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Rajesh Kr. Jain vs State on 20 February, 2017

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Judgment delivered on : February 20th, 2017

+   CRL.A. No.570/2000

    RAJESH KR. JAIN                                          ..... Appellant
                           Through       Mr.Dayan Krishnan, Sr. Adv. with
                                         Mr.Vivek Sharma, Adv.  Mr.Neeraj
                                         K. Sharma, Adv.

                                versus

    STATE                                                  ..... Respondent
                           Through:      Mr.Panna Lal Sharma, APP for the
                                         State with SI Mahesh Chand, PS
                                         Lajpat Nagar.
                                         Mr. V.K. Malik, Adv. with Mr.Rahul
                                         Raj Malik, Adv. for the complainant.


    CORAM:
    HON'BLE MR. JUSTICE P.S.TEJI

                                     JUDGMENT

P.S.TEJI, J.

1. Aggrieved by the judgment of conviction dated 16.08.2000
passed by the learned Additional Sessions Judge, Delhi convicting the
appellant-Rajesh Kumar Jain for the offence punishable under Section
498A
/304-B of the Indian Penal Code (hereinafter referred to as
I.P.C.) and order on sentence dated 18.08.2000, whereby the appellant
has been sentenced to undergo rigorous imprisonment for ten years for
the offence under Section 304-B IPC and rigorous imprisonment for a
Crl. A. No. 570/2000 Page 1 of 10
period of three years and fine of Rs.3,000/- for the offence under
Section 498A IPC and in default of payment of fine the appellant was
to further undergo simple imprisonment for a period of three months,
the present appeal has been filed by the appellant.

2. Factual matrix emerging from the record is that the present case
was registered on the basis of the statement of Dr.P.K. Jain, father of
the deceased. In his statement made to the SDM, Dr.P.K. Jain had
stated that his daughter Sunita was going to become a doctor.
Marriage between Sunita and accused Rajesh Kumar Jain was
solemnized on 02.05.1993 and on 29.06.1993, Sunita died. It was
alleged that death of the deceased was not an accidental death but was
a murder. It was further alleged that the father of the deceased got
suspicious about the death of his daughter on seeing her dead body
and thus he insisted on post mortem of the dead body. After post
mortem, the cause of death of deceased was given as asphyxia
resulting from manual smothering and strangulation. It was also
alleged that the engagement between the deceased and accused was
performed on 10.11.1992 and thereafter accused complained to the
complainant and to his deceased daughter that the ring given to him
and gold chain given to his mother were of light weight. On
27.04.1993, during Teeka ceremony, the complainant gave
Rs.51,000/- cash to the accused, one gold chain and ring besides
clothes to him and his family members. On 28.04.1993, the accused
had made a telephonic call and demanded from the son of the
complainant a Hero Honda motorcycle and VCR. Next day, the

Crl. A. No. 570/2000 Page 2 of 10
complainant telephoned the accused and informed that he would be
unable to give the motorcycle and VCR demanded and that they had
already purchased gold jewellery and his budget had been exhausted.
It was further alleged that when Sunil, brother of the deceased Sunita
went to bring her, he found her sad and on asking her about the same
he was informed that the accused complained to her many times about
the dowry given being inadequate and of sub-standard. On
07.05.1993, Sunil brought Sunita to Bhopal and accused also
accompanied them and at that time, accused was made to understand
and he assured that he would not harass Sunita in the future.
Thereafter, on one occasion Sunita was admitted in Mool Chand
Hospital, New Delhi and during conversation, she informed her father
that accused used to treat her inhumanly. On 29.06.1993, some friend
of accused rang up the father of the deceased and informed about
Sunita’s death. When complainant made a telephonic call to the
hospital, he was asked to come to Delhi. On 30.06.1993, complainant
along with his wife and son Anil reached Delhi at Mool Chand
Hospital, where he was told that Sunita died as a result of electric
shock, whereas uncle of accused told him that Sunita had died due to a
sudden fall caused by weakness. When complainant went inside the
room of Sunita, he noticed a big spot of blood on the floor. When
complainant insisted on seeing the dead body of Sunita, he was asked
by the accused and his uncle to first go to the police station and make
a statement that there was no dispute between the parties and that he
did not wish to get the post mortem on the dead body. Thereafter, on
seeing the dead body of Sunita, the complainant noticed that her face

Crl. A. No. 570/2000 Page 3 of 10
was swollen, there were injury marks and blood and froth were
coming out from her nose. The complainant subsequently wrote a
letter to SDM that his daughter had been murdered.

