* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. No.437/2001
Date of Decision : May 9th, 2017
SATYAWATI ORS ….. Appellant
Through: Mr.M.L. Yadav, Adv.
versus
STATE ….. Respondent
Through: Mr.Sundershan Joon, APP for the
State.
Insp.Uma Dutt, PS Mangol Puri.
CORAM:
HON’BLE MR. JUSTICE P.S.TEJI
JUDGMENT
P.S.TEJI, J
1. Aggrieved by the judgment of conviction dated 30.05.2001
convicting the appellants, namely, Smt.Satywwati, Shyam Sunder,
Kanhiya Lal, Subhash Chand and Smt.Malti finding them guilty
under Sections 304B and 498A/34 IPC and order on sentence dated
31.05.2001 vide which the appellants were sentenced to undergo
seven years rigorous imprisonment for the offence under Section
304B IPC and also to undergo one year rigorous imprisonment for
the offence under Section 498A IPC with fine of Rs.1,000/- each,
in default of payment of fine they were ordered to further undergo
Crl.A. No.437/2001 Page 1 of 13
simple imprisonment for one month, the present appeal has been
preferred.
2. The factual matrix emerging from the record is that on
21.04.1997, on receipt of DD No.17A, SI Sanwar Mal along with
Ct.Subash Chand reached at House No.Q-6/105, Mangol Puri
where a dead body of deceased Mithlesh was found lying at a
takhat. There were ligature marks on the front side and left hand
side of the neck of the deceased. It was revealed that the deceased
had committed suicide by hanging. One saree was produced by
appellant Malti which was seized. On 22.04.1997, SDM got the
post-mortem conducted on the dead body of the deceased. On
23.04.1997, statements of Jawahar Lal and Yogesh Kumar, father
and brother of the deceased respectively were recorded.
Thereafter, the SDM had ordered for registration of FIR.
3. In his statement, the complainant Jawahar Singh, father of
the deceased had stated that Mithlesh was married with appellant
Sham Sunder on 26.02.1995. In the marriage, he gave dowry
articles though no dowry was settled. After 2/4 months of
marriage, his daughter fell ill and came to his house. She told that
her in-laws used to tell her that she had brought insufficient dowry
and used to demand scooter or motorcycle. She also told that
accused Rajinder Kumar Kohli was having illicit relations with her
Crl.A. No.437/2001 Page 2 of 13
mother-in-law; he used to reside there; they used to take liquor; eat
meat and appellant Sham Sunder also used to take liquor. After
taking liquor, appellant Sham Sunder used to beat her and abuse
her and say that motorcycle was not given in the dowry. He used
to tell the deceased to bring scooter or cash in lieu thereof.
Deceased came to the house of the complainant; started weeping
and asked him to pay the cash or scooter else her husband, mother-
in-law and Rajinder Kumar Kohli would beat her. The complainant
paid Rs.15,000/- to his daughter. After two months, his daughter
called him again and stated that her husband and mother-in-law
used to harass her for dowry and demanded cash. In July 1996, his
daughter was pregnant but she was beaten up for demand of dowry
which led to a miscarriage. The deceased used to send letters to
the complainant demanding money; complaining against her
mother-in-law, husband, Malti and Kanhiya Lal that they used to
give beatings to her. Thereafter, accused persons and others came
to the house of the complainant and took the deceased. In the said
panchayat, they promised not to demand dowry and not to beat the
deceased. Thereafter also, the complainant received letters from
the deceased that she was being harassed on account of dowry and
the complainant had paid Rs.30,000/- in instalments. In February
1997, appellant Sham Sunder came to his house and demanded
Crl.A. No.437/2001 Page 3 of 13
Rs.40,000/- for running a factory and after mortgaging his
agricultural land, the complainant gave Rs.20,000/- to him. On
21.04.1997, the complainant received a call that his daughter
Mithlesh had expired.
4. During investigation, the police seized the letters allegedly
written by the deceased. After completion of investigation, charge
sheet was filed in the Court.
