Ashok vs State (Gnct Of Delhi) on 1 June, 2017

$~R-4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 1st June, 2017

+ CRL.A. 433/2013

ASHOK ….. Appellant
Represented by: Mr. Habibur Rehman, Adv.
(DHCLSC) and Mr. Bharat
Chugh, Adv. (Amicus Curiae).

versus

STATE (GNCT OF DELHI) ….. Respondent
Represented by: Mr. Ravi Nayak, APP for State
with SI Jasmer Singh, PS
Jahangirpuri.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1. Ashok challenges the impugned judgment dated 28th April, 2012
convicting him for offences punishable under Sections 498A/304B IPC and
the order on sentence dated 9th August, 2012 directing him to undergo
rigorous imprisonment for a period of two years and to pay a fine of `1,000/-
for offence punishable under
Section 498A IPC and rigorous imprisonment
for a period of seven years for offence punishable under
Section 304B IPC.

2. Learned counsel for the appellant contends that the only eye-witness
on the spot was Sunita. She categorically stated that she was residing in the
said house and when the appellant came home, the room was closed from
inside and the deceased committed suicide by hanging herself from the fan.

Crl.A. 433/2013 Page 1 of 13

She did not depose about any quarrel or any untoward incident that took
place between the deceased and the appellant soon before the death of the
deceased. The allegations of the mother and brother of the deceased that
there was demand of dowry are vague and general in nature. No previous
complaint in respect of demand of dowry or harassment was lodged. Further
it is self contradictory that on one hand allegation of demand of dowry was
made by mother of the deceased and on the other hand the deceased was not
being permitted to go to her parental home. Though the mother stated that
she lodged a complaint to the police however the same has not been proved.
Mother of the deceased made material improvements in her testimony. She
deposed that she took a loan of ₹2000/-. The witness has been duly
confronted with her earlier statement wherein this fact was not recorded.
The essential ingredients of offence punishable under
Section 304B IPC i.e.
harassment in relation of demand of dowry soon before death having not
been proved, the appellant is entitled to be acquitted.

3. Learned amicus curiae Mr. Bharat Chugh, in addition submits that the
allegation is that ₹2000/- were taken from the parents of the deceased for her
treatment. The same does not fall in the definition of ‘dowry’ as the same is
not in relation to marriage. The allegation that the deceased was given burn
injuries by cigarette butts is also exaggerated as the same is not supported by
the postmortem report. Further the allegation that the deceased was not given
food is falsified by the postmortem report which notes that the deceased was
“strong and well built”. Deceased has suicidal tendency and had earlier also
attempted to commit suicide as is admitted by prosecution witnesses. The
deceased was a hypersensitive person and could not handle the normal wear
and tear of family life. Reliance is placed on the decision of Supreme Court

Crl.A. 433/2013 Page 2 of 13
reported as (1994) 1 SCC 73 State of West Bengal Vs. Orilal Jaiswal Anr.

4. Learned APP for the State on the other hand contends that the defence
of the appellant in his statement under
Section 313 Cr.P.C. was that the
deceased and the appellant had performed love marriage and the mother of
the deceased was not happy thus relations were strained. However this
defence has neither been proved during cross-examination of the prosecution
witnesses nor by leading defence evidence. The brother of the deceased has
specifically stated that he had gone to meet the deceased two days prior to
Rakshabandan and at that time, demand for ₹5000/-, colour TV and clothes
for his family members was made by the appellant. The fact that ₹2000/-
were taken for the treatment of deceased does not absolve the appellant from
the allegation of demand of dowry.

