Jamadar Ojha vs State & Ors. on 1 June, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 1st June, 2017

+ CRL.A. 1396/2012
JAMADAR OJHA ….. Appellant
Represented by: Ms. Savita Singh, Adv.

versus
STATE ORS. ….. Respondent
Represented by: Ms. Rajni Gupta, APP for State
with ASI Tulli Ram, PS
Badarpur.
Mr. Bharat Chugh, Adv.
(Amicus Curiae) for R-2.

+ CRL.A. 134/2013
RAJINDER TIWARI ….. Appellant
Represented by: Mr. Bharat Chugh, Adv.
(Amicus Curiae)
versus
STATE ….. Respondent
Represented by: Ms. Rajni Gupta, APP for State
with ASI Tulli Ram, PS
Badarpur.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. Vide impugned judgment dated 29th August, 2012, Rajinder Tiwari
and Sanjay Tiwari were convicted for offences punishable under Sections
498A/
304B IPC. Vide order on sentence dated 15 th September, 2012
Rajinder Tiwari and Sanjay Tiwari were sentenced to undergo rigorous

Crl.A Nos. 1396/2012 134/2013 Page 1 of 19
imprisonment for a period of three years and to pay a fine of `10,000/- each
for offence punishable under
Section 498A IPC and rigorous imprisonment
for period of seven years for offence punishable under
Section 304B IPC. In
Crl. A. 134/2013, Rajinder Tiwari and Sanjay Tiwari had challenged their
conviction and order on sentence. Since Sanjay Tiwari died having
committed suicide on 2nd March, 2017, thus, Crl.A. 134/2013 challenging
conviction and order on sentence stands abated qua him and survives only
qua Rajinder Tiwari.

2. In Crl.A. 1396/2012, the prayers made by Jamadar Ojha, father of the
deceased was for setting aside acquittal of Mohini Tiwari, mother in law of
the deceased and enhancement of sentence of Rajinder Tiwari and Sanjay
Tiwari. Though, in the alternative, charge for offence punishable under
Section 302 IPC was framed against the accused, learned Trial Court
convicted Sanjay Tiwari and Rajinder Tiwari only for offence punishable
under
Sections 498A/304B. No leave to appeal was sought either by the
State or Jamadar Ojha against acquittal of Rajinder Tiwari and Sanjay Tiwari
for offence punishable under
Section 302 IPC. Even in respect of challenge
to the acquittal of Mohini Tiwari, this Court vide order dated 8th July, 2016
noted that no leave to appeal against acquittal has been sought in Crl.A.
1396/2012 and without seeking leave to appeal, the appeal cannot be
entertained against acquittal in terms of the decision of the Supreme Court
reported as 2015(15) SCC 613 Satyapal Singh Vs. State of Madhya Pradesh.
Thus, Crl.A. 1396/2012 was confined to enhancement of sentence qua
conviction of Rajinder Tiwari and Sanjay Tiwari for offence punishable
under
Section 304B IPC as for offence punishable under Section 498A IPC,
Rajinder Tiwari and Sanjay Tiwari were awarded the maximum sentence i.e.

Crl.A Nos. 1396/2012 134/2013 Page 2 of 19
imprisonment for a period of three years. As noted above, Sanjay Tiwari
died on 2nd March, 2017, thus, Crl.A.1396/2012 is now confined only to the
extent of enhancement of sentence of Rajinder Tiwari for offence punishable
under
Section 304B IPC.

