-1 exclaiming if he was a kangla
and further stated that at least Rs. 51,000/- should have been given. On
01.02.1998, PW-1 visited the house of the appellants in connection
with the marriage of their daughter Sonia and gave Rs. 15,000/- in
cash, a gold ring, a saree and sweets to the appellants. PW-1 was
abused and told that they had only one daughter and at least
Rs.50,000/- should have been given to them. On 23.02.1998 Rajinder
(father-in-law), Jitender (brother-in-law) and Deepak (husband) along
with Arti came to the house of PW-1. Arti told him that her father-in-
law wanted to start some work for Deepak and for that they required
Rs.2.00 lakhs. PW-1 then told Rajinder, father-in-law, that at that time
he was not in a position to pay the said amount but he would arrange
for it. The accused persons told him that they require money within a
month failing which they should keep Arti at his place, there was no
scarcity of girls for them and they would get Rs.10.00 lakhs after
remarrying their son. On their return, Arti was harassed. It has further
been deposed by PW-1 that previously they used to beat Arti but
thereafter she was not even served food and nobody used to talk to
her.
27. PW-1 has also testified that on receipt of a telephone call for demand
of money by the in-laws of her sister, he again went to their house and
sought further time. On 29.5.1998, Deepak along with Arti came to
the parental home in the morning; he did not come inside the house
and left Arti saying that he would come back in the evening. He also
stated that he wanted a reply by the evening with regard to Rs.2.00
lakhs. Arti further informed him that Deepak had told her that if she
did not get Rs.2.00 lakhs, she need not come home. In the evening,
when Deepak came home and as the money was not given to him, he
abused Dalip and asked him to keep his sister at his house. Deepak left
without Arti. Dalip then took his sister to the residence of her in-laws
at Shalimar Bagh, where except Sonia all the appellants were present
in the house. Rajinder, father-in-law then asked him if he had brought
the money. PW-1 had informed that due to sluggish business, he was
not able to arrange the money. On this Deepak said that Arti was
digging a well for herself. PW-1 had left Arti at her matrimonial
home. The next day, between 8.00 a.m. and 9.00 a.m., PW-1
telephoned his sister, Arti, who told him that after she was left in her
matrimonial home, she was beaten by the appellants, she was not
given food and nobody talked to her. She then put off the phone. PW-
1 called her up again at lunch. The phone was picked up by Poonam,
sister-in-law, who informed him that Arti was working and he should
call after sometime. PW-1 subsequently made a phone call to Arti, the
accused Poonam picked up the phone and told him that his sister was
lying unconscious in the room and he should come and take her. PW-
1, his brother and his mother reached Shalimar Bagh, where Veena,
Rajinder and Poonam, were standing outside their house. PW-1 was
told that Arti was inside the house. PW-1 asked them as to why they
had not taken Arti to the hospital, to which they replied that they were
waiting for him as they did not have any vehicle. Arti was put in the
rear seat of the car by Veena and Poonam. Froth was coming out of
Arti‟s mouth and her clothes were torn. While Arti was in the car,
Poonam removed golden ear tops of Arti while Veena removed golden
mangalsutra and golden chain from the neck of Arti. Arti was taken to
Jain Nursing Home, where they were informed that she had died and
they were advised that Arti should be taken to LNJP Hospital. At
LNJP Hospital, Doctors declared Arti brought dead.
28. PW-1 has further testified that thereafter they reached the Police
Station, where the SDM recorded the statement of his father. His
statement was also recorded, being PW-1/A. During cross-
examination, PW-1 admitted that Poonam and Veena accompanied
him to Jain Nursing Home in his car, carrying his sister. PW-1 has
stated that his family was not immediately informed about the
incident; rather they came to know about it when he himself called
Arti. PW-1 has further stated that Poonam did not ask him to come
immediately. In the first phone call, PW-1 was told that Arti was
doing household job and in his second phone call made after half an
hour, Poonam told him that Arti was lying unconscious and he should
come and pick her.
29. PW-1 has further clarified during cross-examination that he had not
stated to the SDM that Rs.11,000/- was paid to the father-in-law but he
had recorded that it was given to the family members (ghar walon ko).
PW-1 further stated during cross-examination that in his first
statement before the SDM, he had stated that father-in-law of Arti
wanted to start some work for Deepak and for that they were in need
of Rs.2.00 lakhs.
30. PW-1 has denied the suggestion with regard to the proposal of
marriage of one Sanjay Kumar for Arti. PW-1 also denied that any
locket in which it was engraved "Tarun-L-Dimple" was ever found.
PW-1 also termed it as incorrect that Arti was married to Deepak
against her wishes. PW-1 also denied that Arti was being treated at
Gayatri Nursing Home as she was unable to conceive a child or that
Arti was unhappy because her marriage was performed with Deepak
against her wishes or because she could not conceive. PW-1 admitted
that at the time of his sister‟s marriage, the appellants had good
business, they were financially sound and they had two shops one in
Model Town and another in Kingsway Camp. During cross-
examination, PW-1 has also stated that there were customary gifts that
were offered by them to the in-laws of Arti at the time of marriage of
Sonia.
