Hompal Singh & Ors. vs State Of Delhi on 22 May, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.Appeal No.661/2001

Date of Decision: 22nd May, 2017

HOMPAL SINGH ORS. ….. Appellants

Through Mr.R.M.Tufail,
Mr.Farooq Chaudhary,
Mr.Vishal Raj Sehijpal,
Ms.Meenakshi Joshi and
Ms.Astha, Advs.

versus

STATE OF DELHI ….. Respondent
Through Mr.Akshai Malik, APP.

CORAM:
HON’BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1. The present appeal has been filed under Section 389

Cr.P.C. against judgment and order on sentence dated

06.09.2001 whereby the appellants have been found guilty and

convicted for an offence punishable under Section 304B IPC

and sentenced to undergo rigorous imprisonment for ten years

each.

2. The facts of the case, as per the case of the prosecution,

in a nutshell are that on 01.09.1995 an intimation was received
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vide DD No.15A at 8.45 P.M. that one lady by the name of

Rita had been admitted in the GTB hospital in an unconscious

condition. The said DD was marked to SI Sher Singh who

proceeded to the hospital along with Const.Naresh at 12 in the

night, intimation regarding the death of said Rita was given

vide DD No.20A. On 02.09.1995, the SDM visited the

hospital and conducted the inquest proceedings. On

04.09.1995, the SDM recorded the statements of father and

brother of the deceased and directed registration of the case

which gave rise to the present FIR bearing No.298/1995.

3. The post mortem was conducted on the body of

deceased Rita where the doctor opined that the cause of death

was consumption of organo phosphorous poison.

4. After completion of investigation, challan was filed and later

the M.M. committed the case to the court of sessions.

5. Vide order 06.09.1996, charge under Sections 406/34 IPC,

498A/34 IPC and 304B/34 IPC was framed against all the accused

persons to which they pleaded not guilty and claimed trial.

6. In support of its case, the prosecution examined 17 witnesses

in all. PW-1 SI Daulat Ram, PW-2 Sheela Devi, PW-3 Ramakant,
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PW-4 Dr.Anil Kohli, PW-5 HC Satpal Singh, PW-6 Const.Rajni,

PW-7 Const. Mahesh, PW-8 ASI Subedar Singh, PW-9 SI Sher

Singh, PW-10 J.Ramana Reddy, Junior Scientific Officer, PW-11

Sh.K.K.Dahiya, PW-12 HC Ravinder Kumar, P-13 Const.Rajender

Singh, PW-14 Dr.T.S.Daral, PW-15 SI Devi Charan, PW-16 HC

Abhay Singh and PW-17 Const.Jagdish.

7. In support of their case, the accused examined eight witnesses.

8. After conclusion of recording of evidence, statement of

accused persons were recorded under Section 313 Cr.P.C.

9. Vide the impugned judgment and order on sentence dated

06.09.2001, all the accused except Smt.Sushila, who was acquitted of

the charged offence, were convicted under Section 304B IPC and

sentenced to undergo RI for ten years. Hence the present appeal.

10. In support of the appeal, the appellants/accused have taken the

grounds that there is no legal evidence against the appellants

justifying their conviction, that there has been inordinate and

unexplained delay of three days in lodging the FIR which made the

entire prosecution case suspicious; that the evidence rendered by the

related witnesses of the deceased was self-contradictory and

unreliable; that the medical evidence does not support the prosecution

case as the ‘organo phosphorous compound’ which was found in the
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viscera of the deceased, is commonly found in the insecticide which

is normally used in the household for keeping away pests, grain

insects etc.; that the investigation has not been fair to invoke

confidence and the document Ex.PW11/B, which is in the

handwriting of the S.D.M., records that “her parents have alleged foul

play in her death”. This document is dated 02.09.1995 on the

contrary PW-1 to PW-3 have in clear terms stated that they never met

the S.D.M before 04.09.1995, that the co-appellant Arvind, husband

of the deceased, had himself removed his wife Rita (deceased) to the

hospital which shows that the deceased was well looked after in her

matrimonial house; that there is no independent corroboration to the

testimony of PW-1 to PW-3 and that the judgment of the Trial Court

is otherwise based on conjecture and surmises.