5. Process of law was set into motion on 7th August 2009 when
information was received on wireless around 2:03 P.M. about the
commission of suicide by hanging of a woman at 76/2, Bhalaswa, Harijan
Colony which was recorded by W/HC Kaushal vide DD No. 24A (Ex.PW-
3/A). The aforesaid DD entry was assigned to ASI Bhagwat Singh who
along with Ct. Khem Chand went to the spot and found that the room was
bolted from inside. From the window, they saw that a lady whose name was
revealed as Pinki w/o Ashok was hanging from the roof of the room with a
saree type cloth. In the meantime, ACP Raj Kumar also reached the spot.
Photographs were taken from outside (Ex. PW-14/A1 to Ex. PW-14/A4).
Crime team came to the spot and prepared the report Ex. PW-16/A. The door
of the room was broken. Dead body was brought down and sent to the
mortuary. ACP Raj Kumar prepared the site plan (Ex.PW-19/A) at the
instance of ASI Bhagwat Singh. Ashok was arrested vide arrest memo

Crl.A. 433/2013 Page 3 of 13
Ex.PW-13/C and his personal search was conducted vide memo Ex.PW-
13/D. ACP Raj Kumar made search for co-accused namely Sandeep,
Ramesh, Smt. Sundri and Niranjan but they could not be traced.
Subsequently, SDM, Model Town was informed. Mr. Praveen, Executive
Magistrate reached the spot and found that the body was not lying there.
From there he went to mortuary, BJRM Hospital but the body was not found
there. Next day, he went to BJRM hospital and inspected the body of
deceased Pinki. He recorded the statements of Balbir and Amar vide Ex.
PW-6/B and Ex. PW-12/B respectively. He also recorded the statements of
other witnesses namely Sunita, Ashok Kumar and Dhani Ram vide Ex.PW-
12/C, Ex. PW-12/D and Ex. PW-12/E respectively. He filed an application
(Ex.PW-12/F) and request form (Ex.PW-12/G) for conducting the post
mortem of deceased. Thereafter, he recorded statement of Laxmi and Balbir.

6. FIR No. 437/2009 (Ex. PW-2/A) was registered under Section
498A/
304B at PS Jahangirpuri on the statement of Laxmi (Ex.PW1/A) who
stated that she was the wife of Balbir Singh and resident of Ramgarh. Her
daughter got married two years ago and since then the accused used to keep
her daughter hungry and did not give her any money for medical treatment.
Her daughter had boils on her chest, but they didn’t get her treated and she
had to pay for that. They used to harass her daughter for not having a son and
used to make demand for money. They didn’t give food to her
granddaughter also. When her daughter went for work, they did not look
after her granddaughter. They had sent away Ramesh’s wife also after
beating her. Her daughter had cigarette burns on her hands and they had
complained to the police also. The boy’s family had beaten them up also four
times that’s why they shifted to Ramgarh. Two days prior to the festival of

READ  Anuran Rastogi & Ors vs State Of U.P. And Anr on 7 February, 2007

Crl.A. 433/2013 Page 4 of 13
Rakshbandhan, they told her son Pintu to get `5000/-. She sought legal
action against Ashok, his mother and brother.

7. PW-1 Smt. Lakshmi deposed in conformity with her earlier statement
made before the Executive Magistrate. She further stated that the deceased
Pinki was given beatings by Ashok, her mother-in-law Sundri, her father-in-
law Niranjan and brothers-in-law Sandeep and Ramesh. Whenever she and
her husband used to go to their house to persuade them, they were also given
beatings by the accused persons. When the deceased had boils on her chest,
she was not provided treatment for the same. Ashok had asked her to bring
money for treatment. She, therefore, took `2,000/- on interest and gave it to
Ashok for the treatment of the deceased. Ashok used to quarrel with the
deceased Pinki after consuming liquor. During her cross-examination, she
stated that she had not made any written police complaint prior to the death
of her daughter. She admitted that the deceased had fled with one Balwant.
She voluntarily stated that the deceased had fled away after her marriage
with Ashok as she was forced to take the step due to excesses by Ashok.
She denied the suggestion that Ashok and his family members had not made
any dowry demand to her or her daughter at any point of time. She also
denied the suggestion that the deceased was in the habit of attempting
suicide.

