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Rakesh Etc. vs State on 15 January, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CRL.A. 298/2004

Reserved on : 28.11.2018
Date of Decision : 15.01.2019

IN THE MATTER OF:
RAKESH ETC. ….. Appellants
Through : Mr. H. P. Aditya, Advocate.

Versus
STATE ….. Respondent
Through : Ms. Aashaa Tiwari, APP.

CORAM:
HON’BLE MS. JUSTICE HIMA KOHLI
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

MANOJ KUMAR OHRI, J.

1. The present appeal arises out of the judgment on the conviction
dated 24.03.2004 and the order on the sentence dated 27.03.2004 in
Sessions Case Nos. 03/2003 and 68/2003 in FIR No.604/2002 under
Sections 498A/304B, P.S. Uttam Nagar registered at the instance of the
complainant, Bhure Ram, father of the deceased, Anju.

2. Appellant No.1 Rakesh, is the husband of the deceased, appellant
No.2 Ram Lakhan, is the father-in-law of the deceased, appellant No.3 Raj
Kumar, is the brother-in-law (jeth) of the deceased, appellant No.4
Somwati (wife of appellant No.3) is the jethani of the deceased and the
appellant No.5, Somwati (wife of appellant No.2), is the mother-in-law of
the deceased. All the appellants have been convicted for the offences
punishable under
Sections 498A/304B IPC and have been sentenced to
undergo imprisonment for life under
Section 304B. They have been further

Crl.A.298/2004 Page 1 of 20
sentenced to undergo RI for 2 years under
Section 498A and to pay a fine
of Rs.1,000/- each, and in default, they have been directed to further
undergo RI for 6 months each. All the appellants have jointly filed the
present appeal.

3. As per the prosecution case, all the appellants were living jointly at
H.No.104/6, Defence Enclave, Mangal Bazar, Uttam Nagar, New Delhi.
The deceased, Anju was also living with her family comprising of her
father, mother and brother in Delhi. As per the wish of both the families,
Anju was married to Rakesh on 27.12.1999 at Shanti Kunj Ashram,
Haridwar and after the ‘Gona Ceremony” was performed on 24.01.2000,
she went to her above matrimonial home. It is the stand of the prosecution
that Anju had expired on 19.08.2002 at her matrimonial home due to
consumption of ‘Aluminum Phosphide’.

4. The investigation started with the information recorded in DD 14A
(Ex. PW-7/A) on 19.08.2002, at 6.45 pm in P.S. Uttam Nagar. The
contents of DD 14A are as follows:-

“6:45 PM it was reported by one Ram Lakhan s/o
Dwarika Parsad that “H. No.104/6 Part II, Defence
Enclave, Mohan Garden, Mangal Bazar Vijay Diary
ke samne Balaji Chowk ke aage ek aurat hamen
pareshan kar rahe hai”.

When the PCR reached the spot, they found a lady in an unconscious
state. On enquiry, they came to know that name of the lady was Anju. HC
Bodhraj from the PCR got Anju admitted in the DDU hospital.

5. On 19.08.2002, when Bhure Ram, father of the deceased, returned
home at about 9:25 PM, he was told by his son that he had received a
telephonic call that Anju was admitted in DDU Hospital in a serious

Crl.A.298/2004 Page 2 of 20
condition. Within 5 minutes, another call was received by Bhure Ram and
he was told by some police official that Anju had expired and was asked
to reach P.S. Uttam Nagar. The MLC (Ex.PW1/A) records that Anju was
brought and admitted in DDU Hospital by HC Bodh Raj and she was
declared ‘brought dead’. Dr Manoj Nagpal (PW-17) conducted the Post
Mortem examination on 19.08.2002, at 9 pm and the cause of death was
kept pending for the viscera report. Later, he gave an opinion that Anju’s
death was caused due to consumption of ‘Aluminium Phosphide’.