3. Learned Amicus Curiae for the appellant Rajinder Tiwari challenging
his conviction for offences punishable under
Sections 304B/498A IPC
submits that even as per the evidence of the prosecution witnesses it has not
been proved that there was any cruelty for demand of dowry. There was no
previous complaint alleging demand of dowry or cruelty on that count. Only
bald and vague allegations of dowry demand have been made. The
marriage between Sanjay Tiwari and the deceased was a low key affair.
There is no allegation that either at the time of marriage or prior thereto there
was any demand of dowry. The only allegation against Rajinder Tiwari as
deposed to by father of the deceased was that some time after the marriage,
Tata Sumo Car was demanded so that Sanjay Tiwari could ply the same and
earn his livelihood. Further even as per brother of the deceased, the said
demand by Rajinder Tiwari was made six-seven months after the marriage.
The deceased died after more than 4½ years of marriage, thus a demand
made four years prior to the date of death cannot be said to be a dowry
demand soon before death. Therefore as per the evidence of the prosecution,
no demand was made by the appellant soon before the death, thus he cannot
be convicted for offence punishable under
Section 304B IPC. To raise a
presumption under
Section 113B of the Evidence Act, the prosecution is
required to substantiate the ingredients of the offence by direct and
convincing evidence as held by the Supreme Court in the decision reported
as (2017) 1 SCC 101 Baijnath Ors. Vs. State of Madhya Pradesh and in

Crl.A Nos. 1396/2012 134/2013 Page 3 of 19
the absence of prima facie evidence being proved by the prosecution, no
presumption can be raised and the appellant was not required to rebut the
same. Though the SDM claims that he went to the spot and recorded the
statement of witnesses, however, this fact is belied by the prosecution
witnesses themselves who stated that SDM never came to the spot and they
went to his office whereafter he recorded their statements. It is contended
that even as per DW-2 and DW-3, the deceased was in her parental home
when the incident took place and was brought to the matrimonial home later.
Further in his statement under
Section 313 Cr.P.C, appellant Rajinder Tiwari
stated that he was not present at home at the time of incident and was in his
godown which fact has been proved by the testimony of DW-5. Learned
Trial Court erroneously brushed aside the statement of defence witnesses.
Reliance is placed on the decision of Supreme Court reported as (1981) 2
SCC 166 Dudh Nath Pandey Vs. State of Uttar Pradesh and of this Court
reported as 2009 SCC OnLine Del 2803 Pradeep Saini Anr. Vs. State to
contend that evidence of defence witnesses is also entitled to the same
weightage.

4. Learned APP for the State has taken this Court through the testimony
of the father and mother of the deceased examined as PW-1 and PW-3
respectively. In her testimony, mother of the deceased stated that whenever
her daughter used to visit their house she complained about the ill treatment
meted out to her, by her in-laws including the appellant herein. She also
clarified that she did not lodge any complaint against the in-laws of her
daughter for the cruelty meted out to her as they wanted to save the marriage
between the deceased and her husband. That the deceased suffered
continuous ill treatment is fortified from the fact that the deceased was left at

Crl.A Nos. 1396/2012 134/2013 Page 4 of 19
the parental home and taken back only in January, 2005 i.e. one month prior
to the date of incident which took place in the intervening night of 8 th and 9th
February, 2005. Elder daughter of the deceased was left at the parental home
of deceased on 8th February, 2005. Defence of the appellant that the
deceased was brought from parental home to matrimonial home as deposed
to by DW-2 and DW-3 is falsified by the evidence of father of the deceased
who stated that on 7th February, 2005 his daughter was at the house of her in-
laws. The plea of alibi of appellant cannot be accepted as DW-5 is an
interested witness.

5. Learned counsel for the complainant supporting the contentions of
learned APP for the State submits that there has been a continuous course of
harassment to the deceased, who died an unnatural death, which was
homicidal in nature. She further states that in view of the nature of injuries
and the manner in which death of the deceased was caused, it is a fit case
where the sentence of appellant Rajinder Tiwari be enhanced to life
imprisonment. Reliance is placed on the decisions reported as (1998) 6 SCC
460 Santosh Rani Jain Anr. Vs. State of West Bengal and (2006) 10 SCC
681 Trimukh Maroti Kirkan Vs. State of Maharashtra.