8. PW-4 Pintoo, brother of deceased, stated that about two days before
Rakshabandhan, he had gone to the house of the deceased. Ashok questioned
him as to why he had come. When he told him that he had come to meet his
sister, Ashok asked him to bring `5,000/-, colour TV and clothes for his
family members. When the deceased objected to this, he slapped her. During
his cross-examination, he admitted that the deceased had jumped in the drain

Crl.A. 433/2013 Page 5 of 13
before marriage. He also admitted that deceased had eloped with Balwant.

9. PW-6 Balbir, father of deceased, deposed that he gave dowry in the
marriage of his deceased daughter as per his capacity. Behavior of Ashok
with the deceased for the initial 2-3 months was good but thereafter he
started beating her and asked her to bring money from him. Sometimes, he
used to pay `100/-, `200/- and sometimes he used to get ration for her house.
Further, since the deceased had given birth to a daughter instead of a son,
Ashok was not happy and used to taunt her for the same. He would not even
provide milk and food to the deceased and his granddaughter. He ill treated
her, and when she fell sick, he refused to get the deceased treated. Further,
he used to burn the deceased with cigarettes and beedis.

10. PW-5 Gajender Kumar, who was doing finance work, deposed that
Balbir Singh had taken a friendly loan of `2,000/- from him in the month of
July 2009 which was later returned to him. He did not know for what
purpose Balbir Singh had borrowed the money. During his cross-
examination, he denied the suggestion that he had given the money to Balbir
Singh on interest for making payment to in-laws of Pinki.

11. PW-7 Sunita deposed that on 7th August, 2009 she had gone to 76/2
Harijan Colony, Village Bhalaswa on the occasion of Rakshabandan.
Around 1:30 P.M., on hearing the noise of Ashok, she came out of the room.
Ashok was saying that his wife was not opening the door from inside. After
seeing from the jangla, he told that his wife had committed suicide by
hanging herself with a chunni.

12. PW-8 Kallu deposed that Ashok was living in one room with the
deceased in his house as tenant since last four months prior to the
occurrence. Occasionally there used to be quarrel between Ashok and the

Crl.A. 433/2013 Page 6 of 13
deceased.

13. PW-20 Dr. V.K.Jha, Medical Officer BJRM Hospital deposed that on
9th August 2009, he conducted the postmortem on the dead body of the
deceased and exhibited the post mortem report as Ex. PW-20/A. As per the
report, following external injuries were observed on the dead body of the
deceased:

“Ligature material saree was present around the neck. An obliquely
placed pressure abrasion mark present on front and sides of neck
going upwards and backwards towards posterior hair line. The length
of the ligature mark is 28 cm long and breadth 2 cm placed 7 cm
below chin on front and 8 cm, 5 cm below right and left ear lobule.
The skin over the ligature mark is hard and parchmentised.

On dissection of side tissue underneath the ligature mark is pale and
glistening.”

14. On internal examination, the head, brain and other visceral organs
were congested. Post mortem findings were consistent with ante mortem
ligature hanging. Time since death was approximately two days. As per the
subsequent opinion for cause of death Ex.PW20/C, it was opined to be due
to asphyxia as a result of ligature pressure over neck structures produced by
ante mortem ligature hanging.

READ  W.Kalyani vs State Tr.Insp.Of Police & Anr. on 1 December, 2011

15. As per the FSL report (Ex. PX), on chemical and TLC examination,
metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids,
barbiturates, tranquilizers and pesticides could not be detected in exhibits ‘1a’
(stomach and piece of small intestine with contents, kept in a sealed jar), ‘1b’
(pieces of liver, spleen and kidney, kept in a sealed jar) and ‘1c’ (blood
sample volume approx 5 ml. kept in a sealed bottle) [viscera of deceased].

Crl.A. 433/2013 Page 7 of 13

16. Essential ingredients required to be proved as foundational facts by the
prosecution 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.

17. In the present case, the appellant and deceased were married around
two years prior to the incident thus less than 7 years of the marriage. The
cause of death of the deceased was asphysia as a result of ligature pressure
over neck structures produced by antemortem ligature hanging. Thus, the
two essential ingredients that death was unnatural and was within seven
years of marriage as required under
Section 304B IPC are fulfilled.

