Rajesh Kr. Jain vs State
2017 Latest Caselaw 986 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment delivered on : February 20th, 2017

+   CRL.A. No.570/2000

    RAJESH KR. JAIN                                          ..... Appellant
                           Through       Mr.Dayan Krishnan, Sr. Adv. with
                                         Mr.Vivek Sharma, Adv. & Mr.Neeraj
                                         K. Sharma, Adv.

                                versus

    STATE                                                  ..... Respondent
                           Through:      Mr.Panna Lal Sharma, APP for the
                                         State with SI Mahesh Chand, PS
                                         Lajpat Nagar.
                                         Mr. V.K. Malik, Adv. with Mr.Rahul
                                         Raj Malik, Adv. for the complainant.


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

                                     JUDGMENT

P.S.TEJI, J.

1. Aggrieved by the judgment of conviction dated 16.08.2000 passed by the learned Additional Sessions Judge, Delhi convicting the appellant-Rajesh Kumar Jain for the offence punishable under Section 498A/304-B of the Indian Penal Code (hereinafter referred to as I.P.C.) and order on sentence dated 18.08.2000, whereby the appellant has been sentenced to undergo rigorous imprisonment for ten years for the offence under Section 304-B IPC and rigorous imprisonment for a

period of three years and fine of Rs.3,000/- for the offence under Section 498A IPC and in default of payment of fine the appellant was to further undergo simple imprisonment for a period of three months, the present appeal has been filed by the appellant.

2. Factual matrix emerging from the record is that the present case was registered on the basis of the statement of Dr.P.K. Jain, father of the deceased. In his statement made to the SDM, Dr.P.K. Jain had stated that his daughter Sunita was going to become a doctor. Marriage between Sunita and accused Rajesh Kumar Jain was solemnized on 02.05.1993 and on 29.06.1993, Sunita died. It was alleged that death of the deceased was not an accidental death but was a murder. It was further alleged that the father of the deceased got suspicious about the death of his daughter on seeing her dead body and thus he insisted on post mortem of the dead body. After post mortem, the cause of death of deceased was given as asphyxia resulting from manual smothering and strangulation. It was also alleged that the engagement between the deceased and accused was performed on 10.11.1992 and thereafter accused complained to the complainant and to his deceased daughter that the ring given to him and gold chain given to his mother were of light weight. On 27.04.1993, during Teeka ceremony, the complainant gave Rs.51,000/- cash to the accused, one gold chain and ring besides clothes to him and his family members. On 28.04.1993, the accused had made a telephonic call and demanded from the son of the complainant a Hero Honda motorcycle and VCR. Next day, the

complainant telephoned the accused and informed that he would be unable to give the motorcycle and VCR demanded and that they had already purchased gold jewellery and his budget had been exhausted. It was further alleged that when Sunil, brother of the deceased Sunita went to bring her, he found her sad and on asking her about the same he was informed that the accused complained to her many times about the dowry given being inadequate and of sub-standard. On 07.05.1993, Sunil brought Sunita to Bhopal and accused also accompanied them and at that time, accused was made to understand and he assured that he would not harass Sunita in the future. Thereafter, on one occasion Sunita was admitted in Mool Chand Hospital, New Delhi and during conversation, she informed her father that accused used to treat her inhumanly. On 29.06.1993, some friend of accused rang up the father of the deceased and informed about Sunita's death. When complainant made a telephonic call to the hospital, he was asked to come to Delhi. On 30.06.1993, complainant along with his wife and son Anil reached Delhi at Mool Chand Hospital, where he was told that Sunita died as a result of electric shock, whereas uncle of accused told him that Sunita had died due to a sudden fall caused by weakness. When complainant went inside the room of Sunita, he noticed a big spot of blood on the floor. When complainant insisted on seeing the dead body of Sunita, he was asked by the accused and his uncle to first go to the police station and make a statement that there was no dispute between the parties and that he did not wish to get the post mortem on the dead body. Thereafter, on seeing the dead body of Sunita, the complainant noticed that her face

was swollen, there were injury marks and blood and froth were coming out from her nose. The complainant subsequently wrote a letter to SDM that his daughter had been murdered.

3. On the basis of statement made by the complainant before the SDM, the SDM directed the registration of a case under Section 498- A/302 IPC against the accused. On the basis of the same, FIR No.238/1993 under Sections 498-A/302 IPC was registered. Accused/ appellant was arrested on 16.07.1993. After completion of investigation, charge sheet was filed under Section 498A/302/304-B IPC.

4. The learned trial court framed the charge under Section 498A/304-B of the IPC to which the accused/appellant pleaded not guilty. In support of its case, prosecution examined twenty witnesses.

5. After conclusion of prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C. in which he denied the entire case of prosecution and claimed innocence. No evidence in defence was adduced by the accused/appellant.

6. 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 appellant was suspended vide order dated 10.10.2000.

7. Argument advanced by the learned Senior Counsel for the appellant is that there was no evidence to show that there was any

demand of dowry by the appellant. Before the death of the deceased, neither the deceased nor any of her family member ever made any complaint to any authority with regard to harassment or cruelty meted out to the deceased on account of demand of dowry. The letters written by the deceased were placed on record which showed that the deceased was never subjected to any harassment or cruelty on account of demand of dowry. It is further submitted that the appellant has been wrongly convicted on the presumption that the deceased was subjected to harassment soon before her death. At the time of death of deceased, the appellant was present in the operation theatre, so there is no possibility that the appellant had caused the death of the deceased. He further submitted that the blood found at the spot was of a different blood group than that of the appellant or deceased and the semen stains of AB group found on the sanitary pad of the deceased suggests intrusion by a third person and the said fact has not been investigated.

