Delhi High Court
State vs Sh Jitender @ Jeetu & Anr. on 22 December, 2023
Author: Suresh Kumar Kait
Bench: Suresh Kumar Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: November 07, 2023
Judgment pronounced on: December 22, 2023
+ CRL. L.P. 592/2022 and CRL.M.A. 26903/2022
STATE ..... Appellant
Through: Mr. Pradeep Gahalot, Adv.
versus
JITENDER @ JEETU & ANR. ..... Respondents
Through: Mr. Hirein Sharma & Mr. Ajay
Rajbhar, Advs.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
HON'BLE MS. JUSTICE SHALINDER KAUR
J UD G M E N T
SHALINDER KAUR, J
1. The present criminal leave petition under Section 378 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "CrPC") has been filed
by the State seeking leave to Appeal against the impugned judgment dated
30.10.2019 passed by learned Additional Sessions Judge-05, West, Tis
Hazari Courts, New Delhi (hereinafter referred to as „learned ASJ‟) in the
case no. 56529/2016 arising out of FIR No. 93/2013, under section
498A/304B/302/34 of the Indian Penal Code, 1860 (hereinafter referred as
„IPC‟), registered at Police Station Nangloi whereby both the respondents
were acquitted for the offences under Section 304B/302/34 of the Indian
Penal Code but convicted for the offence punishable under Section 498A
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read with Section 34 IPC. The order of conviction has attained finality as
respondents did not prefer any appeal against their aforesaid conviction.
2. Vide order dated 31.10.2019, the learned ASJ, was pleased to award
both convicts, sentence of Rigorous Imprisonment for two and a half years
(2½) years each for the offence punishable under Section 498A IPC read
with section 34 IPC. Further, a fine of Rs. 1,00,000/- each was also imposed
upon the convicts out of which a sum of Rs. 1,50,000/- was to be paid to the
father of the deceased under Section 357(1)(b) of Cr.P.C. In default of
payment of fine, both the convicts would further undergo Rigorous
Imprisonment for 5 months.
Factual background
3. The prosecution case as projected during trial is that an FIR No.
93/2013 was registered at police station Nangloi on 26.03.2013 for the
offences punishable under Sections 498A/302/304B/406/34 IPC on the
complaint of Hargyan, father of deceased Parvesh.
4. It is alleged that on 25.03.2013 at about 11:00 PM, youngest son of
the complainant, Hargyan received a call regarding death of his daughter
Parvesh due to heart attack. Complainant alongwith his elder son and few
persons from the village rushed to the house of Parvesh and found that his
daughter was lying on the floor. On inquiry, his son-in-law Jeetu told him
that Parvesh was unconscious and that she has hung herself. Complainant
raised suspicion that Jeetu and his mother namely Parvati had killed
Parvesh. Thereafter, on 26.03.2013, vide DD No. 6A information was
received at police station Nangloi and ASI Rajender Singh along with
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Constable Biney reached the spot. Since the deceased had committed
suicide within seven years of her marriage, proceedings were initiated by
concerned SDM, who deputed Mr. J.C. Sehgal, Tehsildar in whose presence
statement of complainant Hargyan, father of the deceased Parvesh was
recorded to the effect that deceased was the youngest of his seven children
and was married to Jeetu s/o Ramdev about 3½ years ago. Complainant
further stated that both Jeetu and Parvati used to beat the deceased and many
times used to leave her at her parental house after beating her. Complainant
also stated that he had given articles like TV, cooler, fridge, almirah, sofa,
ring, chain, jhumka, kundal, earrings and a motorcycle besides cash amount
of Rs. 11,200/- in the marriage of his daughter according to his capacity.
The FIR was accordingly registered on 26.03.2013. The investigation of the
case was conducted by Inspector Dhiraj Kumar. He prepared the site plan,
obtained the post-mortem report and the report of viscera from CFSL.
Accused Jitender @ Jeetu was arrested on the same day whereas accused
Parvati was arrested on 18.04.2013.
