Smt. Sunita & Anr. vs State & Ors.
2019 Latest Caselaw 315 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI
                             Judgment reserved on: 6th December, 2018
                        Judgment pronouncement on: 17th January, 2019

+      CRL. L. P. 566/2018
       SMT. SUNITA & ANR.                           .... Petitioners
                   Through : Ms. Mallika Parmar, Advocate.

                                       Versus
       STATE & ORS.                                         ....Respondents.

Through : Ms. Radhika Kolluru, APP for the State with SI Manoj Kumar, PS Rajouri Garden.

CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDUL HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL SANGITA DHINGRA SEHGAL, J CRL. L. P. 566/2018

1. In view of the decision of the Hon'ble Supreme Court of India in Mallikarjun Kodagali (Dead), represented through Legal Representatives vs. State of Karnataka & Ors., reported at 2018 (14) SCALE 32, the victim is no longer required to apply for leave to appeal against the order of acquittal.

Consequently, the present criminal leave to appeal is allowed. The matter is directed to be registered as a Criminal Appeal.

CRL.A. /2019 (To be numbered)

1. By this appeal under Section 372 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C'), the Appellants have assailed the impugned judgment dated 06.08.2018 passed by the learned

Smt. Sunita & Anr Vs. State & Ors.

Additional Sessions Judge (ASJ), Pilot Court, Tis Hazari Courts, in Sessions Case No. 57795/2016 whereby the respondents 2 to 5 were acquitted of the charges under Section 498A/304B/34 of the Indian Penal Code, 1860 (hereinafter referred to 'IPC').

2. Brief facts of the case as noted by the learned Trial Court is as under:

"2. As per the prosecution story, on 21.05.2014, on receipt of DD No. 33A, Assistant Sub Inspector (ASI) Abhinandan alongwith Constable (Ct.) Satender reached at the place of incident i.e. F-89, 25 Sq. yard, Raghubir Nagar, New Delhi where on the top floor of the said house, Anjali wife of Rohit was found hanging to the ceiling fan using a saree. SHO as well as the Executive Magistrate concerned was informed. The mobile crime team was called and the spot was got photographed. SDM, Rajouri Garden recorded the statement of Smt. Sunita, mother of the deceased.

3. As per the statement of complainant Smt. Sunita, her daughter Anjali (deceased) was married to Rohit son of Ramesh Kumar resident of F-89, 25 Sq. yard, Raghubir Nagar, New Delhi on 13 November, 2013. After 10-12 days of marriage, when Anjali (deceased) had come to her parental home, she told her mother that her husband Rohit, father-in-law namely Ramesh Kumar, mother-in-law namely Shashi, sister-in-law namely Monika and brother-in-law namely Amit used to harass her for dowry and had demanded a car. Deceased also told that her mother-in-law used to instigate Rohit (her husband) to beat her so that she would bring dowry. The parents-in-law of deceased used to keep her hungry and even did not allow her to talk to her husband. However, at that time complainant made the deceased understand and advised her to adjust in her matrimonial house. Complainant further stated that three months prior to the incident when she alongwith her husband had gone to the matrimonial house of the deceased, the in-laws of deceased did not allow them to talk to deceased and also insulted them. On 19.05.2014, deceased had again come to her parental home. On 20.05.2014, when her husband Rohit came to take her back, she refused to go back saying that her in-laws would kill her. Further, on 21.05.2014 at about 6.30 p.m, father of deceased received a telephone call from father-in-law of deceased who asked him to come to his house immediately. On reaching the

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matrimonial home of the deceased, complainant and her husband found her hanging to the ceiling fan in her room.

4. On the statement of the complainant, FIR under Section 498A/304B/34 IPC was registered against all the accused persons. Exhibits were lifted from the spot and the dead body was shifted to DDU hospital for postmortem examination. Further investigation of the case was handed over to Inspector Suman Kumar Sharma, Investigating Officer (I.O) of the case..."

