Rakesh & Anr. vs State Of Delhi on 25 May, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.Appeal No.614/2001

Date of Decision: May 25, 2017

RAKESH ANR. ….. Appellants

Through Ms.Manika Tripathy Pandey and
Mr.Ashutosh Kaushal, Advs.

versus

STATE OF DELHI ….. Respondent
Through Mr.Panna Lal Sharma, APP.

CORAM:
HON’BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

1. The present appeal has been filed under Section 382

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

25.07.2001 whereby the appellants have been found guilty and

convicted for the offence punishable under Section 498A and

304B and sentenced to undergo RI for seven years each for the

offence under Section 304B IPC and to undergo RI for six

months each and to pay fine of Rs.5,000/- each, in default to

undergo SI two months for the offence under Section 498A

IPC.

Crl.Appeal No.614/2001 Page1 of 16

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

in a nutshell are that on 06.11.1996 an intimation was received

vide DD No.43 at 10.20 P.M. through wireless that near house

no.204/a, Chota Bazar, Gudia Mohalla, Circular Road,

Shahdara, Delhi a women had set herself ablaze and had been

removed to JPN Hospital at 10.55 P.M. She died on the next

day. FIR was registered on 07.11.1996. Post mortem was

conducted and the SDM recorded the statement of the brother

of the deceased and ordered the registration of a case under

Section 304B and 498A of IPC. After investigation, the charge

sheet was filed against appellant No.1/Rakesh (husband of the

deceased) and appellant No.2/Kamla (Mother-in-law of the

deceased). The case was later committed to the court of

sessions.

3. Vide order 13.05.1998, charge under Sections 304B/34

IPC 498A/34 IPC was framed against both the accused

persons to which they pleaded not guilty and claimed trial.

4. In support of its case, the prosecution examined 22

witnesses in all. PW-1 Smt.Shanti Devi, PW-2 Musadi Lal, PW-

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3 Prithvi Raj, PW-4 Jai Kumar, PW-5 Maden Sen, PW-6 HC

Chaman Singh, PW-7 Trilok Chand, PW-8 Shiv Kumar, PW-9

Const.Madvi, PW-10 Const.Sita Ram, P-11 HC Suresh Kumar,

PW-12 Const.Mitender Kumar, PW-13 Const.Jitender Kumar,

PW-14 Const.Sanjay Kumar, PW-15 Deepak Virmani, PW-16

Const.Rajbir Singh, PW-16 Doctor Shyambir Singh, PW-17

Lady Const. Shahsi, PW-18 Sh.Ajay Garg, PW-19

P.S.Bhandari, PW-20 HC Jagdish Chander, PW-21 ASI

Gajender Singh and PW-22 Dr.Usha

5. After conclusion of recording of evidence, statement of

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

6. Vide the impugned judgment and order on sentence dated

25.07.2001, appellants were found guilty and convicted for the

offence punishable under Section 498A and 304B and

sentenced to undergo RI for seven years each for the offence

under Section 304B IPC and to undergo RI for six months each

and to pay fine of Rs.5,000/- each, in default to undergo SI two

months for the offence under Section 498A IPC. Hence the

present appeal.

Crl.Appeal No.614/2001 Page3 of 16

7. In support of the appeal, the appellants/accused have

taken the grounds that the Trial Court has erred in law as the

appellants have been convicted without appreciation of reliable

evidence in the form of testimonies of the prosecution witneses;

that PW-2 has denied any knowledge of any harassment and ill-

treatment meted out to the deceased; that the learned Trial Court

could not appreciate the evidence of dying declaration recorded

by the attending doctor; that the dying declaration made by the

deceased was not put before the appellants in their examination

under Section 313 Cr.P.C.; that the delay of a day in lodging the

FIR casts a shadow of doubt at the entire prosecution story; that

the Trial Court also did not consider the MLC of the appellant

No.1 which shows that the appellant No.1 received 25% of burn

injuries in the course of saving the deceased.