6. Process of law was set into motion on 9th February, 2005 around 4:00
P.M., when Ct. Parveen along with SI Amar Singh went to F-117, Harsh
Vihar, Hari Nagar, Badarpur where a dead body of a lady was found lying in
the courtyard of the house. SI Amar Singh got the dead body photographed
and informed the SHO and concerned SDM about the occurrence. He handed
over the dead body to Ct. Praveen with the direction to take it to the
mortuary, AIIMS Hospital for getting it preserved. Investigation of the case
was entrusted to Insp. M.S. Poonia who was posted as Addl. SHO at PS

Crl.A Nos. 1396/2012 134/2013 Page 5 of 19
Badarpur. R.K. Meena (SDM Kalkaji) recorded the statement of Jamadar
Ojha, father of the deceased (Ex. PW-1/A) and Ajay, brother of the deceased
(Ex. PW-4/B). On the statement of Jamadar Ojha, FIR No. 96/2005 was
registered under
Sections 498A/304B/34 IPC at PS Badarpur (Ex.PW-2/A).
Jamadar Ojha handed over three photographs of marriage of deceased with
Sanjay Tiwari which were seized vide seizure memo Ex. PW-9/A. Rajinder
Tiwari and Sanjay Tiwari were arrested vide arrest memos Ex. PW-9/A-1
and Ex. PW-9/B respectively. After the post mortem of the body was
conducted, viscera and blood sample of the deceased were handed over to SI
Amar Singh vide memo Ex. PW-11/A. On 10th February, 2005, disclosure
statements of Sanjay Tiwari and Rajinder Tiwari were recorded vide memos
Ex. PW-9/C and Ex. PW-9/D respectively.

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7. PW-1 Jamadar Ojha stated that on 25th February 2001, the deceased
was married to Sanjay Tiwari as per Hindu Customs and rites. It was an
arranged marriage and they had spent `3.5 lacs on the marriage. After the
marriage, Rajinder Tiwari, father-in-law of deceased, demanded `1.5 lacs for
purchasing Tata Sumo but he refused to pay. Rajinder Tiwari threatened
him and stated “agar tum mujhe paisa nahi doge toh tumhari ladki ko
chudwa dunga”. In October 2004, second daughter of the deceased was born
after which Mohini and Archana (sisters-in-law of the deceased) refused to
take the deceased back and dropped her at her parental home. In January
2005, Sanjay Tiwari took the deceased to his house. On 8 th February, 2005,
Sanjay Tiwari left his elder daughter Manvi at his house. On 9th February,
2005 at about 5.30-5.45 A.M., he received a call from the daughter of
Rajinder Tiwari informing him that the deceased had fallen from the roof. He
along with his wife Kushalwati and son Omkar reached the house of accused

Crl.A Nos. 1396/2012 134/2013 Page 6 of 19
persons and found the body of the deceased on the staircase. He asked
Sanjay Tiwari why he had not taken the deceased to the hospital when she
had fallen from the roof. Thereafter, Sanjay Tiwari called a TSR and they
took the deceased to Safdarjung Hospital. Sanjay Tiwari stopped them at the
gate of Safdurjang Hospital and took the deceased inside the hospital. After
some time, he brought back the deceased at the gate and informed that the
doctor had declared deceased “brought dead”. The dead body of the
deceased was brought back to the house of the accused persons. He
suspected that the deceased was killed as they had noticed some marks on
the neck of the deceased. In his cross-examination he denied the suggestion
that the deceased used to visit the house of the accused persons before
marriage or Sanjay Tiwari used to visit their house. He also stated that
during the Sagai ceremony in 2001, cash amount of `21,000/- was handed
over to Rajinder Tiwari. His daughter used to tell him that the entire family
of Sanjay Tiwari used to torture the deceased when he could not pay the
money. Deceased also stated that the accused persons used to torture her by
giving beatings, abusing and sometimes not providing her food.