31. PW-2 Roop Kishore Srivastava (father of the deceased) has also
testified that at the time of marriage of his daughter, the appellants had
made a demand for a car. PW-2 had given 40 tolas of gold, 3.5 kg of
silver, one Maruti car and other household articles like sofa set,
dinning set, TV, utensils, Geyser, Refrigerator, etc., as mentioned in
the list, Exhibit PW-2/A. PW-2 has further testified that after two
months of marriage of Arti, the appellants started saying that they
were insulted by giving a Maruti car and they should have been given
an Esteem car. They also told him that the household articles which
were given to them were of inferior quality and thus, they were not
given to their relatives due to which they had to bear the insult. PW-2
has further testified that all this was narrated to him by his daughter,
Arti, when she came to his house. PW-2 has further deposed that
thereafter he firstly sent Rs.10,000/- then Rs.15,000/- secondly and
Rs.25,000/- thirdly, through his son, in order to distribute the money
amongst the relatives of the appellants. Thereafter, PW-2, through his
son, Dalip, sent Rs.11,000/- and sweets to the appellants on the
wedding anniversary of his daughter. After Dalip returned from the
matrimonial house of Arti, Dalip told PW-2 that he was insulted and
the appellants said that they should have given at least Rs.51,000/-.
Thereafter in the marriage of Sonia PW-2 gave Rs.15,000/-, one
golden ring, one saree, sweets, etc. After return from the marriage,
Dalip informed PW-2 that the appellants threw money on his face and
said that at least Rs.50,000/- should be given to Sonia as they have
only one daughter. PW-2 has further deposed that his daughter was not
treated properly by her in-laws, she was abused and beaten by the
appellants. After the marriage of Sonia, the appellants (Rajinder,
Jitender, Deepak) and Arti came to the house of PW-2 in the evening
and told PW-2 that, as already told to Arti, PW-2 should arrange
Rs.2.00 lakhs as the appellant Deepak wanted to start his own work.
PW-2 told them that at that time he was in a very tight position and the
moment he would be able to arrange the money as demanded by them,
he would hand it over to them. Even after that, the appellants
demanded Rs.2.00 lakhs on several occasions. PW-2 informed the
appellants that he was not in a position to give the money, as
demanded by the appellants, as he was in a very financially difficult
position. Thereafter, the appellants told PW-2 to arrange for the
aforestated money within one month, failing which he could keep his
daughter at his home.
32. PW-2 has further testified that on 29.05.1998 Deepak came to the
house of PW-2 along with Arti and left Arti outside his house. Deepak
was asked by Dalip to come inside but Deepak replied that he would
return in the evening and also told Arti that he wanted reply in the
evening. In the evening Deepak came and asked about Rs.2.00 lakhs.
PW-2 has further testified that after Deepak left Arti outside his house,
he enquired from Arti as to what was the matter. Arti replied that it
was the same issue of giving Rs.2.00 lakhs to the appellants, failing
which they would not keep her. In the evening, Deepak came to the
house of PW-2. PW-2 told him that Rs.2.00 lakhs could not be
arranged. Deepak left for his house leaving Arti in the house of PW-2.
Since Arti was weeping and insisted that she should be sent to her
matrimonial home in the night itself, they took her to her matrimonial
house where they found all the appellants except Sonia. PW-2
implored the appellants for some more time for making arrangement
of the money. The appellants said that they were digging a well for
Arti. PW-2 has also testified that he even begged that if any mistake
had been committed by them, it should be excused. Thereafter they
left Arti in her in-laws house.
33. It has further been testified by PW-2 that on 30.05.1998 at about
1/1.30 p.m., his son, Dalip, had told him that Arti was lying
unconscious in her in-laws house, as informed by her elder sister
(Jethani). PW-2 and all his family members went to the house of in-
laws of Arti at Shalimar Bagh and when they reached there they were
not allowed to enter in the house and his daughter was brought out of
the house by sister-in-law (Jethani), Poonam, and mother-in-law,
Veena. They noted that froth was coming out from the mouth of Arti
and her shirt was torn. Arti was taken in his car. The appellants told
them that they do not have any arrangement of vehicle (car). At that
time, they enquired from the appellants as to what had happened to
Arti, to which they did not reply. As they started proceeding towards
the nursing home, the appellants, Veena and Poonam, took out
mangalsutra, gold chain, and gold rings from the body of Arti. PW-2
asked them as to why they are removing these articles from the body
of her daughter, to which they replied that let them be removed. Arti
was taken to Jain Nursing Home. On examination by the Doctor in the
nursing home, Arti was declared dead, however, the doctor asked
them to take Arti to a Government Hospital. Thereafter, they took Arti
to LNJP Hospital where Doctors, upon examination, declared Arti
brought dead. Thereafter, they were asked by the Police officer of PS
Shalimar Bagh to come to the Police Station. The SDM recorded his
statement, which is Exhibit PW-2/A, and which bears his signatures at
point „A‟. Thereafter the appellants Veena, Rajinder and Deepak were
arrested by the Police. PW-2 has also testified that he is confident that
the appellants had poisoned his daughter to death.