8. 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

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irregularity or illegalities and is passed with a reasoned order,

therefore, the same is not liable to be interfered with.

9. Arguments advanced by the learned counsel for the

appellants as well as learned APP for the State were heard.

10. PW-1 Shanti Devi is the mother of the deceased. She

deposed that after the marriage of her daughter, her daughter

used to make complaints against her husband and mother-in-law

that they used to demand dowry i.e. Rs.20,000/-, colour TV,

Mixi and fridge. However, in the marriage, she had given

whatever she could afford. She deposed that her daughter used

to tell her that the accused persons used to harass her and also

gave beatings to her.

11. PW-3 is Prithvi Raj, who is the brother of the deceased.

He deposed that his sister got married on 01.12.1995 with the

appellant No.1 according to hindu rites and ceremonies and a

sum of Rs.35,000/- was spent on their marriage. He deposed

that after 2-3 months of their marriage, when his sister came to

her parental house, she told that appellant No.1 was demanding

Rs.20,000/-. He deposed that after 2-3 months, Rakesh himself

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came to his house and demanded Rs.20,000/- again. However,

he showed his inability to pay the money, but regular demands

of colour TV, fridge, mixi and gas were made. Subsequent

thereto, both the appellants started giving beatings to his sister.

He also deposed that his sister used to tell him that her mother-

in-law used to harass her. At the time of Diwali, which was on

06.11.1996, his sister received burn injuries and this

information was given to him by the mediator/middleman

Musadi Lal. He deposed that he went to the hospital on receipt

of this information along with his mother, wife, brother Jai

Kumar and cousin brother where he found his sister lying in an

ambulance. They remained at the hospital throughout the night

and on the next day, his sister Saroj expired in the noon. In his

cross examination, he denied that his sister was suffering from

menstrual disorders.

12. PW-4 Jai Kumar is another brother of the deceased. He

deposed that after seven months of the marriage, appellant No.1

started harassing his sister and used to give beatings to her. As

to the demand of dowry, he testified on the same lines as was

Crl.Appeal No.614/2001 Page6 of 16
done by PW-3 Prithvi Raj.

13. PW-6 is HC Chaman Singh. He deposed that on

06.11.1996 at about 10.30 P.M. he received DD No.43 with

regard to the fact that a lady had put herself on fire at house

no.204/1, Gudai Mohalla, Shahdara. On receipt of the said DD,

he along with Const. Sanjay went to the spot where he came to

know that the injured had already gone to an unknown place

and no witness of the incident appeared in the meantime. He

deposed that DD No.50 was handed over to him by Const. Surat

with regard to the fact that the injured had been admitted in JPN

hospital. He deposed that he collected the MLC of appellant

No.1/Rakesh and deceased Saroj; inspected the spot along with

ASI Gajender at the instance of PW-2/Musadi Lal; prepared the

site plan; took into possession one cot which was in burnt

condition and one plastic can with some kerosene oil in it vide

ExPW6/B; He also deposed that he took possession of one bag,

another can with some burnt clothes one matchbox with some

match sticks vide ExPW6/D.

14. PW-8 is Shiv Kumar. He deposed that near Diwali at

Crl.Appeal No.614/2001 Page7 of 16
about 10 P.M. when he was present at his house, his neighbor

knocked his door and told him that a room has been set on fire

and appellant No.1/Rakesh and the deceased/Saroj were inside

the room. He deposed that he along with other persons opened

the door where they saw that Saroj had caught fire and he

immediately took her to General Hospital. In cross-

examination, he deposed that he had extinguished the fire on

entering inside the room where she had caught fire. He further

deposed that Rakesh had become unconscious while trying to

extinguish the fire and Rakesh had also sustained burn injuries

while extinguishing the fire. He deposed that on enquiry, the

deceased told him that she had set herself on fire because she

remained sick.