5. On completion of the investigation, the charge-sheet for the offences
punishable u/s 498A/304B/406/302/34 IPC was filed. At the trial, the
learned ASJ framed charges against both the respondents for the offences
under Sections 498A/304B/302/34 IPC on 26.08.2013. Both the respondents
pleaded not guilty and claimed trial.
6. In order to further its version, the prosecution examined 18 witnesses.
As noticed above, Hargyan Singh (PW3) was the complainant, he deposed
that deceased Parvesh was his youngest daughter, who got married to
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accused / respondent Jitender @ Jeetu on 01.12.2009. Jitender @ Jeetu and
in-laws of deceased Parvesh used to beat the deceased over dowry demand
and harassed her. Many times, they used to leave her at her parental house
after beating her. He further stated that he paid various amounts to the in-
laws of her deceased daughter on different occasions. PW3 further deposed
that he received a phone call at about 11:00 PM on 25.03.2013 from accused
Jeetu who informed him about his daughter Parvesh, having expired where-
after the witness, along with his two sons, reached the matrimonial house of
his daughter and saw her dead body lying on the floor. The accused persons
did not inform them anything and resultantly, police was called.
Subsequently, his statement Ex. PW3lA was recorded. The other material
witnesses are PW4 Dharampal, PW5 Rajesh, brothers of the deceased
Parvesh, PW7 J. C. Sehgal, then Tehsildar in the office of SDM, Punjabi
Bagh, he recorded statements of father and brother of deceased, PW8 Dr.
Manoj Dhingra was working with Dr. Vivek Rawat and conducted the post
mortem of the body of the deceased. PW8 deposed that as per the post-
mortem report, the cause of death was due to "Asphyxia as a result of
hanging & all other injuries were ante-mortem". PW10 Inspector
Amrender Kumar, then Incharge Crime Team, West District, Delhi
deposed that he reached at the spot and found one dead body of a female
lying on the floor. After inspection of the scene of crime, he prepared the
crime report, Ex. PW-10A. PW16 IO / Inspector Dhiraj Kumar deposed
that on the day of incident, after conducting investigation, he arrested the
accused Jitender on the same day and later on, arrested accused Parvati.
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PW12 HC Pyare Lal and PW13 SI Rajbir Singh were examined, who
deposed on the same lines as of PW16.
7. After recording of statement of all the witnesses, the prosecution
evidence was closed. The statements of both respondents were recorded
under Section 313 CrPC. They denied the incriminating evidence adduced
against them and pleaded innocence. The respondents chose to lead defence
evidence and examined DW1 Ram Chander and DW2 Vijay Kumar in their
defence. The witnesses stated that they knew the accused Jitender and
Parvati for the last several years. Accused/respondent no. 1 Jitender got
married to deceased in the year 2009 and accused/respondents were having
good relations with the deceased and there was no quarrel between them.
Thereafter, defence evidence was closed.
8. On the culmination of the trial, the learned ASJ examined the entire
record and vide impugned judgment dated 30.10.2019 acquitted both the
respondents for the offences punishable under Section 302/304B/34 IPC.
Questioning the acquittal of the respondents, the State has filed the present
petition along with the appeal.
9. In support of the petition, Mr. Pradeep Gahlot, learned APP for State
submitted that learned ASJ has failed to appreciate the evidence on record
and apply the law as settled by various High Courts and the
Apex Court. All the prosecution witnesses have stood their ground on the
issue of harassment due to dowry demands extended by the respondents to
the deceased Parvesh. Apart from minor contradictions, which are always
expected, there was a direct link between the said harassment and death of
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the deceased. However, the learned ASJ while recording the statement of
dowry demand made by the sister-in-law of the deceased erred in holding
that the same would not fall in the category of dowry and gave undue
weightage to the statement of Hargyan Singh recorded before the Executive
Magistrate without appreciating the fact that he was perturbed with
unnatural death of his daughter when his statement before the Executive
Magistrate was recorded. It would be extremely unfair to expect from a
father at that time to give all details of his daughter‟s married life to the
SDM.
10. It was submitted that learned ASJ further failed to appreciate that it is
evident from the deposition of PW3 that he had thrice handed over Rs.