6. On 20.08.2002, inquest proceedings were conducted by the SDM
Sh.Vijay Khanna (PW-10), who recorded the statements of Bhure Ram,
father of the deceased (Ex. PW-10/D) as well as of Malti Devi, mother of
the deceased (Ex. PW-10/C). In their statements, the parents levelled
allegations of dowry demand and ill-treatment of the deceased at the hands
of the appellants. Since the death had occurred within 7 years of the
marriage, FIR No.604/2002 was registered under
Sections 498A/304B
IPC at PS Uttam Nagar and investigations proceeded. The CFSL report
(Ex PW 15/A) dated 07.01.2003 pertaining to viscera examination showed
presence of Aluminum Phosphide.

7. After completion of the investigation, the chargesheet was filed on
18.11.2002 and charges were framed by the learned ASJ, Delhi against the
appellants No.1 and 2, Rakesh and Ram Lakhan under
Sections 304B and
498A IPC on 18.02.2003. On 14.05.2003, after the arrest of appellants
No.3, 4 and 5, Raj Kumar, Somwati (sister in law) and Somwati (mother-
in-law), a supplementary challan was filed and similar charges were
framed by the learned ASJ, Delhi against the said appellants. All the
appellants had pleaded not guilty.

Crl.A.298/2004 Page 3 of 20

8. During the trial, a total of 19 witnesses were examined, including
the material witnesses, namely, Sh. Bhure Ram, father of the deceased
(PW-13); Malti Devi, mother of the deceased (PW-16) and Shailesh,
brother of the deceased (PW-14). The Post Mortem Report (Ex. PW-17/A)
was proved by Dr. Manoj Nagpal (PW-17). The CFSL report (Ex. PW-
15/A) was proved by Dr. Ravinder K Jain (PW-15); MLC report (Ex. PW-
1/A) was proved by Dr. Vineet K Soni (PW-1). Sh. Vijay Khanna, SDM
Punjabi Bagh who appeared as PW-10, proved the inquest proceedings
(Ex. PW-10/B) and the statements of Bhure Ram and Malti Devi recorded
by him as Ex. PW-10/D and Ex. PW10/C, respectively. HC Bodh Raj, who
had brought and got Anju admitted in DDU Hospital, was examined as
PW-6. The Investigating Officer, Deepak Malik was examined as PW-19.
The deceased had filed a complaint on 21.06.2002 before the CAW Cell,
Pitam Pura, Delhi, the same was proved by PW-12 Ct. Parveen and is
exhibited as Ex. PW-12/A. The other witnesses were essentially witnesses
relating to the arrest, seizure and other investigations.

9. The appellants were examined under Section 313 Cr.P.C. and chose
not to lead any evidence in their defence.

Material Witnesses:

10. PW-13, Bhure Ram has deposed that Anju was married to Rakesh
on 27.12.1999 at Shanti Kunj, Haridwar. At the time of marriage, he had
given dowry articles as per his financial and social status. Anju’s ‘Gona
Ceremony’ was performed on 24.01.2000. He further stated that after
about 15 days of marriage, when the deceased came to her paternal home,
she told him that she was being harassed by Rakesh, Raj Kumar, Ram
Lakhan, Somwati (mother-in-law) and Somwati (Sister-in-law); that the

Crl.A.298/2004 Page 4 of 20
appellants were demanding dowry from her and that a sum of Rs.20,000/-
was specifically demanded by all of the appellants. He stated that after
about 3 months, his daughter had gone back to her matrimonial home and
at that time, Rs. 16,000/- was arranged by him and given to her. He further
stated that after about 3 to 4 days, Anju again came back to her parental
home and told him that she had paid the said amount of Rs.16,000/- to her
brother-in-law Raj Kumar; that she was sent back with a direction that she
should bring more money, since her father was a wealthy person in the
estimation of the appellants. Thereafter, he along with 2-4 persons, went
to meet the in-laws of his daughter to express his inability to pay any more
money. However, the appellants insulted and humiliated him and asked
him to leave the house. The deceased continued to stay at her parental
home. On 21.6.2002, she filed a complaint (Ex. PW-12/A) before the
CAW Cell, Delhi. The appellants moved bail applications which came up
for hearing on 06.08.2002. The said hearing was attended by the deceased,
her parents and brother. In the said bail proceedings, the deceased showed
her apprehension in going back to her matrimonial home on account of
threats extended to her life. After the assurance of the Court, she went to
her matrimonial home on 06.08.2002. PW-13 also stated that her daughter
had remained at her parental home for about two years, till 06.08.2002 and
during that time, the appellants had never enquired about her.