8. PW-3 Smt. Kushalwati, mother of the deceased corroborated the
statement of Jamadar Ojha. She further stated that the deceased used to
complain that Rajinder Tiwari taunted her under the influence of liquor
stating that the deceased’s parents had not given sufficient dowry in the
marriage. The deceased had told her that Sanjay Tiwari was demanding four-
wheeler vehicle (Van) for plying in school. Deceased had told her that her
sisters-in-law used to beat and abuse her. The deceased used to mostly
remain at their house, almost 20 days in a month. In her cross-examination,
she stated that at the time of engagement, Rajinder Tiwari had demanded

Crl.A Nos. 1396/2012 134/2013 Page 7 of 19
cash. At the time of Tika at the accused persons’ house, they had given Rs.
51,000/- to them. She denied the suggestion that before the marriage, the
deceased was operated for an ailment in the neck. She denied the suggestion
that after they came to the matrimonial house of the deceased from the
hospital, Jamadar Ojha insisted that Rajinder Tiwari should transfer their
property at the native place and in Delhi or pay `5 lacs for the daughters of
deceased or deposit the same in the bank in name of the daughters of the
deceased, otherwise he would make a complaint against them.

9. PW-7 Ajay Kumar, brother of the deceased corroborated the
statements made by Jamadar Ojha and Kushalwati.

10. PW-5 Dr. Sudipta Ranjan Singh, Senior Resident, Department of
Forensic Medicine, AIIMS stated that she was deputed to depose on behalf
of Dr. M.G. Jayan, who had conducted the post-mortem on the body of the
deceased, since he had left the hospital. She stated that she was conversant
with the handwriting of Dr. M.G. Jayan. The post mortem report Ex. PW-
5/A was prepared by Dr. M.G. Jayan. As per the report, the cause of death
was asphyxia due to manual strangulation (throttling) of neck which was
sufficient to cause death in ordinary course of nature. Time since death was
about one day. As per the post mortem report, following ante mortem
injuries were observed:

i. Reddish brown coloured abrasion, crescentic shaped with concavity
downwards over lower portion of left ear lobe in the anterior aspect of
size 1.5 X 1 cm.

ii. Reddish brown coloured abrasion, irregular shape place in
submendibular region of size 1.7 X 1.5 cm, measuring 2 cm from the
midline and 1.5 cm from the lower jaw order.

Crl.A Nos. 1396/2012 134/2013 Page 8 of 19

iii. Reddish brown coloured abrasion irregular shape in right
submendibular region placed 1 cm obliquely downwards (lateral
interior) to the 2nd wound of size 2 X 1.5 cm.

iv. Reddish brown coloured abrasion, oval shape placed on right side of
neck measuring 7 cm from the right mastoid and 5 cm from midline at
the level of thyroid of size 2.5 X 1.5 cm.

v. Reddish brown coloured abrasion placed on left side of upper part of
neck 2 cm interior and medial to the left mastoid of size 1.5 X 1 cm.
vi. Abrasion, reddish brown coloured over right side of pelvic area in the
lateral aspect of waist region of size 1.5 cm X 1 cm.

vii. Reddish brown coloured abrasion of size 1.5 cm X 1 cm in the right
lower back placed 2 cm horizontally from midline.

11. Rajinder Tiwari in his statement under Section 313 Cr.P.C. stated
there were no strangulation marks on the neck of deceased. Around 5:30-
5:45 A.M. on 9th February, 2005, deceased alongwith Sanjay Tiwari and her
parents came to his house. He was sleeping in his godown nearby. His
younger daughter Dimple came to him and told him that the deceased was
unwell, those people had come and asked him also to come. When he went
there, TSR had come and deceased, her mother, Sanjay Tiwari and Raj
Kumar, friend of Sanjay Tiwari, were seated in the TSR and they went away.
He sat in his house. He did not know what happened thereafter.

12. DW-1 Smt. Shakuntala Devi, resident of the house opposite that of the
accused persons, stated that on 9th February, 2005 at about 5.30 A.M., a lady
(whose name she did not remember) was brought by her father, mother and
Sanjay Tiwari. She went to fetch milk and when she returned, she saw public

Crl.A Nos. 1396/2012 134/2013 Page 9 of 19
gathered. She did not know what happened thereafter. In her cross-
examination, she stated that Rajinder Tiwari had told her to give evidence
and had told her what she had to depose.