34. During cross-examination, PW-2 has stated that at the time of
choosing the appellant Deepak, as an alliance for his daughter, he
considered every aspect regarding status and suitability for his
daughter and for his family. Deepak had a settled business. Before the
marriage of his daughter, he enquired and found that the family of the
bridegroom was financially well-off and they were earning
handsomely. PW-2 denied the suggestion that his daughter Arti was
inclined to marry Sanjay, brother-in-law of his elder daughter. He also
denied the suggestion that a boy called Tarun Grover used to live in
their neighbourhood. He also denied the suggestion that Tarun Grover
used to study with his daughter as his daughter had studied in a girls
school. He also denied that his daughter was inclined towards Tarun
Grover and further denied with respect to a locket having been
inscribed „Tarun-L-Dimple‟. He denied about any treatment was
received by his daughter from Dr. Sailesh Goel, in connection with
fertilization of his daughter or that she was being treated at Gayatri
Nursing Home. He also denied that as Arti did not have any child, she
had started becoming depressed. In his cross-examination, PW-2 has
further stated that Deepak and Jitender had two shops, one in the
Model Town and the other in Kingsway Camp. Both the shops were in
existence prior to the marriage and the appellants had good business.
35. PW-3 Smt. Yashoda (mother of the deceased) deposed on the similar
lines as deposed by PW-1 Sh. Dalip Kumar Srivastava and PW-2 Sh.
Roop Kishore Srivastava.
36. The criminal machinery was set into motion vide DD No. 25A
(Ex.PW-13/A) which was recorded on 30.05.1998 at PS Shalimar
Bagh. On the fateful day, PW-13 Const. Babu was posted as Duty
Constable in LNJP Hospital who informed PS Shalimar Bagh. The
said information was proved by him as Ex.PW-13/A. An FIR was
registered by PW-7 HC Dharam Singh on 30.05.1998 and was proved
by him as Ex.PW-7/A.
37. PW-17 SI Mahavir Prasad was the Investigating Officer in the present
case who testified that on 30.05.1998, he was posted at Police Station
Shalimar Bagh and on receipt of DD No. 25A; he along with
Constable Bodhan Lal reached LNJP Hospital. As the deceased was
declared „brought dead‟, the dead body was sent to the mortuary; from
there he returned to the spot and collected the articles lying near the
spot. He found a tin containing baygon spray and a towel of white
colour and a vest of Sando inside the room. The vest and towel was
giving a foul smell of baygon spray. All these articles were sealed
vide memo Ex.PW-14/A and sent for examination. PW-17 also
informed the SDM and the SHO who had also reached there. At the
Police Station, SDM recorded the statement of PW-2 Roop Kishore
Srivastava (father of the deceased) and based on his statement, the
present case was registered. PW-17 further deposed that on the
intervening night of 30/31.05.1998, he arrested appellants Deepak,
Rajender and Veena. Subsequently, on 21.10.1998, PW-17 arrested
appellant Jitender and on 27.10.1998 he arrested appellant Poonam.
38. With regard to the medical evidence, PW-6 Dr. Sushil Meena prepared
the MLC of the deceased which is Ex.PW-6/B and deposed that on
30.05.1998, he was posted as Junior Resident, in LNJPN Hospital,
Casualty Department. At about 3:20 p.m., the deceased Arti Srivastava
wife of Deepak Srivastava was brought by her brother and jethani.
PW-6 further deposed that when he examined the patient, he found
that she had no pulse, no heart sound, no respiration, her pupils were
constricted and she did not react to light. White froth was coming out
of her mouth and her nose. She was declared „brought dead‟ at 4:05
p.m.
39. PW-9 Dr. Yoginder Bansal who conducted post-mortem examination
of the deceased on 31.05.1998. His detailed report is Ex.PW-9/A.
PW-9 deposed in his testimony as under:
"EXTERNAL INJURIES:/EXAMINATION:
There were no external injuries.
INTERNAL EXAMINATION
1. Stomach: full of brownish fluid with kerosene like smell was
present. Walls were congested. All other abdominal organs
were also congested.
Opinion:
Internal viscera was preserved and sealed to be sent for
chemical examination to confirm the presence of poison. PM
report in original, eight inquest papers, duly initialled by me.
Dead body, a sealed viscera box and sample seal of the Deptt.
was handed over to the IO. My detailed post-mortem
examination report is Ex.PW9/A bears my signature and seal of
my office and is correct. I have seen the viscera report sent by
CFSL No. CFSL/EE/98(DEL-699, signed by A.K. Majee, dated
25.1.99 and according to my opinion death in this case was due
to carbamate insecticidal poison."
40. As is evincible from the post-mortem report of the deceased that the
cause of death was due to carbamate insecticidal poison.
41. The first question which arises for consideration of this Court is as to
whether the evidence available on record is sufficient to bring home
the guilt of the appellants under Section 498A and Section 406 of IPC
or not?
42. In this regard, learned counsel appearing for the appellants submitted
that the conviction of the appellants is not contested before this Court
for the offence committed under Section 498A, subject to the
condition that the sentence of all the appellants, except the husband of
the deceased, be modified to the period already undergone.