3. After investigation was over, charge-sheet against the accused persons was filed before the Court for the offence punishable under Section 498A/304B/34 of the IPC and charge was framed against the accused persons for the said offence. To substantiate their accusation, prosecution examined twenty-six witnesses in all to prove its case. Statement of accused persons under Section 313 of Cr.P.C was recorded wherein they pleaded their innocence and claimed to be tried.

4. The learned Trial Court, upon analysis, examination, and evaluation of the prosecution evidence and after considering the rival submissions recorded acquittal against Respondents 2 to 5 for the charged offences.

5. Aggrieved by the impugned judgment, Ms. Sunita, mother of the deceased, has filed the present appeal. Ms. Mallika Parmar, learned counsel appearing on behalf of the appellant contended that the view and the ultimate conclusion recorded by the learned Trial Court in acquitting the accused persons for the offence punishable under Section 498A/304B/34 of the IPC is manifestly perverse, unsustainable, tainted with non-application of mind to vital evidence, a result of wrong interpretation of evidence of the parents of the deceased and other substantial evidences, which has resulted into

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miscarriage of justice. Ms. Parmar, learned counsel for the appellant further contended that the parents of the deceased have not faltered from their testimony regarding the harassment and ill-treatment of their daughter in her matrimonial home and that there are no substantial improvements in their testimonies. She also submits that the deceased regularly faced dowry demands from her in-laws for a bigger vehicle, which led her to commit suicide, which has become evident from the testimonies of PW-1 (father of the deceased), PW-2 (mother of the deceased) and PW-11(sister of the deceased). The learned counsel further contended that the learned Trial Court failed to take notice of the suicide note in right the perspective, which clearly establishes the guilt of the accused persons. Ms. Parmar also laid emphasis on the fact that the deceased, Anjali, committed suicide within 6 months of her marriage so strict view has to be taken. Learned counsel further contended that the Trial Court has erred in holding that no proof of dowry has been proved by the prosecution, as DW-2 (the mediator) on the basis of photographs of the marriage admitted during his cross examination that dowry articles were given to the Respondents family.

6. Per contra, the learned counsel of the State adopted the arguments made by counsel for the appellant and placed reliance on the suicide note found from the possession of the deceased.

7. Despite opportunity none chose to appear on behalf of the Respondents.

8. We heard the learned counsel for the parties and perused the entire material available on record.

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9. Before considering the case of the appellant, it is desirable to extract the relevant provisions of Section 304B which relates to dowry death:

304B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death. Explanation.-For the purpose of this Sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

10. In order to convict an accused for the offence punishable under Section 304B Indian Penal Code, the following essentials must be satisfied:

(i) the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

(ii) such death must have occurred within seven years of her marriage;

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(iii) soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relatives of her husband;

(iv) such cruelty or harassment must be for, or in connection with, demand for dowry.

11. When the above ingredients are established by reliable and acceptable evidence, such death shall be called dowry death and such husband or his relatives shall be deemed to have caused her death. If the abovementioned ingredients are attracted in view of the special provision, the court shall presume and it shall record such fact as proved unless and until it is disproved by the accused. However, it is open to the accused to adduce such evidence for disproving such conclusive presumption as the burden is unmistakably on him to do so and he can discharge such burden by getting an answer through cross- examination of the prosecution witnesses or by adducing evidence on the defence side.

12. Section 113B of the Evidence Act, 1872 speaks about presumption as to dowry death which reads as under:

113-B. Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

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Explanation.-For the purposes of this section, 'dowry death' shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).

13. As stated earlier, the prosecution Under Section 304B Indian Penal Code cannot escape from the burden of proof that the harassment or cruelty was related to the demand for dowry and such was caused "soon before her death". In view of the Explanation to the said section, the word "dowry" has to be understood as defined in Section 2 of the Dowry Prohibition Act, 1961 which reads as under:

2. Definition of 'dowry'.- In this Act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

14. To attract the provisions of Section 304B, one of the main ingredients of the offence which is required to be established is that "soon before her death" she was subjected to cruelty or harassment "for, or in connection with the demand for dowry". The expression "soon before her death" used in Section 304B Indian Penal Code and Section 113B of the Evidence Act is present with the idea of proximity test.