50,000/- to the respondents which falls within the category of dowry as
defined under Section 2 of the Dowry Prohibition Act, 1961. It was
submitted that the minor inconsistencies occurring in the testimony of the
prosecution witnesses did not destroy the substratum of their deposition,
which were otherwise cogent and reliable. Reliance was placed on the
judgment in the case of M. Narayan Das vs State of Karnataka reported
as MANU/SC/0523/2015. It was further submitted that dowry demand was
raised by the respondents soon before the death of Parvesh, the father of the
deceased had visited the matrimonial home of Parvesh on 24.03.2013 and
gave Rs. 5,000/- to the respondents requesting them not to trouble his
daughter in future. It was submitted that in view of the testimony of the
prosecution witnesses as well as the post mortem report, it is a clear case of
dowry death. Therefore, the impugned judgment be set aside and both the
respondents be held guilty under the provisions of Section 304B/34 IPC.
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11. Refuting the aforesaid arguments raised by learned APP, it was
submitted on behalf of the respondents that learned Trial Court rightly
refused to accept the testimony of PW2 as major improvements were made
by the witness over his statement recorded by the police on 26.03.2013.
Apart from the statement Ex. PW-3/A recorded of PW3, admittedly no
previous complaint was made either by the deceased or her family members
to the police from where it could be gathered that she was harassed for
dowry demands.
12. It was submitted that under these circumstances, the testimony of
Hargyan Singh (PW3) and Dharampal (PW4) cannot be made the basis for
conviction of the respondents under Section 304B IPC as they are interested
witnesses and their testimonies suffered from material inconsistencies,
which cannot be toned down by terming the same as minor contradictions.
It was also submitted that when the unfortunate incident occurred, both the
respondents were not present in the house. Respondent no. 1, Jitender had
come to his house after one hour of the incident while respondent no. 2,
Parvati was at her parents‟ house. Therefore, the respondents cannot be
connected with the incident and had no role to play in the suicide committed
by Parvesh. It was submitted that DW1 and DW2, who are independent
witnesses, have testified about this fact and have specifically stated that the
relationship between the respondents and deceased Parvesh was cordial.
Therefore, the entire story of the prosecution is motivated and concocted and
the learned Trial Court has rightly acquitted the respondents and impugned
judgment does not require any interference by this Court.
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13. The learned Trial Court considered the evidence on record and came
to the conclusion that the demand for money raised by the respondents was
not in the nature of dowry demand resulting in unnatural death of Parvesh
and thus acquitted them for the offences punishable under Section 302 IPC
read with Section 34 IPC and 304B IPC read with Section 34 IPC.
14. The gist of the prosecution case is that there was consistent demand
for dowry and the deceased was tortured for additional dowry, she was
unable to sustain the physical and mental torture meted out to her and she
committed suicide by hanging herself.
15. At the outset, it is relevant to mention that the interpretation of
Section 304B IPC and Section 113B of The Indian Evidence Act has been
given on more than one occasion by various High Courts and the Hon‟ble
Supreme Court. Section 304B IPC deals with "dowry death" which reads as
follows:
"304-B. Dowry death.-(1) Where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under normal circumstances
within seven years of her marriage and it is shown that soon before her
death she was subjected to cruelty or harassment by her husband or any
relative of her husband for, or in connection with, any demand for dowry,
such death shall be called 'dowry death' and such husband or relative shall
be deemed to have caused her death.
Explanation. - For the purposes of this sub-section, "dowry" shall have the
same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of
1961).
(2) Whoever commits dowry death shall be punished with imprisonment for
a term which shall not be less than seven years but which may extend to
imprisonment for life."
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16. The legislature has also introduced Section 113-B of the Evidence Act
alongside insertion of Section 304-B IPC.
"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 had been subjected by such person to cruelty
or harassment for, or in connection with, any demand for dowry, the court
shall presume that such person had caused the dowry death.