13. DW-2 Shivaji Singh, former tenant of Rajinder Tiwari, stated that on
9th February, 2005 at about 5.30-6 A.M., father of the deceased and Sanjay
Tiwari brought the deceased from her parental house. The deceased was
unwell. Doctor came to the house and said that the condition of deceased
was serious and she should be taken to the hospital. In the evening, he was
informed that the deceased had died.

14. DW-3 Sanjeev Sharma stated that he was the husband of sister of
Rajinder Tiwari. On 9th February, 2005, Dimple (sister of Sanjay Tiwari)
came to call him at around 5:45-6:00 A.M. The deceased was with Mohini
(mother of Sanjay Tiwari) who was making the deceased drink water. Dr.
Ajay was checking the pulse of the deceased. The deceased was taken to the
hospital in a TSR. At about 9:00-9:30 A.M., the accused persons along with
the deceased and her family came and after half an hour police came and
took the accused persons and the dead body away.

15. DW-4 Rajender Yadav stated that around 5:30-5:45 A.M. when he
was in front of the house of Rajinder Tiwari, Sanjay Tiwari was coming
holding a fair complexioned lady. When he enquired as to what had
happened to her, Sanjay told him that she was ill. He did not know what
happened thereafter.

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16. DW-5 Bhagwan Singh stated he was plying rickshaw to transport
goods of Rajinder Tiwari for the last 15-20 years and he used to stay in the
godown of Rajinder Tiwari. He further stated that on the day of incident,
Rajinder Tiwari was in his godown. He had taken the goods in the rickshaw

Crl.A Nos. 1396/2012 134/2013 Page 10 of 19
to Surya Colony, Haryana at around 8:00 A.M.

17. Essential ingredients for the prosecution to prove for an offence
punishable under Section 304B IPC are (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; (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.

18. From the evidence of the prosecution witnesses it is proved beyond
reasonable doubt that the deceased got married to Sanjay Tiwari on 25 th
February, 2001 and died on 9th February, 2005. Thus the period of marriage
between the deceased and Sanjay Tiwari was less than 7 years. Further
from the evidence of Dr. Sudipta Ranjan Singh who exhibited the
postmortem report Ex.PW5/A it is evident that cause of death of the
deceased was asphyxia due to manual strangulation of neck which was
sufficient to cause death in ordinary course of nature. Thus, the deceased
died an unnatural death.

19. Though the case of the defence witnesses as deposed to by DW-2 and
DW-3 is that the father of the deceased and Sanjay Tiwari brought the
deceased from her parental home to the matrimonial home in the morning of
9th February, 2005 however the fact remains that these two witnesses live in
the neighbourhood of the appellant and have deposed, on the basis of the
facts seen by them in the early morning of 9th February, 2005 from their
residence. They could have only deposed seeing the deceased in the
company of Sanjay Tiwari and her parents at or near the matrimonial home

Crl.A Nos. 1396/2012 134/2013 Page 11 of 19
and not that the deceased was brought from the parental home to
matrimonial home. Further in cross examination, father of the deceased
clarified that when the alleged incident took place, the deceased was at her
matrimonial home and when they reached the matrimonial home on receipt
of the information from the daughter of the appellant, they found their
daughter lying on the staircase whereafter they along with Sanjay Tiwari
took her to the hospital in auto rickshaw. From the evidence of the
prosecution witnesses which is not contradicted by cogent evidence of
defence, it has been proved that unnatural death of the deceased occurred in
her matrimonial home.

20. The two ingredients of Section 304B IPC having been satisfied, this
Court is now required to advert to the remaining two ingredients i.e. whether
the deceased was subjected to harassment for demand of dowry and soon
before the death. This Court in the decision reported as
MANU/DE/3997/2010 Riyazuddin Vs. State Govt. of NCT of Delhi
following the decision in Kans Raj Vs. State of Punjab Ors. held that
‘soon before’ is a relative term and in a case of continuous course of
harassment, one solitary incident immediately preceding the death is not
required to be proved. It was held:-