11. PW-16 Malti Devi, mother of the deceased deposed on similar lines
as Bhure Ram. She deposed that after about two months of the marriage,
Anju came to her parental home and told her that Rakesh had demanded
money from her since he had to start some business. Anju informed them
that a sum of Rs.20,000/- was demanded from her. They arranged a sum
of Rs.16,000/- from someone and gave that money to Anju and after about

Crl.A.298/2004 Page 5 of 20
2-3 days, she went to her matrimonial home on her own, since her husband
did not have the time to come to their house. That after about ten days,
Anju again came to her parental home and told her that the sum of
Rs.16,000/- was paid to Raj Kumar, (brother-in-law) and that she was
beaten by all the appellants and was turned out of her matrimonial home.
Anju told her that Raj Kumar uttered that since her father was a wealthy
person who could pay Rs.16,000/-, then she should bring more money for
him. Anju stayed with her for a period of two years after this. She deposed
on similar lines as PW-13 with regard to the period after Anju came back
to her parental home.

12. Shailesh, brother of the deceased appeared as PW-14 and also
deposed on similar lines as PW-13 and PW-16.

13. Arguments have been heard from both sides. Learned defence
counsel has urged that all the ingredients of
Section 304B IPC are not
proved; that
Section 113B of the Indian Evidence Act is not applicable;
that from a reading of the testimonies of PW-13, PW-14 and PW-16, who
are the family members of the deceased, no specifics have been given as
to when and by whom the alleged dowry demand of Rs.20,000/- was made
and also as to when and to whom the amount of Rs.16,000/- was allegedly
paid; that though the deceased had died in less than three years of her
marriage, she had spent almost 2 years and 4 months at her parental home;
that the complaint made by the deceased before the CAW Cell, while she
was at her parental home, is also silent about any threats to her life.
Learned counsel also contended that the allegations with respect to the
statement made by the deceased before the learned ASJ in the bail
proceedings of the appellants, are not supported by what was actually

Crl.A.298/2004 Page 6 of 20
recorded in the order sheet of 06.08.2002; that there are material
improvements and contradictions in the statements of the witnesses. The
findings of the trial court where
Section 32 of the Indian Evidence Act has
been invoked for treating the complaint filed by the deceased before the
CAW Cell, as well as her statement seeking guarantee of the Court as a
‘dying declaration’, have also been assailed. Ld. defence counsel has
placed reliance on
Kans Raj v. State of Punjab Ors., (2000) 5 SCC 207
and Sham Lal Etc. v. State of Haryana Etc. (1997) 9 SCC 759 in support
of the pleas taken above.

14. On the other hand, learned APP has supported the judgment of the
trial court and has relied on the definition of ‘Cruelty’ under
Section
498A IPC and of ‘Dowry Death’ in
Section 304B IPC. It has been argued
that all the witnesses were consistent about the dowry demand raised by
the appellants. She has also placed reliance on Kans Raj (supra) to urge
that mere lapse of time by itself would not provide a defence to an accused,
if the course of conduct relating to cruelty or harassment is shown to have
existed earlier in time.

Analysis:

Whether charge under Section 304B IPC is made out:

15. The essential ingredients for prosecution under Section 304B 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;

Crl.A.298/2004 Page 7 of 20

(iv) such cruelty or harassment must be for, or in
connection with, demand for dowry.