Explanation.- For the purpose of this section, 'dowry death' shall have the
same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
17. It would be manifest from the reading of the aforesaid provisions that
the basic ingredients to attract the provisions of Section 304-B IPC are as
follows:-
(1) that the death of the woman was caused by any burns or bodily injury or
in some circumstances which were not normal;
(2) such death occurs within 7 years from the date of her marriage;
(3) that the victim was subjected to cruelty or harassment by her husband or
any relative of her husband;
(4) such cruelty or harassment should be for or in connection with the
demand of dowry; and
(5) it is established that such cruelty and harassment was made soon before
her death.
18. It is relevant to be noted that while considering the case under Section
304B IPC, the factum of unnatural death in the matrimonial home within 7
years of marriage is not alone sufficient to bring home the charge under
Section 304B IPC. Further, it is also not enough that harassment or cruelty
was caused to the deceased for demand of dowry at "some time", the cruelty
has to be proved during the close proximity of time of death and it should be
continuous harassment physical or mental by the accused person / persons so
as to make the life of the deceased miserable, which may force the deceased
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to meet with an unnatural death. The law has been well settled "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.
19. A cumulative consideration of the facts and circumstances of the
present case indicate that the deceased Parvesh was married to respondent
no. 1 on 01.12.2009 and she died on 25.03.2013, which establishes that her
death was caused within 7 years from the date of her marriage. From the
post-mortem report, Ex. PW-8/A and testimony of Dr. Manoj Dhingra (PW-
8), it is clear that the death of Parvesh was unnatural as PW-8 has proved the
post-mortem report, Ex. PW-8/A and opined the cause of death as "death is
caused due to Asphyxia as a result of hanging. All injuries are ante-mortem
in nature.
20. To prove that the cruelty or harassment caused to the deceased by the
respondents was „soon before‟ her death, the prosecution has relied upon the
testimony of Hargyan Singh (PW-3), Dharampal (PW-4) and Rajesh (PW-
5). In so far as the statement of PW3, recorded by J. C. Sehgal (PW-7) is
concerned, PW-3 has simply stated that the respondents used to beat his
daughter and many a times, they used to leave her at his house after beating
her. Similarly, PW-4 Dharampal has proved his statement recorded by PW-7
as Ex. PW-4/B wherein also, there is no mention about any dowry demand
raised by the respondents or that deceased Parvesh was harassed by them on
account of any dowry demand. It is not disputed that their statements were
recorded by PW-7 on 26.03.2013, whereas their deposition was made before
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the court on 06.05.2014 and 05.08.2014 respectively, which continued on
subsequent dates. The charge-sheet was filed on 20.06.2013, wherein
apparently, Hargyan (PW-3) and Dharampal (PW-4) never approached the
police after 26.03.2013 till filing of the charge-sheets to state about the
demands made by the respondents or that Parvesh was harassed by
respondents for raising dowry demands, as deposed by them in the Court but
were not recorded by SDM or the police. For the first time, they have made
allegations with respect to dowry demands in the form of cash as raised by
the respondents while deposing before the Court. Therefore, it is relevant to
consider the testimony of PW3 and PW4 in detail.
21. Hargyan Singh (PW-3) has deposed that after marriage, his daughter
started living in her matrimonial home where her husband and in-laws used
to demand money from his daughter and he gave cash of Rs. 50,000/- on
three occasions, once he handed over Rs. 50,000/- to respondent no. 1 in his
house and twice Rs. 50,000/- each to the respondents in their house. He
deposed that at the time of birth of a female child of his daughter Parvesh,
her sister-in-law namely Tara demanded a gold ring from his daughter and
he gave Rs. 30,000/- in cash to Parvesh in his house for getting a gold ring
made for her sister-in-law. PW-3 has further deposed that apart from the
respondents, the sister of respondent no. 1 namely Tara, his father Ramdev
and his younger brother Ranjeet used to beat his daughter over dowry
demands and harass her. Needless to say the entire testimony of PW-3 is
major improvement over his statement Ex. PW-7/A recorded by PW-7.
Apart from the improvements, the testimony of Hargyan (PW-3) and
Dharampal (PW-4) are not only contradictory but highly inconsistent.