8. On the other hand, argument advanced by the learned APP for the State is that there is sufficient evidence on record in the form of testimony of father and other relatives of deceased to hold the appellant guilty. There is enough material on record that the deceased was harassed on account of demand of dowry and there is also sufficient evidence to prove that she was subjected to harassment on account of demand of dowry soon before her death. All the ingredients of dowry death have been duly proved by the prosecution before the trial court and the appellant has rightly been convicted.

9. Argument advanced by the learned counsel for the complainant

is that the present case was registered after facing many hardships by the complainant. The investigating officer of the case was not ready to record the voluntary statement of the complainant. On regaining the full mental status after seeing the dead body of his daughter, the complainant made his statement to the SDM in which he had stated that he was suspicious about the nature of death of his daughter. The post mortem report also suggests that the deceased died a homicidal death. It was further submitted that the present case is a murder case but the trial court has awarded the punishment to the appellant under dowry death. There is sufficient material on record to hold the appellant guilty.

10. Arguments advanced by the learned Senior Counsel for the appellant, learned APP for the State and learned counsel for the complainant were heard. I have gone through their submissions and meticulously perused the material available on record.

11. From the material placed on record, it is apparent that the complainant had been making applications to get the case registered under the relevant sections of the Code. It has come forth in the statement of the complainant that after the receipt of information about the death of his daughter when he reached Delhi, he was prevented from voluntarily making any complaint to the police by the appellant and his uncle (chacha). He has also stated that initially he was told by the appellant that his daughter had died as a result of an electric shock but the uncle of the appellant stated that the deceased died due to a sudden fall caused by weakness. When the complainant wished to see

the dead body of his deceased daughter, he was prevented from doing so and asked by the appellant and his uncle first, to make a statement to the police to the effect that he had no suspicion about the nature of death of Sunita and that he did not wish to get the post mortem conducted. But, on seeing the dead body of his daughter, he noticed that her face was swollen, there were injury marks and blood and froth were coming out from her nose. Thereafter, the complainant wrote a letter to the SDM raising suspicion about the nature of death of his daughter and that she might have been murdered.

12. In his statement made to the SDM, it is apparent that the complainant, apart from the allegations of harassment and cruelty meted out to the deceased on account of demand of dowry, also raised suspicion about the nature of death of his daughter and insisted on conducting post mortem on her dead body.

13. The post mortem report of the deceased shows that there were several ante mortem injuries on different parts of the body i.e. face, below the eye lid, upper lip, below the nose, teeth indentation marks, cheek, neck, elbow, knees and arm. The post mortem report further shows that the cause of death of the deceased was asphyxia resulting from manual smothering and strangulation. It was also observed by the doctor that all the injuries on the person of the deceased were ante mortem in nature and recent in duration.

14. From the statement of the complainant, it is apparent that he had noticed some unusual features on the dead body of his deceased

daughter due to which he raised a suspicion about the nature of her death. In the letter written by him to the SDM, he also raised the same suspicion and asked for conducting post mortem on the dead body of his deceased daughter. The post mortem report of the deceased also shows that there were several injuries on the person of the deceased and the cause of her death was asphyxia due to manual smothering and strangulation.

15. The above circumstances brought on record clearly show that there is suspicion about the nature of death of the deceased. As per the post mortem report of the deceased, it was a homicidal death and not a natural death or death caused by suicide. As mentioned in the post mortem report, deceased died due to manual smothering and strangulation which cannot be said to be a natural death or an act of suicide. Manual smothering and strangulation have to be done by some person other than the deceased.

16. Hon'ble Apex Court in the case of Satya Narayan Tiwari v. State of U.P. (2010) 13 SCC 689 has observed :

"Crimes against women are not ordinary crimes committed in a fit of anger or for property. They are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialization of our society, and lust for

money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand."

17. Further, in the case of Rajbir @ Raju and Anr. v. State of Haryana AIR 2011 SC 568, the Hon'ble Apex Court has directed all trial Courts to ordinarily add Section 302 to the charge of Section 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women.

18. Keeping in view the above mentioned facts and circumstances and the law laid down by Hon'ble Apex Court, this Court is of the considered opinion that this is a fit case where an alternate charge under Section 302 IPC in addition to charge under Section 304-B IPC is prima facie made out.

19. In view of the above discussion, the judgment of conviction dated 16.08.2000 and the order on sentence dated 18.08.2000 passed in the present case are set aside. The matter is remanded back to the trial court concerned with the direction to frame an alternate charge under Section 302 IPC in addition to charge under Section 304B IPC and to pass the judgment afresh.

20. Before parting with the order, this Court would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this order has been so said only for the purpose of disposing of the present appeal. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of

fact or law arising for decision in the case which shall naturally have to be done by the Trial Court.

21. With the above observations, the present appeal stands disposed of.

(P.S.TEJI) JUDGE FEBRUARY 20, 2017/dd