16. In the instance case, it is an admitted fact that both the parties were
residents of Delhi and the marriage of deceased with the appellant No.1,
Rakesh was solemnized on 27.12.1999. The prosecution has proved that
Anju had died on 19.08.2002 which was within 7 years of her marriage.
She had died at her matrimonial home because of consumption of
‘aluminum phosphide’. As such, ingredients No.(i) and (ii) are satisfied.

17. To examine if ingredients (iii) and (iv) are satisfied in the facts of
the present case, it would be appropriate to appreciate the evidence of the
material witnesses i.e., PW-13, PW-14 and PW-16, adduced before the
trial court as well as the complaint dated 21.06.2002 filed by Anju before
the CAW Cell, under the following three categories: –

a. Whether any dowry was demanded at the time of marriage;

b. Whether any dowry was demanded after the marriage till
06.08.2002;

c. Whether any dowry was demanded after 06.08.2002.

a. Demand of Dowry at the time of marriage

18. On a conjoint reading of the testimonies of PW-13 (Bhure Ram),
PW-16 (Malti Devi) and PW-14 (Shailesh), it stands proved that the
deceased was married to Rakesh on 27.12.1999 and at that time, articles
were given according to their financial and social status, on various dates
which is evident from the ‘list’ of articles. The ‘list’ was annexed with the
complaint (Ex. PW-12/A) filed by Anju on 21.06.2002, before the CAW
Cell. A careful scrutiny of the records show that no witness has stated that

Crl.A.298/2004 Page 8 of 20
there was any demand of dowry at the time of the marriage. There is no
evidence that articles as specified in the above ‘list’ were given pursuant
to any demand raised by the appellants. A perusal of the complaint dated
21.06.2002 filed by the deceased before the CAW Cell also shows that
there is no allegation made therein about any dowry demand made by the
appellants at the time of the marriage.

b. Demand of Dowry after the marriage till 06.08.2002

19. According to the testimonies of PW13, PW14 PW16 as well as
the complaint dated 21.06.2002 made by the deceased, it has come on
record that within about 15 days of her marriage, Anju had come back to
her parental home and informed about the demand of dowry made by all
the appellants. She also mentioned about the specific demand of
Rs.20,000/-. The witnesses have consistently stated that dowry demand of
Rs 20,000/- was partially met on payment of Rs 16,000/- and all this had
happened within 3-6 months reckoned from 27.12.1999 i.e., date of
marriage.

20. Mr H.P. Aditya, learned defence counsel has vehemently argued
that the ‘purpose of demand’ has either not been stated, or has been
improved upon by the witnesses. He has pointed out that whereas PW-13
is silent about the purpose of the demand, PW-14 has stated that the said
amount was demanded by Rakesh to run a shop of fridge A/C repair and
as per PW-16, all the appellants had demanded the said amount to start a
business. He has also pointed out the contradictions on this aspect. To
support his argument, he has relied upon Appasaheb Vs. State of
Maharashtra (2007) 9 SCC 721.

Crl.A.298/2004 Page 9 of 20

21. We do not need to dwell upon the import of the said decisions as the
Supreme Court has overruled Appasaheb (supra) in Rajinder Singh Vs
State of Punjab (2015) 6 SCC 477, on the aspect of ‘purpose of demand’
and observed as follows:-

“20. Given that the statue with which we are dealing
must be given a fair, pragmatic, and common sense
interpretation so as to fulfil the object sought to be
achieved by Parliament, we feel that the judgment in
the Appasaheb case followed by the judgment of Vipin
Jaiswal do not state the law correctly. We, therefore,
declare that any money or property or valuable
security demanded by any of the persons mentioned
in
Section 2 of the Dowry Prohibition Act, at or before
or at any time after the marriage which is reasonably
connected to the death of a married woman, would
necessarily be in connection with or in relation to the
marriage unless, the facts of a given case clearly and
unequivocally point otherwise.” (emphasis added)
c. Demand of Dowry after 06.08.2002