3. On the basis of statement made by the complainant before the
SDM, the SDM directed the registration of a case under Section 498-
A/302 IPC against the accused. On the basis of the same, FIR
No.238/1993 under Sections 498-A/302 IPC was registered. Accused/
appellant was arrested on 16.07.1993. After completion of
investigation, charge sheet was filed under Section 498A/302/304-B
IPC.

4. The learned trial court framed the charge under Section
498A
/304-B of the IPC to which the accused/appellant pleaded not
guilty. In support of its case, prosecution examined twenty witnesses.

5. After conclusion of prosecution evidence, statement of the
appellant was recorded under Section 313 Cr.P.C. in which he denied
the entire case of prosecution and claimed innocence. No evidence in
defence was adduced by the accused/appellant.

6. The appellant has filed the instant appeal challenging the
aforesaid judgment on conviction as well as order on sentence. During
pendency of the present appeal, the sentence imposed upon the
appellant was suspended vide order dated 10.10.2000.

7. Argument advanced by the learned Senior Counsel for the
appellant is that there was no evidence to show that there was any

Crl. A. No. 570/2000 Page 4 of 10
demand of dowry by the appellant. Before the death of the deceased,
neither the deceased nor any of her family member ever made any
complaint to any authority with regard to harassment or cruelty meted
out to the deceased on account of demand of dowry. The letters
written by the deceased were placed on record which showed that the
deceased was never subjected to any harassment or cruelty on account
of demand of dowry. It is further submitted that the appellant has
been wrongly convicted on the presumption that the deceased was
subjected to harassment soon before her death. At the time of death of
deceased, the appellant was present in the operation theatre, so there is
no possibility that the appellant had caused the death of the deceased.
He further submitted that the blood found at the spot was of a different
blood group than that of the appellant or deceased and the semen
stains of AB group found on the sanitary pad of the deceased suggests
intrusion by a third person and the said fact has not been investigated.

8. On the other hand, argument advanced by the learned APP for
the State is that there is sufficient evidence on record in the form of
testimony of father and other relatives of deceased to hold the
appellant guilty. There is enough material on record that the deceased
was harassed on account of demand of dowry and there is also
sufficient evidence to prove that she was subjected to harassment on
account of demand of dowry soon before her death. All the
ingredients of dowry death have been duly proved by the prosecution
before the trial court and the appellant has rightly been convicted.

9. Argument advanced by the learned counsel for the complainant

Crl. A. No. 570/2000 Page 5 of 10
is that the present case was registered after facing many hardships by
the complainant. The investigating officer of the case was not ready
to record the voluntary statement of the complainant. On regaining
the full mental status after seeing the dead body of his daughter, the
complainant made his statement to the SDM in which he had stated
that he was suspicious about the nature of death of his daughter. The
post mortem report also suggests that the deceased died a homicidal
death. It was further submitted that the present case is a murder case
but the trial court has awarded the punishment to the appellant under
dowry death. There is sufficient material on record to hold the
appellant guilty.

10. Arguments advanced by the learned Senior Counsel for the
appellant, learned APP for the State and learned counsel for the
complainant were heard. I have gone through their submissions and
meticulously perused the material available on record.

11. From the material placed on record, it is apparent that the
complainant had been making applications to get the case registered
under the relevant sections of the Code. It has come forth in the
statement of the complainant that after the receipt of information about
the death of his daughter when he reached Delhi, he was prevented
from voluntarily making any complaint to the police by the appellant
and his uncle (chacha). He has also stated that initially he was told by
the appellant that his daughter had died as a result of an electric shock
but the uncle of the appellant stated that the deceased died due to a
sudden fall caused by weakness. When the complainant wished to see

Crl. A. No. 570/2000 Page 6 of 10
the dead body of his deceased daughter, he was prevented from doing
so and asked by the appellant and his uncle first, to make a statement
to the police to the effect that he had no suspicion about the nature of
death of Sunita and that he did not wish to get the post mortem
conducted. But, on seeing the dead body of his daughter, he noticed
that her face was swollen, there were injury marks and blood and froth
were coming out from her nose. Thereafter, the complainant wrote a
letter to the SDM raising suspicion about the nature of death of his
daughter and that she might have been murdered.