5. Charge under Sections 498A/304B/34 IPC was framed
against all the appellants to which they pleaded not guilty. The
prosecution had examined as many as fourteen witnesses, namely,
PW1 Bhagwan Singh, PW2 Yogesh Kumar, PW3 Rajinder Kumar,
PW4 Mohan Singh (also PW9), PW5 Jahwar Singh, PW6 Ramesh,
PW7 HC Ram Chander, PW8 Vinay Bhushan, PW10 Ct. Mahesh,
PW11 Dr.K.K. Goel, PW12 HC Naresh Kumar, PW13 Ct.Subash
and PW14 SI Sanwar Mal.
6. The statements of the accused persons were recorded under
Section 313 of the Cr.P.C. Accused persons did not examine any
witness in their defence.
7. The appellants were held guilty by the learned Additional
Sessions Judge vide judgment of conviction dated 30.05.2001 and
passed the order on sentence on 31.05.2001.
8. The grounds challenging the judgment of conviction is that
Crl.A. No.437/2001 Page 4 of 13
there is no iota of evidence against the appellants to substantiate
the charge against them. During the matrimonial life, the deceased
had been living with appellant Shyam Sunder and had been visiting
her parental home but neither she nor any of her family member
ever make any complaint regarding any demand of dowry or
harassment by the appellants. No independent witness from the
locality of the house of the appellants or from the house of the
deceased had been produced by the prosecution. The letters
produced on record by the prosecution allegedly written by the
deceased do not suggest any demand of dowry. It is further
submitted that there is no evidence on record to say that there was
demand of dowry or that the deceased was ever harassed or beaten
by any of the appellants for or in connection with demand of
dowry.
9. Per contra, arguments advanced by learned Additional
Public Prosecutor for the State are that the appellants have been
rightly held guilty under Sections 498A/304B IPC by the trial
court. The father as well as other relatives of the deceased have
duly supported the case of prosecution that the deceased was
subjected to cruelty and harassment on account of demand of
dowry by the appellants. There is sufficient evidence against the
appellants to hold them guilty for the offences of harassment on
Crl.A. No.437/2001 Page 5 of 13
account of demand of dowry and of dowry death.
10. Arguments advanced by the counsel for the appellants as
well as learned APP for the State were heard.
11. In his testimony, PW1 Bhagwan Singh had deposed that the
deceased was his real brother’s daughter. He was working in a
factory at 395, Gali No.6, Tuglakabad Extn. as a tailor. He used to
visit the deceased. Mithlesh told him that accused Satyawati had
relations with one Rajinder as husband and wife; they both used to
drink liquor together and Rajinder used to sleep with Satyawati;
PW1 produced the letters and photographs handed over to him by
Mithlesh and proved the same as Ex.PW1/1 and Ex.PW1/2.
12. PW2 Yogesh Kumar, brother of the deceased had deposed
that on 26.02.1995, his sister Mithlesh was married to accused
Sham Sunder. Whenever his sister used to come to their house, she
used to tell that her mother in law Satyawati was living with
Rajinder Kohli and used to take liquor with him. Sham Sunder
also used to take liquor with them. His sister was beaten by them.
He further deposed that all the accused persons used to demand
motor cycle and cash and used to harass his sister. His father
agreed to pay money in instalments of Rs.2,000/- or Rs.3,000/-.
Once, his father gave Rs.15,000/- to accused Sham Sunder to
purchase motor cycle. His sister used to write letters to them. In
Crl.A. No.437/2001 Page 6 of 13
the year 1996, his sister became pregnant and she was beaten and
the doctor informed that the child had died inside her womb. In the
month of December 1996, 10-12 persons including the accused
persons came from Mangol Puri and said that the sister of PW2
would be kept properly and would not be harassed. After one/two
months, they received a letter from Mithlesh and also by telephone,
she informed that she was being harassed and beaten and money
was being demanded. In February/March 1997, accused Sham
Sunder came to their house and demanded Rs.40,000/- for running
a factory. His father after mortgaging agricultural land gave
Rs.20,000/- to accused Sham Sunder.