22. We propose to treat 06.08.2002 as a watershed since the testimonies
of the witnesses reveal that it was on the said date that the deceased had
gone to her matrimonial home from the Court premises itself. A perusal of
case record shows that after Anju had gone to her matrimonial home on
6.8.2002, there is no evidence of any contact made by her with her parents.
None of the witnesses have stated anything about any demand, cruelty or
harassment on the part of any of the appellants during this period. As per
the prosecution case, the deceased had consumed poison on 19.8.2002.
There is no evidence of any demand of dowry having been made by any
of the appellants from 6.8.2002 to 19.8.2002.

23. Before we arrive at a conclusion as to whether ingredients No.(iii)
and (iv) of
Section 304B IPC are satisfied and whether the presumption

Crl.A.298/2004 Page 10 of 20
under
Section 113B of Indian Evidence Act is attracted in the facts of the
present case, it would be profitable to refer to some decisions of the
Supreme Court on this aspect.

24. In Kans Raj (supra), the Supreme Court considered the term ‘soon
before’ and expressed the following view:-

’15….”Soon before” is a relative term which is
required to be considered under specific circumstances
of each case and no strait-jacket formula can be laid
down by fixing any time-limit. This expression is
pregnant with the idea of a 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 between
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 showing 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 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.’ (emphasis
added).

Crl.A.298/2004 Page 11 of 20

25. In Sham Lal (supra) it was observed by the Supreme Court that:

“11. It is imperative, for invoking the aforesaid legal
presumption, to prove that “soon before her death” she
was subjected to such cruelty or harassment. Here,
what the prosecution achieved in proving the most was
that there was persisting dispute between the two sides
regarding the dowry paid or to be paid, both in kind and
in cash, and on account of the failure to meet the
demand for dowry, Neelam Rani was taken by her
parents to their house about one and a half years before
her death. Further evidence is that an attempt was made
to patch up between the two sides for which a panchayat
was held in which it was resolved that she would go
back to the nuptial home pursuant to which she was
taken by the husband to his house. This happened about
ten to fifteen days prior to the occurrence in this case.
There is nothing on record to show that she was either
treated with cruelty or harassed with the demand for
dowry during the period between her having been
taken to the parental home and her tragic end.

(emphasis added)

12. In the absence of any such evidence it is not
permissible to take recourse to the legal presumption
envisaged in
Section 113-B of the Evidence Act. That
rule of evidence is prescribed in law to obviate the
prosecution of the difficulty to further prove that the
offence was perpetrated by the husband, as then it would
(emphasis added)

26. In Sher Singh v State of Haryana (2015) 3 SCC 724 the Supreme
Court has stated as below:-

“16…..We are aware that the word “soon” finds place
in
Section 304-B; but we would prefer to interpret its
use not in terms of days or months or years, but as
necessarily indicating that the demand for dowry
should not be stale or an aberration of the past, but
should be the continuing cause for the death
under
Section 304-B or the suicide under 306 IPC.
Once the presence of these concomitants is established

Crl.A.298/2004 Page 12 of 20
or shown or proved by the prosecution, even by
preponderance of possibility, the initial presumption of
innocence is replaced by an assumption of guilt of the
accused, thereupon transferring the heavy burden of
proof upon him and requiring him to produce evidence
dislodging his guilt, beyond reasonable doubt.”
(emphasis added)

27. In Pyare Lal v State of Haryana (1997) 11 SCC 552, the facts
of the case were that the deceased had married the appellant therein
on 27.04.1983 and thereafter, certain demands were raised including
transfer of house and shop. Subsequently, a demand of Rs.10,000/-
was made which was partially fulfilled. In spite of this, the deceased
was not kept in her matrimonial home. She stayed at her father’s
house for two years after which a compromise was reached on
1.12.1987 and the deceased went back to her matrimonial home. Her
attempt to come back on account of harassment, was scuttled by her
father. On 19.12.1987, while at her matrimonial home, the deceased
had committed suicide by consuming insecticide. In this factual
background, it was held by the Supreme Court that:-

“4……Whatever demands of dowry arose after the
marriage, over which there were differences between
the parties were settled or got receded when the
deceased resumed co-habitation with her husband on 2-
2-1987 the day following when Ex.PG was written.
There is no whisper thereafter of any demand of dowry”.