11. On the contrary, learned Additional Public Prosecutor for the

State has vehemently opposed the aforesaid contentions raised on

behalf of the appellants and submitted that the judgment of

conviction and order on sentence as passed by learned Additional

Sessions Judge do not suffer from any irregularity or illegalities and

is passed with a reasoned order, therefore, the same is not liable to be

interfered with.

12. Arguments advanced by the learned counsel for the appellant
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as well as learned APP for the State were heard.

13. PW-1 Daulat Ram is the father of the deceased. He has

deposed that Mr.Hompal, father in law of the deceased, told them at

the time of marriage that saptapadi would not be performed unless

colour TV and scooter were given to them. A quarrel took place on

this issue and further marriage ceremonies were stopped. However,

later with the intervention of the baratis and people from the side of

girl, marriage and bidai ceremony were performed. He further

deposed that after marriage, his daughter came to his house on the

occasion of Rakhi where he found the physical condition of his

daughter had deteriorated and he enquired from her whether she was

happy in her matrimonial home, to which his daughter told him that

there used to be quarrels all the time on the issue of colour TV and

scooter and everybody used to harass her for this demand. He also

deposed that on the occasion of Rakhi, when his daughter came to her

parental house, she was told to bring Rs.31,000/- in cash, otherwise

she should not come back to the matrimonial house. He also deposed

that in his absence a call was received by his son that nobody from

the parental house of the deceased should visit the accused and if

anybody does that, their legs shall be broken. On 01.09.1995 at about

10 PM, a telephone call was received at the house of his son’s friend
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informing that his daughter was in a critical condition and that they

were being called. When they reached at the gate of house of the

accused, they were told by Usha, wife of Ashwini, brother in law of

the deceased, that the condition of the deceased was critical. While

they were on the way to the hospital, they came to know that their

daughter had expired.

14. PW-2 Smt.Sheela Devi is the mother of the deceased. She

also deposed on the same lines as her husband (PW-1) with

respect to the demand of dowry from her deceased daughter.

15. PW-3 Ramakant also made statements similar to that of

PW-1 and PW-2.

16. PW-4 is Dr.Anil Kohli. He deposed that he had

conducted post mortem on the dead body of the deceased and

opined that the cause of death of the deceased was poisoning

with organo phosphorous poison. He deposed that the ante

mortem injuries found on the person of deceased could be

caused during administering medicine to her while trying to

restrain her.

17. From the testimony of PW1 to PW3, it is amply clear that

the deceased was being harassed by the appellants for or in
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connection with demand of dowry. In their testimony, these

witnesses have deposed that after the marriage of the deceased

with the appellant Arvind Kumar, she was harassed and beaten

up by the appellants for or in connection with demand of dowry.

They have stated that the appellants used to demand scooter, TV

and cash from the deceased and for the same, they used to

harass her and also gave beatings to her. It is also stated by the

witnesses PW-1 and PW-2 that the appellants had demanded

cash of Rs.31,000/- from them which they were unable to give.

18. Thus, from the testimony of above witnesses, there is

enough evidence on record from which it has been established

that the deceased was being harassed by the appellants for or in

connection with demand of dowry. Therefore, the conviction of

the appellants deserves to be upheld under Section 498A/34

IPC.

19. So far as the conviction of the appellants under Section

304B IPC for causing the dowry death of the deceased is

concerned, in the case of Devi Lal vs. State of Rajasthan AIR

2008 SC 332, Hon’ble Apex Court has observed that the
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ingredients of provisions of section 304 B IPC are (1) that the

death of the woman was caused by any burns or bodily injury or

in some circumstances which were not normal; (2) such death

occurs within 7 years from the date of her marriage; (3) that the

victim was subjected to cruelty or harassment by her husband or

any relative of her husband; (4) such cruelty or harassment

should be for or in connection with the demand of dowry; and

(5) it is established that such cruelty and harassment was made

soon before her death. It was further observed that before an

accused is found guilty for commission of an offence, the Court

must arrive at a finding that the ingredients thereof have been

established. It was held that statement of a witness for the said

purpose must be read in its entirety. It is not necessary for a

witness to make a statement in consonance with the wording of

the section of a statute. What is needed is to find out whether

the evidences brought on record satisfy the ingredients thereof.