15. PW-16 is Doctor Shyambir Singh. He deposed that he

had conducted the post mortem on the dead body of the

deceased at 11 AM. He opined that the death in the instant case

is due to burn shock consequent upon 98% burn injuries of the

total body surface area. He also deposed that all the injuries

were ante mortem and recent in duration. All the injuries were

Crl.Appeal No.614/2001 Page8 of 16
caused by burns due to fire.

16. PW-16 is ASI Gajender Singh. He deposed that on the

directions of the SHO Sh.Rishi Pal Singh, he went to JPN

hospital where HC Chaman Singh and Const. Sanjay met him in

the hospital where he met mother and brother of the deceased

who told him that they would make the statement before the

SDM. On 07.11.1996, the mother and brother of the deceased

made their statement in the office of SDM. In the cross-

examination, he deposed that he did not see any blood stain or

blood clot at the place of occurrence. He further deposed that

none of the neighbours of the accused told him that there was

any difference on account of demand of dowry between the

appellant No.1/accused and the deceased. He also deposed that

the deceased party did not produce any list of dowry articles to

him during investigation.

17. PW-22 is Dr. Usha who deposed that the deceased had

100% burn injuries and smell of kerosene was present on her

body. In her cross-examination, she deposed that the deceased

had given alleged history mentioned in the MLC and the history

Crl.Appeal No.614/2001 Page9 of 16
had been given by the deceased herself where she said that she

had poured kerosene on herself due to irritation of prolonged

illness of self and then set herself ablaze.

18. From the testimony of PW1, PW3 PW4, it is amply

clear that the deceased was being harassed by the appellants for

or in connection with demand of dowry. In their testimony,

these witnesses have deposed that after the marriage of the

deceased with the appellant Rakesh, 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

Rs.20,000/-, colour TV, mixi and fridge from the deceased and

for the same, they used to harass her and give beatings to her.

19. 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.

Crl.Appeal No.614/2001 Page10 of 16

20. 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

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

Crl.Appeal No.614/2001 Page11 of 16
the section of a statute. What is needed is to find out whether

the evidences brought on record satisfy the ingredients thereof.

21. Necessary ingredients of dowry death as provided under

Section 304B of IPC are :

(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.

22. As far as death of the deceased Saroj is concerned, it is

not in dispute that she died due to 100 per cent burn injuries

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.

23. The second ingredient that death of the deceased had

taken place within seven years of her marriage with the

appellant Rakesh is established from the evidence, as marriage

Crl.Appeal No.614/2001 Page12 of 16
had taken place on 01.12.1995 and her death took place on

07.11.1996 i.e. within a year of her marriage.

24. 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, PW3 PW4

to prove these ingredients. PW1 happened to be the mother of

the deceased, PW3 and PW4 happened to be the brothers of the

deceased. The detailed discussion of their testimony has already

been made.

25. 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
Crl.Appeal No.614/2001 Page13 of 16
harassing or beating the deceased for or in connection with

demand of dowry soon before her death is missing from the

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”.

26. 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

Crl.Appeal No.614/2001 Page14 of 16
such person had caused the dowry
death.”

27. 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.

28. 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.

29. It has been brought on record that the appellants remained

behind the bar during trial from 08.11.1996 to 06.03.1997 and

post conviction from 25.07.2001 to 12.07.2004, the date when

their sentence was suspended by this court.

30. In view of the above discussion and the evidence

discussed, this Court upholds the judgment of conviction and
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order on sentence awarded to the appellants under Section 498A

read with Section 34 of the IPC.

31. However, the judgment of conviction and order on

sentence awarded to the appellants under Section 304B read

with Section 34 IPC is set aside.

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

07.11.1996; the charge was framed on 13.05.1998; judgment of

conviction and order on sentence was passed on 25.07.2001; the

appellants have faced the agony of protracted trial for about 21

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 the period already

undergone by them. It is held accordingly.

33. The appeal is disposed of accordingly.

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

(P.S.TEJI)
JUDGE
MAY 25, 2017

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