28. To a similar effect, are the decisions of the Supreme Court in
Satpal v State of Haryana in (1998) 5 SCC 687 and Surinder Singh
v State of Haryana (2014) 4 SCC 129. In Rajinder Singh (supra), it
was held that:

Crl.A.298/2004 Page 13 of 20

“24….Days or months are not what is to be seen. What
must be borne in mind is that the word “soon” does not
mean “immediate”. A fair and pragmatic construction
keeping in mind the great social evil that has led to the
enactment of
Section 304-B would make it clear that
the expression is a relative expression. Time-lags may
differ from case to case. All that is necessary is that
the demand for dowry should not be stale but should
be the continuing cause for the death of the married
woman under
Section 304-B.” (emphasis added)

29. In Baljinder Kaur vs. State of Punjab (2015) 2 SCC 629, the
Supreme Court was dealing with a case where the deceased therein
(Sharanjit Kaur) had married the appellant (Pritam Singh) in January 1997
and after two months of the marriage, there was a dowry demand including
that of a ‘Gold karra’ by her in-laws. The deceased had come to her
parental house and after one month of the demand, she had gone back to
her matrimonial home. Again, after about one month she came back to her
maternal house narrating the same demand of Karra. Two days prior to her
death, the accused had taken her back to her matrimonial home where on
25.8.1997, she had died of poisoning. It has been held by the Supreme
Court that :

“23…….In our considered view, the alleged demand of
Gold Karra about two months after the marriage cannot
be said to constitute a proximate live link with the death
of deceased Sharanjit Kaur and the conviction of the
appellant under
Section 304-B cannot be sustained.”.

30. In State of Karnataka v Dattaraj Ors. (2016) 12 SCC 331, the
Supreme Court observed that:-

“19. Insofar as the demand of Rs.20,000/- for the
purchase of agricultural land is concerned, it is
apparent that the same was allegedly made when

Crl.A.298/2004 Page 14 of 20
Dattaraj was in Dubai. The said demand was allegedly
made by Ningesh (respondent – accused no.2), the
father of Dattaraj, when he had gone to leave Savita at
her maternal home. Dattaraj is stated to have returned
to India from Dubai eight to ten months, after the above
demand. A female child was born to Savita about a year
after the return of Dattaraj to India. After the birth of
the female child, Savita had remained in her maternal
house, for about four to five months. Therefore, even if
the above oral allegation is accepted as correct, it was
a demand made about two years before the occurrence.
The same was too remote to the occurrence, and
therefore, would not satisfy the requirement of “soon
before her death” contemplated under
Section
304-B(1) IPC of the Indian Penal Code.”

(emphasis added)

31. We have carefully analysed the evidence on record and note that the
only demand of dowry that has surfaced is of Rs. 20000/-. The said
demand was made in the first 3-6 months of the marriage. After the said
demand was partially met, although the deceased was asked to bring more
money, yet no specific subsequent demand has come on record. The
deceased continued to stay at her parental home for more than 2 ¼ years
even though some efforts were made by her family members to work out
a reconciliation with her in-laws. The deceased was at her parental home
when she had filed the complaint (Ex PW12/A) on 21.6.2002, before the
CAW Cell. In this complaint also, the deceased had stated that she had not
heard from her in-laws for the last 2 years. We find that there was a
complete hiatus in the relations between the deceased and the appellants
for more than 2 years, till about 6.8.2002. Even after 6.8.2002, when the
deceased had joined back at her matrimonial home, there is no evidence
on record that any demand of dowry was made. The trial court has relied
on
Section 32 Indian Evidence Act to treat the complaint dated 21.06.2002
filed by the deceased before the CAW Cell and the statement made by her