“6. I find no merit in the contention of the learned counsel for
the Appellant that the prosecution has not been able to prove that
soon before death the deceased was subjected to cruelty in
relation to demand of dowry. “Soon before” is a relative term to
be considered under specific circumstances of each case. The
prosecution is required to prove that there is a proximate and
live link between the effect of cruelty based on dowry demand
and the consequential death. In a case of persistent demand and
repeated harassment on that count, the proximate and live link
can be said to be proved by the prosecution. In every case the

Crl.A Nos. 1396/2012 134/2013 Page 12 of 19
same is not required to be proved by proving a solitary incident
immediately prior to the incident.
In Kans Raj vs. State of
Punjab and others (2000) 5 SCC 207 it was held:

“15. It is further contended on behalf of the respondents that
the statements of the deceased referred to the instances could
not be termed to be cruelty or harassment by the husband
soon before her death. “Soon before” is a relative term which
is required to be considered under specific circumstances of
each case and no straightjacket formula can be laid down by
fixing any time-limit. This expression is pregnant with the
idea of proximity test. The term “soon before” is not
synonymous with the term “immediately before” and is
opposite of the expression “soon after” as used and
understood in Section 114, Illustration (a) of the
Evidence
Act. These words would imply that the interval should not be
too long before the time of making the statement and the
death. It contemplates the reasonable time which, as earlier
noticed, has to be understood and determined under the
peculiar circumstances of each case. In relation to dowry
deaths, the circumstances sowing the existence of cruelty or
harassment to the deceased are not restricted to a particular
instance but normally refer to a course of conduct. Such
conduct may be spread over a period of time. If the cruelty or
harassment or demand for dowry is shown to have persisted,
it shall be deemed to be “soon before death” if any other
intervening circumstance showing the non-existence of such
treatment is not brought on record, before the alleged such
alleged treatment and the date of death. It does not, however,
mean that such time can be stretched to any period.
Proximate and live link between the effect of cruelty based on
dowry demand and the consequential death is required to be
proved by the prosecution. The demand of dowry, cruelty or
harassment based upon such demand and the date of death
should not be too remote in time which, under the
circumstances, be treated as having become stale enough.”

21. Once the prosecution proves that the deceased faced continuous

Crl.A Nos. 1396/2012 134/2013 Page 13 of 19
harassment, the Court is mandated to draw a presumption under
Section
113B of the Indian Evidence Act which the accused has to rebut. Supreme
Court in the decision reported as (2011) 11 SCC 359 Bansi Lal Vs. State of
Haryana held-

“18. In such a fact situation, the provisions of Section 113-B of
the Evidence Act, 1872 providing for presumption that the
accused is responsible for dowry death, have to be pressed in
service. The said provisions read 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 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.”

(emphasis supplied)
“19. It may be mentioned herein that the legislature in its wisdom
has used the word “shall” thus, making a mandatory application
on the part of the court to presume that death had been
committed by the person who had subjected her to cruelty or
harassment in connection with any demand of dowry. It is unlike
the provisions of
Section 113-A of the Evidence Act where a
discretion has been conferred upon the court wherein it had been
provided that court may presume abetment of suicide by a
married woman. Therefore, in view of the above, onus lies on the
accused to rebut the presumption and in case of
Section 113-B
relatable to
Section 304-B IPC, the onus to prove shifts
exclusively and heavily on the accused. The only requirements
are that death of a woman has been caused by means other than
any natural circumstances; that death has been caused or
occurred within 7 years of her marriage; and such woman had
been subjected to cruelty or harassment by her husband or any
relative of her husband in connection with any demand of dowry.