43. Cruelty as defined in Section 498A of IPC must meet the following
requirements:
i) There should be harassment of the woman;
ii) Harassment should be with a view to coercing her or any person
related to her to meet the unlawful demand of property or
valuable security;
iii) The harassment may be even where on account of failure by the
woman or any person related to her to meet any such demand
earlier made.
44. In this regard, it would be necessary to analyse the evidence available
on record. As per the testimony of PW-1 Dalip Kumar Srivastava, all
the appellants used to taunt his sister that by giving a Maruti-800 car
in the marriage, they have been insulted and a Maruti Esteem car
ought to have been given. The deceased was also taunted that instead
of Philips T.V., a Sony T.V. should have been given. Moreover, she
was taunted for bringing inferior quality clothes. It has come in
evidence that to stop the taunting of the appellants, PW-1 gave Rs.
50,000/- which was paid in three installments of Rs. 10,000/-, Rs.
25,000/- and Rs. 15,000/- to the parents of the appellant Deepak
Srivastava. The law in this regard is well settled that taunting made by
the parents-in-law or the relatives of the deceased with regard to the
inferior goods brought in the dowry does not amount to demand of
dowry.
45. Another Division Bench of this Court, of which one of us (G. S.
Sistani, J.) was also a member, in the case of Sonia vs. State of Delhi
MANU/DE/2064/2016, while acquitting the appellant Sonia (one of
the co-accused whose Criminal Appeal No. 1/2004 was decided on
04.02.2016) under Section 498A of IPC held that the name of the
appellant Sonia did not find mention in the alleged demands of dowry
made by the in-laws of the deceased. The allegations against the
appellant Sonia were found to be weak, vague and general in nature.
46. We may profit from the view taken in the case of Bimla Gupta and
Ors. vs. State of Delhi reported at MANU/DE/8245/2007 whereby the
charges framed against the accused persons by the Trial Court under
Section 498A, 304B read with Section 34 of IPC were set aside due to
insufficient evidence against them including the evidence of taunting
by her in-laws. Relevant para 20 reads as under:
"20. The evidence relied upon is the statement that Geeta was
taunted, by her in-laws after marriage. As far as the Petitioners
are concerned, it is alleged that they asked the deceased to
arrange for a further amount, to help her brother-in-law's
business. This is no doubt some evidence; it may even be said to
raise suspicion. However, in my opinion, this material, by itself
cannot constitute grave suspicion, warranting charges. I am
Therefore of the opinion that there is insufficient evidence, to
conclude that the petitioners, prima facie, were involved in
commission of the offence punishable under Section 498-A
IPC."
(Emphasis Supplied)
(Also see Smt. Neera Singh vs. The State (Govt. of NCT of Delhi)
and Ors. reported at 138 (2007) DLT 152, (Paragraph 1, 2, 6 and
7)
47. In the light of the aforesaid dicta, we are of the considered view that
mere taunting will not bring the offence of Section 498A of IPC,
unless it is brought out that it was intended to compel the deceased to
take the extreme step of taking her life.
48. We may note that the learned Trial Court was influenced by the fact
that the deceased was not taken to the hospital by her in-laws and
when the first call was made by Dalip Srivastava (brother of the
deceased), he was being informed that his sister was busy doing some
household work. Additionally, the deceased was only removed to the
hospital by the brother of the deceased after he reached her
matrimonial home. The Trial Court further noted that the greed of the
in-laws of the deceased is evident from the fact that all the jewellery
items were removed by her mother-in-law while removing her to the
hospital.
49. Adverting to the facts and circumstances of the case, we are of the
considered view that the prosecution has established its case against
all the appellants beyond reasonable doubt to the effect that deceased
was harassed or meted with cruelty for or in connection with the
demand for dowry. Thus, we conclude by convicting all the appellants
Poonam Srivastava, Jitender Srivastava, Veena Srivastava, Deepak
Srivastava and Rajinder Srivastava for the offence punishable under
Section 498A of IPC.
50. Coming to the conviction of all the appellants under Section 304B of
IPC, we shall consider the role played by the appellants Poonam
Srivastav, Jitender Srivastava and Veena Srivastava on one side and
the case of Rajinder Srivastava, Deepak Srivastava under separate
heads.
Role of the appellants Poonam Srivastav, Jitender Srivastava and Veena
Srivastava for the offence punishable under Section 304B of IPC:
51. The next question which comes for consideration before this Court is
as to whether the deceased was subjected to cruelty or harassment for
or in connection with any demand for dowry by the appellants to
attract Section 304B of IPC?
52. In the case of Kans Raj v State of Punjab, reported at (2000) 5 SCC
207, the Hon‟ble Supreme Court laid down the following ingredients
which need to be proven against the accused persons before they can
be convicted under this Section:
a. The death of a woman must be caused by burns or bodily
injury or had occurred otherwise than under normal
circumstances;
b. Such death should have occurred within 7 years of her
marriage;
c. The deceased was subjected to cruelty or harassment by
her husband or by any relative of her husband;
d. Such cruelty or harassment should be for or in connection
with the demand of dowry; and
e. To such cruelty or harassment the deceased should have
been subjected soon before her death.