Crl.A.298/2004 Page 15 of 20
before the court on 6.8.2002, as deposed by witnesses (PW-13, PW-14 and
PW-16), as her ‘dying declarations’. However, the complaint filed by the
deceased is silent about any threats to her life at the hands of the appellants.

Even if the statement of the witnesses as to what had transpired in the court
during the bail proceedings on 6.8.2002 are accepted, the apprehension
expressed by the deceased related to the time period when she was thrown
out of her matrimonial home in the first few months of the marriage i.e.,
within 3-6 months reckoned from 27.12.1999. The said apprehension
cannot be held to be a cause of her death or a ‘circumstance of the
transaction’ which had resulted in her death.

32. In these facts and circumstances, we find that the ingredients of
“soon before” are absent in the present case. The demand of Rs. 20,000/-
made in first 3-6 months of the marriage, cannot be said to constitute a
proximate and live link with the death of Anju on 19.8.2002 which was
after 2¼ years. Apart from above, there are also inconsistencies found in
deposition of the witnesses as to who had demanded the sum of
Rs.20,000/-. Whereas PW-13 has attributed the said demand to all the
appellants, PW-14 has attributed the same to the appellant No.1, Rakesh
only. PW-14 was confronted with his earlier statement made during the
investigation where he had not specifically named Rakesh. Similarly, in
her deposition PW-16 had attributed the demand of Rs. 20,000/- to the
appellant No.1, Rakesh alone while in her earlier statement made to the
SDM and the Police, the name of the appellant No.3, Raj Kumar was found
mentioned. The presumption under
Section 113B Indian Evidence Act can
come into play once the prosecution proves all the ingredients of
Section
304B IPC, which as noted above, are woefully lacking in the present case.
As a result, the conviction of the appellants under
Section 304B IPC

Crl.A.298/2004 Page 16 of 20
cannot be sustained and the impugned judgment is set aside to the said
extent.

33. Though the ingredients of the offence under Section 304B IPC are
found to be lacking against all the appellants, it is to be seen from the
evidence on record as to whether they are guilty for the offence of cruelty.
The Trial Court has convicted the appellants for the offence under
Section
498A IPC. The word “Cruelty” is defined in
Section 498A IPC as follows:

“498A. Husband or relative of husband of a woman
subjecting her to cruelty- whoever, being the husband or
the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall
also be liable to fine.

Explanation.- for the purposes of this Section, “cruelty”
means-

(a) any willful conduct which is of such a nature as
is likely to drive the woman to commit suicide or to
cause grave injury or danger to live, limb or health
(whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment
is with a view to coercing her or any person related to
her to meet any unlawful demand for any property or
valuable security or is on account of failure by her or
any person related to her to meet such demand.”

34. The testimony of the witnesses and the complaint dated 21.06.2002
filed by Anju before the CAW Cell narrates the treatment meted out to her
while she was at her matrimonial home. The said complaint was proved
by PW-12, Ct Praveen. Even, the appellants did not deny filing of the
above complaint, though they had disputed its contents. As per the

Crl.A.298/2004 Page 17 of 20
deposition of PW-13, PW-14 and PW-16, the deceased had come back
within 15 days of her going to the matrimonial home when she complained
about the demand of dowry raised by all the appellants. PW-16 has stated
that despite the fact that the deceased had paid Rs. 16,000/- to the appellant
No.3, Raj Kumar, all the appellants had taunted her to bring more dowry
and she was again sent back to her parental home. PW-16 has stated about
the beatings given to the deceased by the appellants. Efforts were made by
the family of the deceased to patch up but they were humiliated at the
hands of the appellants. Even when a girl child was born 1½ years before
Anju’s death, no efforts were made by the appellants to take her back to
the matrimonial home. Both, PW-13 PW-14 have supported the
testimony of PW-16 on these material aspects.