15. In order to appreciate the contention of learned counsel for the Appellant, two issues emerge before us, (i) whether the deceased was subjected to harassment and ill treatment in her matrimonial home

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soon before her death and; (ii) whether the accused persons can be convicted solely on the basis of testimonies of the prosecution witnesses. With these principles in mind, let us analyse the evidence led by the prosecution.

16. At this stage we deem it appropriate to visit the testimonies of the parents of the deceased i.e. PW-1(father of the deceased), PW- 2(mother of the deceased) and PW-11(sister of the deceased). PW-1 (father of the deceased) during his examination in chief deposed as under:-

"Deceased Anjali was my daughter. On 13.11.2013 she was married with Rohit present in the court today (correctly identified by the witness). I had given the dowry articles in the marriage of my daughter as per my capacity and status. After about 10-12 days of marriage my daughter Anjali came to my house and at that time she was very much upset. My wife asked my daughter in my presence as to why she is upset and on this my daughter started weeping and said that her mother-in- law, father-in-law, brother-in-law (dewar) all are present in the court today used to harass her and ask continuously demand for sarees and big vehicle. I am a sugar patient. I was not having financial condition to be able to give them the big vehicle. My daughter had also told us that mother-in-law also instigates her husband to beat her and to beat her and only then her parents will give big vehicle. Mother-in-law, sister-in-law Monika, brother-in-law Amit used to harass her for not bringing the big vehicle and taunt her that motorcycle will not serve the purpose. We somehow make our daughter understand our position and send her to her matrimonial home.

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"...on 20.05.2014 Rohit came to take Anjali back to matrimonial home. At that time also my daughter was upset and she started weeping in the presence of me and my wife. She said that she does not want to go to her matrimonial home. She also stated that she would be killed by her in laws. I and my wife talked with her and told her "BETA AAPKE PAPER AANE WALE HAIN AUR APKI TUITION BHI WAHIN LAGI HUI HAI, AUR NAYA TEACHER LAGAINGE TAU BAAT NAHI BANEGI" we also told her that after her exams will be over on 07th June 2014 we will come alongwith 10-12 persons. Thereafter, my daughter went to her matrimonial home with Rohit.

"... She told me that "papa you have sent me here", they are harassing me. Not given food since morning and not even allowed to meet her husband. She was also asked to have "Parda" (ghoonghat) from her husband. My daughter also told me that her mother-in-law had taken out the pesticides used for killing pests and she had to go downstairs. In the meanwhile my wife took the phone from me and started talking with Anjali. Anjali while weeping told my wife, "MUMMY APNE MUJHE YAHAN BHEJ KAR ACCHA NAHI KIYA YEH LOG MUJHE MAR DENGE"... "

17. PW-2 (mother of the deceased), during her examination in chief deposed as under:-

"...my daughter Anjali was married on 13.11.2013 with accused Rohit. I had given dowry articles to my daughter Anjali which was more than sufficient and the marriage had taken place more than our financial capacity. After 10-12 days marriage when Anjali came to my house she was very sad. When I asked her repeatedly she started

Smt. Sunita & Anr Vs. State & Ors.

crying and told me that her mother in law, father in law, sister in law and brother in law were harassing her for dowry, and instigating her husband to give her beatings only then she will bring big vehicle. My daughter told me that her husband makes a demand of big vehicle. She told me she had stated to her husband that her father is not in a possession to give big vehicle and is already under loan. She told me that on her refusal to ask her father to bring a car she was beaten by her parents in law, brother in law (dewar), sister in law (nanad) and her husband. She told me she was not provided food continuously for two days and also stating "nahi khaegi to mar nahi jaegi". Whenever she used to visit her parental home her mother in law asked her to bring good sarees as according to her not given to marriage..." "...Anjali told me that her mother in law had asked her to bring new and costly sarees and boxes of sweets so I gave her sarees and boxes of sweets..."

18. Testimony of PW-11(sister of the deceased), during her examination in chief deposed as under:-

"...it is correct that one Innova car was used by the family of Rohit at the time of marriage in which doli was departed. As per my knowledge the said car belongs to Rohit. It is correct that Rohit and my sister had gone to Kerala after marriage. I do not know who had incurred the expenses of the said trip, however, I had not given any money to my sister for the same..."