53. To attract conviction under Section 304-B of the IPC, the most
essential aspect which needs to be proved is that the cruelty or
harassment for bringing insufficient dowry must be soon before her
death. Now the question which arises for consideration is as to what
period may be considered as „soon before her death‟.
54. In the case of Kaliyaperumal v. State of T.N. reported at (2004) 9
SCC 157, the Hon‟ble Supreme Court while dealing with the
expression „soon before her death‟ held as under:
"5. A conjoint reading of Section 113-B of the Evidence Act and
Section 304-B IPC shows that there must be material to show
that soon before her death the victim was subjected to cruelty or
harassment. The prosecution has to rule out the possibility of a
natural or accidental death so as to bring it within the purview
of the "death occurring otherwise than in normal
circumstances". The expression "soon before" is very relevant
where Section 113-B of the Evidence Act and Section 304-B IPC
are pressed into service. The prosecution is obliged to show that
soon before the occurrence there was cruelty or harassment and
only in that case presumption operates. Evidence in that regard
has to be led in by the prosecution. "Soon before" is a relative
term and it would depend upon the circumstances of each case
and no straitjacket formula can be laid down as to what would
constitute a period of soon before the occurrence. It would be
hazardous to indicate any fixed period, and that brings in the
importance of a proximity test both for the proof of an offence of
dowry death as well as for raising a presumption under Section
113-B of the Evidence Act. The expression "soon before her
death" used in the substantive Section 304-B IPC and Section
113-B of the Evidence Act is present with the idea of proximity
test. No definite period has been indicated and the expression
"soon before" is not defined. A reference to the expression
"soon before" used in Section 114 Illustration (a) of the
Evidence Act is relevant. It lays down that a court may presume
that a man who is in the possession of goods soon after the theft,
is either the thief who has received the goods knowing them to
be stolen, unless he can account for his possession. The
determination of the period which can come within the term
"soon before" is left to be determined by the courts, depending
upon facts and circumstances of each case. Suffice, however, to
indicate that the expression "soon before" would normally
imply that the interval should not be much between the cruelty
or harassment concerned and the death in question. There must
be existence of a proximate and live link between the effect of
cruelty based on dowry demand and the death concerned. If the
alleged incident of cruelty is remote in time and has become
stale enough not to disturb the mental equilibrium of the woman
concerned, it would be of no consequence."
(Emphasis Supplied)
55. As far as the role and evidence against the appellants Poonam
Srivastav, Jitender Srivastava and Veena Srivastava for the offence
punishable under Section 304B of IPC is concerned, it may be noted
that there are no specific allegations against the appellants in the
evidence discussed aforementioned with regard to the demand for
dowry which can show that soon before her death there was a demand
for dowry from the deceased by the appellants Poonam Srivastav,
Jitender Srivastava and Veena Srivastava which had a live link and
proximate link to her death and none of the witnesses have alleged any
role to the appellants Poonam Srivastav, Jitender Srivastava and
Veena Srivastava. Even otherwise, the amount which was given in
installments of 10,000/-, 15,000/- and 25,000/- was handed over to the
parents of the appellant Deepak Srivastava.
56. In the case of Amar Singh vs. State of Rajasthan reported at (2010) 9
SCC 64, the Apex Court while modifying the sentence of the appellant
under Section 304B of the IPC sentenced him for a period of ten years
and also maintained the acquittal recorded by the High Court of
Rajasthan in favour of the mother of the appellant (Gordhani) and
younger brother of the appellant (Jagdish) of the appellant. Relevant
para 29, 31 and 32 read as under:
"29. We are unable to accept this submission of Dr. Singhvi.
The evidence of PW 2, PW 4 and PW 5 shows that Jagdish and
Gordhani played a role in the demand of dowry of a scooter or
Rs. 25,000 for Amar Singh, but demand of dowry by itself is not
an offence under Section 498-A or Section 304-B IPC. What is
punishable under Section 498-A or Section 304-B IPC is the act
of cruelty or harassment by the husband or the relative of the
husband on the woman. It will be also clear from Section 113-B
of the Evidence Act that only when it is shown that soon before
her death a woman has been subjected by any 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 within the meaning of Section 304-B IPC. The act
of subjecting a woman to cruelty or harassment for, or in
connection with, any demand for dowry by the accused,
therefore, must be established by the prosecution for the court
to presume that the accused has caused the dowry death.
....
31. The evidence of PW 5 (brother of the deceased) is that
whenever the deceased used to come home she used to complain
that her in-laws have been teasing her and they were demanding
a scooter or Rs. 25,000 for a shop and that when the deceased
came home one month prior to her death, she complained that
her mother-in-law and all other in-laws used to torture her and
taunt her that she did not bring anything, but PW 5 has not
described the exact conduct of the mother-in-law and other in-
laws on account of which the deceased felt tortured and taunted.
On the other hand, the evidence of PW 4 is clear that Amar
Singh used to taunt her that she has come from a hungry house.
Thus, there was evidence in the case of Amar Singh about his
exact conduct which caused harassment to the deceased but
there was no such evidence in the case of Jagdish and
Gordhani.