35. In her complaint dated 21.06.2002 (ExPW-12/A), Anju had stated
in detail about the acts of cruelty, taunts, harassment and beatings given to
her by all the appellants. She specifically named all the appellants therein.
She had stated that in spite of giving Rs.16000/- to the appellant No.3, Raj
Kumar, he had spent the same instead of using it. When she had objected,
Rajkumar made false accusations at her. All the appellants asked her to
bring more money as they felt her father was a wealthy person. She was
taunted and also beaten by all the appellants. Anju had stated that, while
she was at her matrimonial home, she was not provided with any food and
was kept hungry for 2-3 days, for not bringing dowry. She had also stated
that all her dowry articles were lying with the appellants and had prayed
for return of same. It is noteworthy that the said complaint was filed by the
deceased only two months before her death.

Crl.A.298/2004 Page 18 of 20

36. The appellants did not even bother to inform Anju’s family about
her serious condition on 19.08.2002. HC Bodhraj who was examined as
PW-6 stated that he was on PCR duty on the said date and on reaching the
spot, he had found Anju lying in an unconscious state. It was he who had
admitted her in an injured condition in DDU Hospital. As per the MLC,
Anju was brought dead. ASI Satbir Singh who appeared as PW-7, was the
one who had informed the parents of Anju about her being admitted in the
hospital.

37. All the above facts when examined collectively, clearly go to prove
that all the appellants had treated the deceased with cruelty. Therefore,
their conviction under
Sections 498A IPC is maintained.

Conclusion:

38. The appeal is partly allowed. The appellants’ conviction under
Section 304B IPC is quashed and set aside. The appellants’ conviction
under
Sections 498A IPC and the order of sentence are, however, upheld.
For the offence under
Sections 498A IPC, each of the appellants have been
sentenced to undergo RI for 2 years and to pay a fine of Rs.1,000/-, and in
default, they have been directed to further undergo RI for 6 months each.
From a perusal of the Nominal Rolls available on record, it appears that
the appellant No.1, Rakesh has already undergone sentence of almost 6
years; the appellant No.2, Ram Lakhan has undergone sentence of almost
3 years; the appellant No.3, Raj Kumar has undergone sentence of almost
4 years; and both the appellant Nos.4 5 i.e. Somwati w/o Raj Kumar
Somwati w/o Ram Lakhan have undergone sentence of 1 year and 7
months each.

Crl.A.298/2004 Page 19 of 20

39. The offence had taken place nearly 16 ½ years ago. The appellants
No.1, 2 and 3, Rakesh, Ram Lakhan and Raj Kumar have already
undergone the sentence which is beyond the awarded sentence of 2 years
under
Section 498A IPC. Their fine and default sentences are set aside. As
far as the appellants No.4 and 5, namely Somwati w/o Raj Kumar and
Somwati w/o Ram Lakhan are concerned, keeping in mind their roles and
taking into account their nominal rolls, their sentence is modified to the
period already undergone. This is, however, subject to deposit of fine of
Rs 1000/- by each of them, if not already paid, within 1 month from the
date of the judgment. In the event, the fine is not deposited, both the
appellants No.45 shall surrender and will undergo the default sentence
of RI for 6 months. Subject to deposit of fine, their personal bonds and
surety bonds are discharged. All the appellants will fulfill the requirement
of
Section 437-A Cr.P.C. to the satisfaction of the Trial Court, at the
earliest.

40. The trial court record be sent back together with a certified copy of
this judgment.

(MANOJ KUMAR OHRI)
JUDGE

(HIMA KOHLI)
JUDGE

JANUARY 15th, 2019/sm

Crl.A.298/2004 Page 20 of 20

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