"...It is correct that Anjali was pursuing B.com and was also taking private tuition classes for the same. It is incorrect to suggest that tuition fees used to be paid by Rohit only. Vol. The same was being paid by my father. I

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do not know what was the tuition fees, however the same was paid by my father in my presence..."

"...I, my parents, uncle, aunt, nana, nani, cousins, bua, fufa and Rohit, Anjali had gone to Haridwar in the month of April, 20`4. In that trip, Rohit did not speak to any one of us. I never spoke to Rohit about any ongoing issues even in that trip and my parents also did not speak with Rohit about any issues during that trip to Haridwar. I do not know whether my parents were ever called by police officials of PS Khyala regarding any complaint filed from the side of Rohit's family against our family. It is correct that Anjali had been taken to hospital for her treatment by the inlaws of Anjali. Vol. She had not been given food and i.e. why she has been taken to hospital. It is incorrect to suggest that it was brought to the notice of our family through Ladli Pershad that Anjali was suffering from mental illness and the same was objected by the accused persons as it had not been disclosed to them at the time of marriage..."

19. From the perusal of the above testimonies we find that PW-1 (father of the deceased) deposed that he had given dowry articles in the marriage of his daughter. He further deposed that his daughter informed her mother that 'her mother-in-law father-in-law, brother-in-law (dewar) all used to harass her and ask continuously demand for sarees and big vehicle". PW-2 (mother of the deceased) also deposed that they had given dowry articles in the marriage and the deceased informed that she was subject to beatings by the accused persons on demand of car and other items. Apart from verbal assertions nothing on record suggests that the deceased was subject to beatings and cruelty by her in-laws. The demand of car by the accused persons has not been

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established by the prosecution. No complaint has been registered by the victim or the complainants before any authority. Nothing on record suggests that soon before death the deceased was subjected to cruelty. Calls made by the deceased to her mother have also not been proved. Moreover, in the month of April, PW-1 and PW-2 accompanied the deceased along with her husband to Haridwar with family which gives an impression of cordial relations between the parties.

20. Dr. B.N. Mishra, Medical Officer-cum-Medico Legal Expert in Criminologist, Department of Forensic Medicine, DDU Hospital, Delhi who conducted the post mortem on the body of the deceased, was examined as PW-10, who deposed that the cause of death was due to asphyxia as a result of ligature hanging and the death was a suicide. No external injuries or internal injuries were opined by the examining doctor and the death was declared as a suicidal death. Relevant portion of the statement of PW-10 is as under:-

"On examination of the body, I had observed the ligature marks on the neck of the deceased associated with internal findings and same was consistent for suicidal hanging. After completion of post-mortem examination, I had opined that cause of death was due to asphyxia as a result of ligature hanging. The manner of death was suicide."

21. The medical record of the deceased also does not suggest that the deceased was subjected to physical cruelty and torture soon before death. The testimonies of PW-1 (father of the deceased) and PW-2 (mother of the deceased) wherein they claimed physical beatings and

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torture on their deceased daughter by the respondents also got negated by the report of the medical experts.

22. Ms. Mallika Parmar, learned counsel for the Appellant laboured hard on the suicide note left by the deceased, to prove cruelty and harassment on the deceased at the hands of the accused persons. In this context, we deem it appropriate to reproduce the suicide note left behind by the deceased, Anjali, which reads as under:

"I am going to commit suicide. I am not happy with my marriage. Im being given more mental stress here what I cannot bear, from the last 10 months I have been suffered from this mental stress. Behind this is my mother-in-law, father-in-law, my sister-in-law. I do not want to live anymore. They have killed me from inside. I very much love my mother, father, brother, sister and the entire family. You all please forgive me. I did not see any way other than this, so I forced to take this step."