Crl.A Nos. 1396/2012 134/2013 Page 14 of 19

20. Therefore, in case the essential ingredients of such death
have been established by the prosecution, it is the duty of the
court to raise a presumption that the accused has caused the
dowry death. It may also be pertinent to mention herein that the
expression “soon before her death” has not been defined in
either of the statutes. Therefore, in each case, the Court has to
analyse the facts and circumstances leading to the death of the
victim and decide if there is any proximate connection between
the demand of dowry and act of cruelty or harassment and the
death. (Vide T. Aruntperunjothi v. State [(2006) 9 SCC 467 :
(2006) 2 SCC (Cri) 528 : AIR 2006 SC 2475] ;
Devi Lal v. State
of Rajasthan [(2007) 14 SCC 176 : (2009) 1 SCC (Cri) 785 : AIR
2008 SC 332] ;
State of Rajasthan v. Jaggu Ram [(2008) 12 SCC
51 : (2009) 1 SCC (Cri) 317 : AIR 2008 SC 982] , SCC p. 56,
para 13;
Anand Kumar v. State of M.P. [(2009) 3 SCC 799 :
(2009) 2 SCC (Cri) 28 : AIR 2009 SC 2155] and
Undavalli
Narayana Rao v. State of A.P. [(2009) 14 SCC 588 : (2010) 1
SCC (Cri) 1466 : AIR 2010 SC 3708] )”

22. Mother of the deceased who appeared as PW-3 in the witness box
deposed that whenever her daughter used to visit their house she used to
complain that her husband, father-in-law and mother-in-law used to harass
her. She used to complain that her father in law i.e. the appellant herein used
to taunt her under the influence of liquor that they had not given sufficient in
the marriage. Further father and brother of the deceased spoke about a
specific incident against the appellant Rajinder Tiwari in respect of demand
of ₹1.5 lakhs for purchase of Tata Sumo Car which they refused to pay. It is
also deposed to by the witness Jamadar Ojha that the appellant threatened
that in case he did not pay the amount, he would get his daughter divorced
from her husband and the words used were “agar tum mujhe paisa nahi doge
toh tumari ladki ko chudwa dunga”. In the course of examination it has been
further revealed that the deceased was tortured, beaten, abused and often not

Crl.A Nos. 1396/2012 134/2013 Page 15 of 19
provided food. After the deceased gave birth to the second daughter, her in-
laws left the deceased at her parental home and brought her to the
matrimonial home in January, 2005. Further on 8 th February, 2005, the elder
daughter of the deceased was left at the parental home of the deceased and
on the intervening night of 8th and 9th February, 2005 she was manually
strangulated. Despite extensive cross-examination of the prosecution
witnesses it has not been elicited that the deceased was not meted out by
cruelty during her stay in the matrimonial home.

23. Defence of the appellant is that he was not present at home at the time
of incident. He has taken this plea in his statement under
Section 313
Cr.P.C. and DW-5 has also deposed in this regard. Even the prosecution
witnesses have not stated that when they reached the matrimonial home of
the deceased, Rajinder Tiwari was present except for the statement of brother
of deceased who stated that Rajinder Tiwari also accompanied them in the
auto rickshaw. It is not the case of the appellant that he was not residing at
the matrimonial home. His defence is that he was at his godown at night
which was nearby the house. Neither the appellant nor DW-5 have given the
time when the appellant reached and left the godown. The time since death
as per the postmortem report is one day from 11.15 am on the 10th February,
2005. However, the parents of the deceased were informed at 5.00 am on 9 th
February, 2005. Thus, the incident took place anytime in the intervening
night of 8th and 9th February, 2005. From a cumulative reading of the
prosecution and defence evidence, it cannot be held that the whole night,
appellant was not in his house.

24. Thus, it is required to be considered whether the non-presence of
appellant Rajinder Tiwari at the matrimonial home even for a brief period

Crl.A Nos. 1396/2012 134/2013 Page 16 of 19
when the parents of the deceased reached absolves him for offence
punishable under
Section 304B IPC. As noted above, the appellant Rajinder
Tiwari and other co-accused including Sanjay Tiwari had not been convicted
for offence punishable under
Section 302/34 IPC and in the absence of any
leave to appeal filed by the State or the complainant, this Court in the present
appeals cannot consider appellant’s conviction for offence punishable under
Section 302 IPC. There is no definite evidence on record that when the
deceased that manually strangulated, the appellant was not at home. Even
otherwise “unnatural death” an ingredient of offence punishable under
Section 304B IPC contemplates any kind of death other than under normal
circumstances including suicide and homicide. The four ingredients of
offence punishable under
Section 304B IPC having been proved by the
prosecution based on the continuous cruelty and harassment caused to the
deceased, conviction of appellant Rajinder Tiwari for offences punishable
under
Sections 304B/498A IPC is upheld.