13. PW3 Rajinder Kumar also made similar statement as that of
PW2.
14. PW4 (PW9) Mohan Singh was the neighbour of the
appellants. In his deposition, he had deposed that on 20.04.1997
when he was going to attend the call of nature and was passing
from the house of the appellants, he heard Rajinder Singh and
Satyawati saying to Mithlesh that she was asked to bring
Rs.40,000/- and why she had brought Rs.20,000/-. She was asked
to bring Rs.20,000/- more else she would be killed.
15. PW5 Jawahar Singh, father of the deceased had also deposed
on the same lines of PW2 and PW3. He deposed that he gave
Crl.A. No.437/2001 Page 7 of 13
Rs.2,000/- to his daughter on three occasions and Rs.4,000/- on
two occasions and Rs.15,000/- on one occasion. In February 1997,
accused Sham Sunder came to his house and demanded
Rs.40,000/-. This witness gave Rs.20,000/- to accused Sham
Sunder after mortgaging his land.
16. From the testimony of PW1 to PW5, it is amply clear that
the deceased was being harassed by the appellants for or demand of
dowry. In their testimony, these witnesses have deposed that after
the marriage of the deceased with the appellant Sham Sunder, 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 motorcycle or cash in lieu thereof 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 that Jawahar Singh, father of
the deceased gave Rs.2,000/- or Rs.3,000/- to the deceased on
several occasions. It is also stated by the witnesses and specifically
by PW5 Jawahar Singh that PW5 gave Rs.20,000/- to the appellant
Sham Sunder after selling his agricultural land.
17. 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
Crl.A. No.437/2001 Page 8 of 13
the appellants deserves to be upheld under Section 498A/34 IPC.
18. 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 the section of a statute. What is
needed is to find out whether the evidences brought on record
satisfy the ingredients thereof.
19. Necessary ingredients of dowry death as provided under
Crl.A. No.437/2001 Page 9 of 13
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.
20. As far as death of the deceased Mithlesh is concerned, it is
not in dispute that she died due to hanging which shows that the
death of the deceased was not under normal circumstances and was
due to the bodily injuries which fulfil the first ingredient for the
commission of offence under Section 304B IPC.
21. The second ingredient that death of the deceased had taken
place within seven years of her marriage with the appellant is
established from the evidence, as marriage had taken place on
26.02.1995 and her death took place on 21.04.1997 i.e. within three
years of her marriage.
22. 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 PW5 to prove
these ingredients. PW1 happened to be uncle of the deceased,
Crl.A. No.437/2001 Page 10 of 13
PW2 PW3 happened to be brothers of the deceased, PW4
happened to be neighbour of the appellants and PW5 happened to
be father of the deceased. The detailed discussion of their
testimony has already been made.
23. 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 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
appellant with the said harassment or cruelty meted out to the
deceased soon before her death.
24. The argument advanced by the learned APP for the State is
that Section 113B of the Indian Evidence Act leads to the
Crl.A. No.437/2001 Page 11 of 13
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.”
25. 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.
26. 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.
27. It has been brought on record that all the appellants remained
behind the bar before suspending their sentence by this Court as
evident from their nominal roll.
28. In view of the above discussion and the evidence discussed,
Crl.A. No.437/2001 Page 12 of 13
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.
29. However, the judgment of conviction and order on sentence
awarded to the appellants under Section 304B read with Section 34
IPC is set aside.
30. Apparently, the death of the deceased had taken place on
21.04.1997; the charge was framed on 02.03.1998; judgment of
conviction was passed on 30.05.2001; order on sentence was
passed on 31.05.2001; sentence of the appellants was suspended by
this Court in 2001/2002; the appellants have faced the protracted
trial for about 20 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 extent
already undergone by them. It is held accordingly.
31. The appeal is disposed of accordingly.
32. Pending application, if any, is also disposed of.
(P.S.TEJI)
JUDGE
MAY 09, 2017
dd
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