23. Records reveal that PW-20, Ms. Sarita Sharma, Scientific Assistant, RFSL, Chankyapuri, confirmed that the author of mark A-1 to A-23 (handwriting of the deceased on diary) and suicide note (Ex.PW- 18/P1) are same, but failed to form an opinion about the signatures on the suicide note (Ex.PW-18/P1) as no specimen signatures were provided for comparisons. As such the report of PW-20 was inclusive. Moreover, the recovery of suicide note was doubtful as PW-18 (ASI Abhinandan) and PW-19 (Insp. Suman Kr. Sharma, IO) gave contradictory statements with regard to place from the suicide note of the deceased was recovered. Lastly, the testimony of Dr. Anuj Mittal (DW-1) cannot be lost sight of, wherein it has come on record that the

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deceased was suffering from depression, relevant portion of which is reproduced below:

"Smt. Anjali, W/o Rohit Kumar, R/o Raghubeer Nagar, New Delhi has been examined by me on 27.02.2014. Her OPD card registration no. 201120 is Ex.DW1/A and the same is in my handwriting and bears my signatures at point A. It is correct that she was suffering from depression from last about two and a half years and she had suicidal ideation as mentioned in her OPD card Ex.DW1/A at portion B. I had again examined the patient Anjali on 13.03.2014 by me and prescribed the medicines for depression as mentioned in the OPD card at portion C which also bears my signature at point D. It is correct that as per the illness she was suffering from, the patient was at the risk of committing suicide."

"...I had written the brief history of the patient at point B. It is wrong to suggest that the portion B was later on inserted on Ex.DW1/A. Vol. In order to save the paper, the history was given at the side of the prescription and not beneath the date. I had written the brief history on the basis of history given by the patient that she was suffering from depression for the last two and a half years. As per the history given by the patient, sadness had started from last about two and a half years..."

24. It is also an accepted fact that the death occurred in unnatural circumstances. However, there has been no explicit demand for dowry from the Respondents, all the statements made by the prosecution witnesses are general statements indicating nothing concrete. Relevance, if given, to the suicide note depicts mental stress to the deceased, which could be caused due to normal wear and tear of her married life. From the evidences and facts that have been brought to

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our notice, it is apparent that no cruelty was faced by her soon before her death. On careful analysis of the prosecution evidence and documents on record, the Respondents cannot be held guilty for committing an offence punishable under Sections 498A/304B/34 IPC.

25. It is a cardinal principle of criminal jurisprudence that the prosecution is supposed to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Similarly, it is established principle that the prosecution is supposed to stand on its own legs and cannot derive benefits whatsoever from the weakness, if any, in the defence of accused. The burden of proof of the version of prosecution in criminal trial, throughout trial lies upon prosecution and never shifts to accused who is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt entitles him to acquittal.

26. It is a settled law that while deciding an appeal filed by the complainant, in case two views are possible, the High Court must not grant leave, if the Trial Court has taken one of the plausible views, in contrast thereto in an appeal filed against acquittal. Upon re-appraisal of evidence and relevant material placed on record, in case the High Court reaches a conclusion that another view can reasonably be taken, then the view, which favours the accused, should be adopted unless the High Court arrives at a definite conclusion that the findings recorded by the Trial Court are perverse, the High Court would not substitute its own views on a totally different perspective.

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27. In the case of State of Madhya Pradesh v. Dal Singh & Ors., reported at 2013 (8) SC 625, the Hon'ble Supreme Court has held that the appellate court while considering the appeal against the judgment of acquittal shall interfere only when there are compelling and substantial reasons for doing so and if the judgment is unreasonable and relevant materials have been unjustifiably ignored, it would be a compelling reason for interference.

28. While deciding the present appeal, the aforestated principles culled out by the Apex Court are to be kept in view. In the present case from the evidence which has emerged on record, we conclude that the learned Trial Court rightly observed that the prosecution failed to prove its case against the respondent beyond reasonable doubt, the appellant has not been able to make a case against the acquittal of the respondents.

29. In totality of the facts and circumstances, we do not find any infirmity in the impugned judgment. Accordingly, no grounds are made out to interfere in the impugned judgment passed by learned Trial Court and the appeal is dismissed.

SANGITA DHINGRA SEHGAL, J

SIDDHARTH MRIDUL, J

JANUARY 17, 2019 SU

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