25. As noted above, appellant Rajinder Tiwari has been awarded
maximum sentence for offence punishable under
Section 498A being three
years rigorous imprisonment however for offence punishable under
Section
304B IPC, he has been awarded rigorous imprisonment of seven years which
is the minimum sentence prescribed.

26. The legal position on the scope of interference in an appeal for
enhancement of sentence is well settled. Only if the sentence awarded by the
trial court is grossly inadequate or unconscionably lenient or flea bite, the
High Court would interfere in exercise of its jurisdiction under
Section 378
Cr.P.C and enhance the sentence. Supreme Court in the decision reported as
AIR 1955 SC 778 Bed Raj Vs. State of UP held-

Crl.A Nos. 1396/2012 134/2013 Page 17 of 19

“(4) Now, though no limitation has been placed on the High
Court’s power to enhance it is nevertheless a judicial act and,
like all judicial acts involving an exercise of discretion, must be
exercised along well-known judicial lines. The only question
before us is whether those lines have been observed in the
present case.

(15). A question of a sentence is a matter of discretion and it is
well settled that when discretion has been properly exercised
along accepted judicial lines, an appellate court should not
interfere to the detriment of an accused person except for very
strong reasons which must be disclosed on the face of the
judgment; see for example, the observations in
Dalip
Singh v. State of Punjab [1954 SCR 145 at 156] and
Nar
Singh v. State of Uttar Pradesh [(1955) 1 SCR 238 at 241] . In a
matter of enhancement there should not be interference when the
sentence passed imposes substantial punishment. Interference is
only called for when it is manifestly inadequate. In our opinion,
these principles have not been observed. It is impossible to hold
in the circumstances described that the Sessions Judge did not
impose a substantial sentence, and no adequate reason has been
assigned by the learned High Court Judges for considering the
sentence manifestly inadequate. In the circumstances, bearing all
the considerations of this case in mind, we are of opinion that the
appeal (which is limited to the question of sentence) should be
allowed and that the sentence imposed by the High Court should
be set aside and that of the Sessions Court restored. Ordered
accordingly.”

27. It is trite law that awarding minimum sentence prescribed for an
offence cannot be held to be a shockingly or unconscionably lenient sentence
unless the facts of the case on the basis of which conviction is based show a
very dastardly manner of commission of offence. Further, Supreme Court
has time and again upheld orders on sentence of imprisonment for a period
of seven years awarded for offence punishable under
Section 304B IPC.

Crl.A Nos. 1396/2012 134/2013 Page 18 of 19

(See Satbir Singh Ors. Vs. State of Haryana (2005) 12 SCC 72, Uday
Chakraborty Ors. Vs. State of West Bengal (2010) 7 SCC 518, Bachni
Devi Anr. Vs. State of Haryana (2011) 4 SCC 427 and Vijay Pal Singh
Ors. Vs. State of Uttarakhand (2014) 15 SCC 163).

28. Considering the evidence on record proved by the prosecution and the
same having not been rebutted by the defence, this Court finds no illegality
in the impugned judgment of conviction. As discussed above, sentence of
rigorous imprisonment for a period of seven years cannot be said to be
unconscionably lenient or flea bite. Thus, there is no ground to interfere in
the impugned order of sentence as well.

29. Consequently, both the appeals are dismissed. Appellant Rajinder
Tiwari will undergo the remaining sentence. Appellant Rajinder Tiwari
whose sentence was suspended for a period of eight weeks vide order dated
11th April, 2017 shall surrender to custody on completion of the interim bail
to undergo the remaining sentence.

30. Copy of this order be sent to Superintendent Central Jail Tihar for
updation of the Jail record.

31. Trial Court record be returned.

(MUKTA GUPTA)
JUDGE
JUNE 01, 2017
‘v mittal’

Crl.A Nos. 1396/2012 134/2013 Page 19 of 19

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