* 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
Crl.Appeal No.614/2001 Page4 of 16
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
Crl.Appeal No.614/2001 Page5 of 16
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 thatCrl.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
Crl.Appeal No.614/2001 Page15 of 16
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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