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22. It also appears from the testimony of PW3, PW4 and PW5 that they
have starkly contradicted the stand of each other about the place, the
respondents and their family members to whom PW3 had handed over
money on different occasion, to quench their thirst for dowry demands. The
witnesses have also roped in the sister-in-law Tara for having raised dowry
demands. PW3 deposed that she demanded a gold ring, whereas PW4 and
PW5 deposed that she demanded gold earring. PW3 testified that he gave
Rs. 30,000/- to his daughter for purchasing the gold ring. However, the
testimony of PW5 is that he fulfilled the demand of gold earring raised by
Tara. Interestingly, PW3, PW4 and PW5 have also included the names of
other family members for having tortured Parvesh while raising dowry
demand. Another new fact introduced by the witness is that the deceased
Parvesh was addressed by respondents and others as "kali". Noticeably, all
the specific dowry demands have been urged by witnesses for the first time
before the Court, which do not find any mention in their statements recorded
by PW7.
23. Another important fact worth considering is that Dharampal (PW-4)
has categorically deposed that the concerned SDM had recorded his
complete statement and he did not omit to state anything before the SDM.
Further, PW-7 J. C. Sehgal admitted that both Hargyan and Dharampal gave
their statements as Ex. PW-7/A and PW-4/B respectively before him
voluntarily and in full conscious state. Therefore, it emerges that PW-4 had
got recorded a comprehensive statement of PW-7, which is Ex. PW-4/B.
Consequently, the deposition made in Court with respect to dowry demand
is a major improvement.
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24. It is also to be noted that from the testimony of PW-4 Dharampal, it is
clear that deceased had not told PW-4 directly about any of the atrocities or
dowry demands during her visit to her parental home but she had narrated
about the harassment to his wife and wife of his brother. However, neither
wife of PW-4 nor the wife of his brother have been examined as a witness in
the present case to prove the said dowry demand.
25. Testimony of Rajesh PW5 further reveals that he used to visit
matrimonial home of his sister a number of times after her marriage with
respondent no. 1. He was having cordial relations with Parvesh and her in-
laws including respondent no. 1. He was given due honour on his visit to her
matrimonial house. From the testimony of PW-5, it also emerges that
respondents had never raised any demand of cash from his deceased sister.
26. As a sequel to above discussions, the analysis of the evidence in our
view has been dealt with in proper perspective by the learned Trial Court as
the learned Trial Court had found major improvements made by the prime
witnesses in the present case. Apart from that, the learned Trial Court also
found that their testimonies were inconsistent. Further, Hargyan Singh, PW-
3 had testified that on 24.03.2013, he had visited the matrimonial house of
his deceased daughter and he gave Rs. 5,000/- to her in-laws and requested
them not to harass Parvesh as nothing was left with him to give them in
future and if they would make demand, he would be forced to file a police
complaint. The said part of his testimony is again a major improvement
which does not find any mention in his statement recorded by PW-7. This
fact has not been disclosed either by PW-3 or PW-4, when their statements
were recorded by PW-7 on 26.03.2013. Learned APP has made an
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impactful submission that it is justificiable for a parent been not able to
make complete disclosure of the matrimonial life of his child, immediately
after the death of their daughter specifically when the death is in unnatural
circumstances to an authority. However, such a parent is expected to narrate
the important instances, which would be relevant to assess the cause and
effect of an unnatural death. In view of the above, the prosecution has
miserably failed to prove any dowry demand raised by the respondents soon
before the death of Parvesh.
27. On overall scrutiny of the evidence as a whole, in our comprehension,
the prosecution has failed to prove the crucial ingredients of section 304B
IPC that cruelty and harassment in connection with demand of dowry was
made by respondents soon before death of Parvesh, thereby disentitling the
prosecution to the benefit of statutory presumption available under Section
113B of the Act.
28. In view of the evaluation made herein above, we are of the view that
the respondents have been correctly given the benefit of doubt by the
learned ASJ, after analyzing the evidence under Section 304B IPC.
29. Accordingly, we find no merit in the Leave to Appeal against the
impugned judgment dated 30.10.2019, which is hereby dismissed.
SHALINDER KAUR, J.
SURESH KUMAR KAIT, J.
DECEMBER 22, 2023/ SS