18. In respect of the third and fourth ingredient that whether the deceased
was subjected to cruelty soon before the death and the same was in
connection with demand of dowry are concerned, brother of the deceased
clearly deposed that two days prior to Rakshabandhan when he went to visit
his sister, the appellant demanded ₹5000/-, color TV and clothes for his
family members. Further mother of the deceased deposed that, the deceased
was not given food or money to buy medicine by the appellant, his parents
and brothers; deceased was given beating by them and they used to demand
dowry from her. She used to give money even for basic necessities such as
food and to purchase milk and other household articles. The mother of the
deceased was confronted with her earlier statement Ex.PW-1/A with regard
to her deposition that ₹2,000/- was taken by her on loan and given to the

Crl.A. 433/2013 Page 8 of 13
appellant and her daughter for her treatment. Though it is noted in the
evidence that these facts have not been stated in the previous statement
however perusal of Ex.PW1/A which is statement of mother of the deceased
recorded by the SDM clearly shows that the mother of the deceased stated
that she was a rag picker and used to pick papers, she had taken ₹2000/- on
loan with interest and given to her daughter as her in-laws used to keep her
in a difficult situation. She also stated that she had told the fact to the police
one year before the incident however she did not lodge any FIR and that the
appellant used to beat her almost daily.

19. Sunita is only a neighbour and merely because she did not depose that
minutes or hours before the deceased hanging herself there was a quarrel
between the appellant and the deceased, the same does not prove that there
was no harassment for demand of dowry soon before death.
Section 304B
IPC does not contemplate that the harassment should be within minutes or
hours or few days of the time since death but a reasonable period prior to the
death when deceased is subjected to cruelty is sufficient to show the live link
which in the present case is proved as two days prior to the death, specific
demand from the brother of deceased was made. In the decision reported as
MANU/DE/3997/2010 Riyazuddin Vs. State Govt. of NCT of Delhi this
Court following the decision in Kans Raj Vs. State of Punjab and Others
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

Crl.A. 433/2013 Page 9 of 13
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 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.”

Crl.A. 433/2013 Page 10 of 13

20. Merely because the postmortem report noted that the deceased was
strong and well built would not belie the deposition of the mother of the
deceased that she was not given food because the same was occasional and
not that the deceased was never given food. Further non-mentioning of burn
injuries in the postmortem report also does not show that the deceased was
not meted out such a cruelty.

21. As regards the contention that the deceased was a hypersensitive
woman, it may be noted that the facts that the deceased had eloped with one
Balwant and that prior to her marriage she had jumped in a drain do not carry
any weight. Unsatisfied in the matrimonial home, the deceased took the step
of leaving the matrimonial home and joining the company of another person.
This fact further fortifies that the deceased was not happy in the matrimonial
home. Similarly the incident wherein the deceased fell in the drain has not
been proved as to whether the same was accidental or not. Moreover, no
evidence has been led by the defence to show that the deceased was suffering
from any depression as contended or that her behaviour was not normal.

22. The ingredients of Section 304B IPC having been fulfilled from the
foundational facts proved by the prosecution, this Court is mandated to draw
the presumption raised under
Section 113B of the Indian Evidence Act,
which the appellant has failed to rebut. In the decision of the Supreme Court
reported as (2011) 11 SCC 359 Bansi Lal Vs. State of Haryana it was 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

Crl.A. 433/2013 Page 11 of 13
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.

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

Crl.A. 433/2013 Page 12 of 13
(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] )”

23. 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 and order on sentence.

24. In view of the above discussion, this Court finds no illegality in the
impugned judgment of conviction and order on sentence. Appeal is
dismissed. Personal bond and surety bond of the appellant are discharged.
The appellant whose sentence was suspended during pendency of the appeal
vide order dated 2nd April, 2013 shall surrender to custody to undergo the
remaining sentence.

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

26. Trial Court Record be returned.

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

Crl.A. 433/2013 Page 13 of 13

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