32. A prosecution witness who merely uses the word "harassed"
or "tortured" and does not describe the exact conduct of the
accused which, according to him, amounted to harassment or
torture may not be believed by the court in cases under Sections
498-A and 304-B IPC. For this reason, the High Court has
taken a view that the charges against Jagdish and Gordhani
have not been established beyond reasonable doubt and that
their case is distinguishable from that of Amar Singh and that
Jagdish and Gordhani appear to have been implicated because
they were members of Amar Singh's family."
(Emphasis Supplied)
57. In the case of Kans Raj v. State of Punjab reported at (2000) 5 SCC
207, the Hon‟be Supreme Court cautioned that in cases where
accusations of dowry deaths are made, the overt acts attributed to
persons other than the husband are required to be proved beyond
reasonable doubt and by mere conjectures and implications such
relations cannot be held guilty for the offence relating to dowry
deaths. In the aforesaid case, the Apex Court further observed that a
tendency has developed for roping in all relations of the in-laws of the
deceased in the matters of dowry deaths which, if not discouraged, is
likely to affect the case of the prosecution even against the real
culprits.
58. It was noticed by the Hon‟ble Supreme Court in the case of Sushil
Kumar Sharma vs. Union of India and Ors. reported at (2005) 6 SCC
281, that undoubtedly the object of the provision is prevention of
dowry menance. However, now many instances have been noticed
where the complaints are not bonafide and had been filed with oblique
motive. Relevant para 8 of the judgment reads as under:
"19. The object of the provision is prevention of the dowry
menace. But as has been rightly contended by the petitioner
many instances have come to light where the complaints are not
bona fide and have been filed with oblique motive. In such cases
acquittal of the accused does not in all cases wipe out the
ignominy suffered during and prior to trial. Sometimes adverse
media coverage adds to the misery. The question, therefore, is
what remedial measures can be taken to prevent abuse of the
well-intentioned provision. Merely because the provision is
constitutional and intra vires, does not give a licence to
unscrupulous persons to wreak personal vendetta or unleash
harassment. It may, therefore, become necessary for the
legislature to find out ways how the makers of frivolous
complaints or allegations can be appropriately dealt with. Till
then the courts have to take care of the situation within the
existing framework. As noted above the object is to strike at the
roots of dowry menace. But by misuse of the provision a new
legal terrorism can be unleashed. The provision is intended to
be used as a shield and not as an assassin's weapon. If the cry
of "wolf" is made too often as a prank, assistance and
protection may not be available when the actual "wolf"
appears. There is no question of the investigating agency and
courts casually dealing with the allegations. They cannot follow
any straitjacket formula in the matters relating to dowry
tortures, deaths and cruelty. It cannot be lost sight of that the
ultimate objective of every legal system is to arrive at the truth,
punish the guilty and protect the innocent. There is no scope for
any preconceived notion or view. It is strenuously argued by the
petitioner that the investigating agencies and the courts start
with the presumptions that the accused persons are guilty and
that the complainant is speaking the truth. This is too wide and
generalized statement. Certain statutory presumptions are
drawn which again are rebuttable. It is to be noted that the role
of the investigating agencies and the courts is that of a
watchdog and not of a bloodhound. It should be their effort to
see that an innocent person is not made to suffer on account of
unfounded, baseless and malicious allegations. It is equally
undisputable that in many cases no direct evidence is available
and the courts have to act on circumstantial evidence. While
dealing with such cases, the law laid down relating to
circumstantial evidence has to be kept in view."
(Emphasis Supplied)
59. In the case of Karan Singh & Another vs. State of Haryana reported
at (2014) 5 SCC 738, the Hon‟ble Supreme Court while modifying the
conviction of the appellants from Section 304B to under Section 306
of the IPC observed that the only evidence against the appellants was
to the ill treatment and harassment which was not related to any
specific demand for dowry. Relevant para 19, 21 to 23 read as under:
"19. Even the statement given by Sunita does not disclose any
specific demand for dowry except that there is bald statement
that she and Manju were taunted for bringing insufficient
dowry. The tenor of her testimony suggests that she and Manju
were being generally harassed and ill-treated by Karan Singh
and Mukhtiari. The ill-treatment and harassment does not
appear to be related to any specific demand for dowry.
....
21. Neither Ram Kishan nor Vidya Devi nor Sunita has given
any indication of any specific demand for dowry. Under these
circumstances, it is difficult for us to conclude that the
provisions of Section 304-B IPC would be attracted. It has been
held times without number that:
"9. To establish the offence of dowry death under
Section 304-B IPC the prosecution has to prove beyond
reasonable doubt that the husband or his relative has
subjected the deceased to cruelty or harassment in
connection with demand of dowry soon before her
death." [More recently in Indrajit Sureshprasad Bind v.
State of Gujarat, (2013) 14 SCC 678, p. 681, para 9:
(2014) 4 SCC (Cri) 337]
As such the ill-treatment and subsequent death of Manju would
not fall within the meaning of a dowry death under Section 304-
B IPC.