20. Necessary ingredients of dowry death as provided under

Section 304B of IPC are :

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(i)Deceased was the subject matter of cruelty on account
of dowry and culminates into guilt of accused under
Section 498A IPC;

(ii)The death should have taken place due to bodily
injuries other than normal circumstances; and

(iii)Such death was the subject matter of cruelty soon
before death.

21. As far as death of the deceased Rita is concerned, it is not

in dispute that she died due to consumption of poison which

shows that the death of the deceased was not under normal

circumstances which fulfils the first ingredient for the

commission of offence under Section 304B IPC.

22. The second ingredient that death of the deceased had

taken place within seven years of her marriage with the

appellant Arvind Kumar is established from the evidence, as

marriage had taken place on 02.07.1995 and her death took

place on 01.09.1995 i.e. within a year of her marriage.

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23. The next and the most important ingredient required to be

proved from the evidence is that the deceased was subjected to

cruelty and harassment on account of demand of dowry by her

husband or any relative of her husband and that was done soon

before death. The prosecution has produced PW1 to PW3 to

prove this ingredient. PW1 happened to be the father of the

deceased, PW2 happened to be the mother of the deceased and

PW3 happened to be the brother of the deceased. The detailed

discussion of their testimony has already been made.

24. The last ingredient is based upon the commission of

offence under Section 498A IPC and while committing the

offence under Section 498A IPC, if it connects with the death,

then it would be an offence punishable under Section 304B IPC.

The prosecution has failed miserably to establish beyond

reasonable doubt that any cruelty or harassment was meted out

to the deceased for or in connection with demand of dowry by

any of the appellants soon before her death. The ingredient of

harassing or beating the deceased for or in connection with

demand of dowry soon before her death is missing from the
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testimony of above mentioned prosecution witnesses. Though

from their testimony, it has duly been established that the

deceased was subjected to harassment and cruelty for or in

connection with demand of dowry, but no incident or occasion

had been brought on record to connect any of the appellants

with the said harassment or cruelty meted out to the deceased

“soon before her death”.

25. The argument advanced by the learned APP for the State

is that Section 113B of the Indian Evidence Act leads to the

presumption of the guilt of the appellants. Section 113B of the

Indian Evidence Act reads as under :

“113B. 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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26. The presumption under Section 113B of the Evidence Act

can be drawn only where the ingredients of Section 304B IPC

are fulfilled. The prosecution has failed to establish the

necessary ingredient of dowry death i.e. cruelty or harassment

meted out to the deceased by the appellant “soon before her

death”. As mentioned above, the prosecution has failed to prove

the chain of necessary ingredients to raise the presumption

under Section 113B of the Indian Evidence Act.

27. From no stretch of imagination, the evidence led by the

prosecution in the present case could culminate into conviction

of the appellants under Section 304-B read with 34 IPC.

28. It has been brought on record that all the appellants

remained behind the bars before suspending their sentence by

this Court as evident from their nominal roll.

29. In view of the above discussion and the evidence

discussed, this Court upholds the judgment of conviction and

order on sentence awarded to the appellants under Section 498A

read with Section 34 of the IPC.

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30. However, the judgment of conviction and order on

sentence awarded to the appellants under Section 304B read

with Section 34 IPC is set aside.

31. Apparently, the death of the deceased had taken place on

01.09.1995; the charge was framed on 06.09.1996; judgment of

conviction and order on sentence was passed on 06.09.2001; the

appellants have faced the protracted trial for about 22 years and

since there is no minimum sentence provided under Section

498A IPC, the interest of justice would be met if the sentence of

the appellants is modified to undergo RI for a period of two

years. It is held accordingly.

32. The appellants are already on bail. Their bail bonds and

surety bonds are discharged.

33. The appeal is disposed of accordingly.

34. Pending application, if any, is also disposed of.

(P.S.TEJI)
JUDGE
MAY 22, 2017
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