12. In his statement made to the SDM, it is apparent that the
complainant, apart from the allegations of harassment and cruelty
meted out to the deceased on account of demand of dowry, also raised
suspicion about the nature of death of his daughter and insisted on
conducting post mortem on her dead body.

13. The post mortem report of the deceased shows that there were
several ante mortem injuries on different parts of the body i.e. face,
below the eye lid, upper lip, below the nose, teeth indentation marks,
cheek, neck, elbow, knees and arm. The post mortem report further
shows that the cause of death of the deceased was asphyxia resulting
from manual smothering and strangulation. It was also observed by
the doctor that all the injuries on the person of the deceased were ante
mortem in nature and recent in duration.

14. From the statement of the complainant, it is apparent that he had
noticed some unusual features on the dead body of his deceased

Crl. A. No. 570/2000 Page 7 of 10
daughter due to which he raised a suspicion about the nature of her
death. In the letter written by him to the SDM, he also raised the same
suspicion and asked for conducting post mortem on the dead body of
his deceased daughter. The post mortem report of the deceased also
shows that there were several injuries on the person of the deceased
and the cause of her death was asphyxia due to manual smothering and
strangulation.

15. The above circumstances brought on record clearly show that
there is suspicion about the nature of death of the deceased. As per
the post mortem report of the deceased, it was a homicidal death and
not a natural death or death caused by suicide. As mentioned in the
post mortem report, deceased died due to manual smothering and
strangulation which cannot be said to be a natural death or an act of
suicide. Manual smothering and strangulation have to be done by
some person other than the deceased.

16. Hon’ble Apex Court in the case of Satya Narayan Tiwari v.
State of U.P
. (2010) 13 SCC 689 has observed :

“Crimes against women are not ordinary crimes
committed in a fit of anger or for property. They
are social crimes. They disrupt the entire social
fabric. Hence, they call for harsh punishment.
Unfortunately, what is happening in our society is
that out of lust for money people are often
demanding dowry and after extracting as much
money as they can they kill the wife and marry
again and then again they commit the murder of
their wife for the same purpose. This is because of
total commercialization of our society, and lust for
Crl. A. No. 570/2000 Page 8 of 10
money which induces people to commit murder of
the wife. The time has come when we have to
stamp out this evil from our society, with an iron
hand.”

17. Further, in the case of Rajbir @ Raju and Anr. v. State of
Haryana
AIR 2011 SC 568, the Hon’ble Apex Court has directed all
trial Courts to ordinarily add Section 302 to the charge of Section
304B
, so that death sentences can be imposed in such heinous and
barbaric crimes against women.

18. Keeping in view the above mentioned facts and circumstances
and the law laid down by Hon’ble Apex Court, this Court is of the
considered opinion that this is a fit case where an alternate charge
under Section 302 IPC in addition to charge under Section 304-B IPC
is prima facie made out.

19. In view of the above discussion, the judgment of conviction
dated 16.08.2000 and the order on sentence dated 18.08.2000 passed
in the present case are set aside. The matter is remanded back to the
trial court concerned with the direction to frame an alternate charge
under Section 302 IPC in addition to charge under Section 304B IPC
and to pass the judgment afresh.

20. Before parting with the order, this Court would like to place it
on record by way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose of
disposing of the present appeal. Nothing contained in this order shall
be construed as expression of a final opinion on any of the issues of

Crl. A. No. 570/2000 Page 9 of 10
fact or law arising for decision in the case which shall naturally have
to be done by the Trial Court.

21. With the above observations, the present appeal stands disposed
of.

(P.S.TEJI)
JUDGE
FEBRUARY 20, 2017/dd

Crl. A. No. 570/2000 Page 10 of 10

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