22. But, there is no doubt that Manju and Sunita were subjected
to ill-treatment and harassment from time to time by Karan
Singh and Mukhtiari though it was not relatable to any demand
for dowry. The evidence on record shows that they were turned
out from the matrimonial home on more than one occasion.
They were even turned out from the matrimonial home within
about ten days after Manju gave birth to a baby boy. Ram
Kishan had spoken about this to Satbir and Sukhbir but in spite
of this, the attitude of Karan Singh and Mukhtiari did not
change. As mentioned above, no allegation has been made
against Satbir and Sukhbir. Again, a few days before Manju's
death, Sunita was subjected to beating and turned out of the
matrimonial home. Although, Manju did not accompany her
sister, she paid the price for staying back in Village Raiya.
23. From the facts of the case it is quite clear to us that
although there may be no evidence of Manju having been
compelled by Karan Singh and Mukhtiari to consume poison,
they had created a situation over a sufficiently long period of
time whereby she was left with no option but to take her life. It
is quite unlikely that a young lady, particularly one having a
year old child, would take her life unless she had some mental
health issues (which is not the case) or was compelled by
circumstances to do so. An offence of abetment of suicide
punishable under Section 306 IPC is much broader in scope
than an offence punishable under Section 304-B IPC.
[Bhupendra v. State of M.P., (2014) 2 SCC 106]. In this case an
offence punishable under Section 306 IPC is clearly made out
against Karan Singh and Mukhtiari."
(Emphasis Supplied)
60. In view of the facts and circumstance of the present case, we find that
there are no specific incidents mentioned in the testimonies of the
witnesses to show that at different points of time the appellants
Poonam Srivastav, Jitender Srivastava and Veena Srivastava had
tortured or demanded dowry from the deceased and her parents soon
before her death. Applying law to the facts and circumstances of the
present case, we are of the considered view that the allegations against
the appellants Poonam Srivastava, Jitender Srivastava and Veena
Srivastava are vague and general in nature.
61. Undoubtedly, it is a cardinal principle of criminal jurisprudence that
the guilt of the accused is to be established beyond any reasonable
doubt. There lies a duty on the Courts to find the truth in the
prosecution story against the accused and to consider the case of
prosecution by legal, reliable and unimpeachable evidence before an
accused can be convicted. A similar view was taken in Sarwan Singh
Rattan Singh v. State of Punjab: AIR 1957 SC 637; Anil W. Singh v.
State of Bihar, (2003) 9 SCC 67; Reddy Sampath W. v. State of A.P.,
(2005) 7 SCC 603 and Ramreddy Rajesh Khanna Reddy v. State of
A.P., (2006) 10 SCC 172.
62. Having regard to the evidence available on record, the prosecution has
failed to bring home the guilt of the appellants Poonam Srivastava,
Jitender Srivastava and Veena Srivastava beyond reasonable doubt for
the offence punishable under Section 304B of the IPC and can only be
convicted under Section 498A of the IPC. We are, therefore, of the
opinion that in view of the material on record, the Trial Court has
rightly convicted the appellants Poonam Srivastav, Jitender Srivastava
and Veena Srivastava under Section 498A of the IPC. However, the
conviction of the appellants Poonam Srivastav, Jitender Srivastava and
Veena Srivastava under Section 304B is erroneous and thus set aside.
Role of the appellants Deepak Srivastava and Rajinder Srivastava for the
offence punishable under Section 304B of the IPC:
63. It has emerged from the evidence that a demand of Rupees 2 lakhs
was made by the appellant Rajender for the purpose of business of the
appellant Deepak Srivastava. The said demand was made on two
occasions i.e. 23.02.1998 and 29.05.1998. The relevant part of the
examination-in-chief of PW1 Dalip Kumar Srivastava (brother of the
deceased) reads as under:
"On 23.02.1998 accd. Rajinder, Jitender and Deepak alongwith
my sister came to our house when my sister told me that her
father in law wanted to start some work for Deepak and for that
they were in need of Rs.2 lacs. On hearing this, I told to accd.
Rajinder the father in law of my sister that at that time I was not
in a position to pay the said amount and then some time be
given to me and whatever I could arrange I will give. On
hearing my reply, the accd. persons told me that they required
money within a month failing which we should keep our sister at
our place (Home). They also told that there was no scarcity of
girls for them and that they would get Rs. 10 lacs after
remarrying his son. Thereafter, they all left away place. My
sister also accompanied them.
.....
On 29.05.1998 Deepak alongwith my sister came to our house
in the morning and on my insisting to go in our house he did not
go in and leaving my sister beneath our house saying that he
would come back in the evening and he further commented that
he wanted reply by evening to whatever he stated to my sister. I
asked from my sister what the matter was. She replied that it
was the same matter of Rs. 2 lac. and he further said that
Deepak asked her if he did not get Rs. 2 lac she need not to
come to him. I asked my sister no matter when Deepak would
come in the evening, I will talk to him. In the evening, accd.
Deepak came on my refusing not giving money to him he abused
me and asked me to keep my sister at my house and said come to
our house if I had Rs. 2 lac. and he went leaving my sister at our
house. After leaving Deepak in my sister started weeping asking
that she was to go to our house (in laws). I said to her that I will
leave you to your house and then taking her I reached to
Shalimar Bagh. The house of my sister (in laws). At that time
except accd. Sonia all the accd. were present in their house
(Arti‟s in-laws house). Rajinder said if I had brought the
money? I said to him that ahead a sluggish business at that time
and I had already told you that I would arrange for the money.
As far as the money is arranged I will give to you. On this,
Deepak said that Arti was digging well for herself. And after
making many emplorements I came leaving my sister in their
house (Arti‟s in laws)."
64. To rebut the above evidence, learned counsel for the appellants has
relied upon the cross-examination of PW1 Dalip Kumar Srivastava
whereby he stated as „It is correct that at the time of my sister‟s
marriage, the accused party had a good business and they are
financially sound. It is correct that they had two shops, one in Model
Town and the other in Kingsway Camp. It is correct that both the
shops were in existence before the marriage of my sister and they were
nicely established.‟
65. In the case of Rajinder Singh vs. State of Punjab reported at (2015) 6
SCC 477, a three-Judge bench of the Hon‟ble Supreme Court noted
down as to what would fall within the term "dowry". Relevant para 20
reads as under:
"20. Given that the statute with which we are dealing must be
given a fair, pragmatic, and common sense interpretation so as
to fulfill the object sought to be achieved by Parliament, we feel
that the judgment in Appasaheb case (2007) 9 SCC721 followed
by the judgment of Vipin Jaiswal (2013) 3 SCC 684 do not state
the law correctly. We, therefore, declare that any money or
property or valuable security demanded by any of the persons
mentioned in Section 2 of the Dowry Prohibition Act, at or
before or at any time after the marriage which is reasonably
connected to the death of a married woman, would necessarily
be in connection with or in relation to the marriage unless, the
facts of a given case clearly and unequivocally point
otherwise."
(Emphasis Supplied)
66. The examination-in-chief of PW1, which has been extracted
hereinabove, would fairly show that soon before the death of deceased
Aarti on 23.02.1998, the appellant Rajinder (father-in-law), Jitender
(brother-in-law) and Deepak (husband) had come to the house of PW1
(brother of the deceased) and a demand of Rs.2 lakh was made. PW1
had then informed the father-in-law that he was not in a position to
pay the said amount and sought time to make arrangement. Further
reading of the evidence show that such was the intensity of the
demand that PW1 was informed that if the money was not paid within
one month, Aarti should be kept back at her parental home. While
threatening PW1 that there was no scarcity of girls and they would be
able to get Rs.10 lakh after remarrying their son, they left the house of
PW1. In continuation of the demand, again on 29.05.1998, the
deceased and her husband came to the house of PW1 and left Aarti to
the parental home and sought a reply by the evening. His sister had
informed him that her husband had told her that if she did not get Rs.2
lakh, she need not go home with him. When the appellant Deepak
came in the evening and on PW1‟s refusal to part with the money, he
abused PW1 and told him to keep his sister. A careful analysis of the
testimony of PW1, which in our view is truthful and reliab le and
corroborated by the fact that the demands were made even in the past
and in fact, succumbing to the demand, Rs.50,000/- were paid in three
installments, we are of the view that the learned Trial Court had
rightly convicted the appellant Rajinder and Deepak under Section
304-B of IPC. As far as the appellant Jitender is concerned, we find
that an attempt has been made to rope-in all the family members under
Section 304-B IPC. Although the appellant Jitender has also been
named but keeping in view the cross-examination of PW9, which we
have extracted in para 64 above, we find this part of the testimony of
PW1 to be unreliable.
67. Taking into consideration the law discussed in aforegoing para, and
for the reasons mentioned above, Criminal Appeal No. 85 of 2004
preferred by Deepak Srivastava is dismissed. Criminal Appeal No. 36
of 2004 filed by Poonam Srivastava is partly allowed and her
conviction under Section 498A of IPC is maintained and is sentenced
to the period already undergone by her which as per nominal roll is
about 10 months. Criminal Appeal 68 of 2004 includes three
appellants out of which the conviction and the sentence of the
appellant Rajender Srivastava is maintained under Sections 304B,
498A and 406 of the IPC as held by the Trial Court. The conviction of
the appellants Jitender Srivastava and Veena Srivastava under Section
498A of the IPC is maintained and are sentenced to the period already
undergone by them i.e. 4 years 2 months 10 days and 2 years 25 days
(respectively). In our view, the period already undergone by the
appellants Poonam Srivastav, Jitender Srivastava and Veena
Srivastava (as under-trial and after conviction) would meet the ends of
justice. The fine imposed upon the appellants and the default sentence
awarded to them shall remain unaltered.
68. The record shows that the appellants Deepak Srivastava and Rajinder
Srivastava are on bail, they both shall serve the sentence as imposed
by the learned Trial Court and surrender before the Central Jail, Tihar
within three weeks from today. Both shall be taken into custody to
serve out the remaining sentence.
69. The appeals are disposed of in the aforestated terms.
70. The copy of this judgment be sent to the Superintendent Jail.
71. Trial Court record be sent back.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
AUGUST 30 , 2017
//
