SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Ram Parkash @ Bittoo vs State on 21 December, 2018

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 1st November, 2018
Date of decision : 21st December, 2018

+ CRL.A.899/2002 CRL.M.A.35006/2018
RAM PARKASH @ BITTOO ….. Appellant
Through: Mr. Sumer Sethi and Ms. Dolly
Sharma, Advocates with Appellant in
person. (M:8860292911)
versus

STATE ….. Respondent
Through: Ms. Meenakshi Chauhan, APP with
SI Ranbir Singh (M:9899402748)
P.S. Nangloi.

CORAM:
JUSTICE PRATHIBA M. SINGH
JUDGMENT

Prathiba M. Singh, J.

1. The present appeal has been filed by the Appellant, Ram Parkash @
Bittoo challenging his conviction vide judgment and sentence dated 25th
January, 2002 under Section 304B and 498A read with Section 34 of the
Indian Penal Code. it is relevant to note that the trial court record, in the
present case, is not available. Repeated attempts were made to reconstruct
the record especially as the appeal was of the year 2002. However, the trial
court finally submitted a report saying that the record is not traceable in the
Tis Hazari Courts. Thus, the only record available is the judgment of the
trial court. The appeal is thus being decided merely on the basis of the
impugned judgement as no other record is traceable.

2. Ram Parkash was married to Smt. Vandna on 29th June, 1997. The

CRL.A.899/2002 Page 1 of 20
incident took place on 4th December, 1998. On 5th December, 1998, she died
an unnatural death.

3. The incident, as reported by the first witness who reached the spot i.e.
PW-4, Shri Gurmail Singh is that he was running a grocery shop in the
vicinity of the house where the accused and the deceased lived. In the
morning, between 10 a.m. to 10.30 a.m., while he was present in his shop,
he was informed of smoke rising from the house of the accused. He reached
the spot and found that the victim, Vandna was in flames and her child was
lying on a cot in the outside veranda of the house. At the time he reached the
premises, there was no one present in the house. He called the police and
then called the father of Smt. Vandna. By the time, the parents reached the
house she had been taken to Safdarjung Hospital. The victim gave three
statements. The first statement was given at 11.45 a.m. The second
statement was given in the afternoon and the third statement was given late
in the evening at about 8.10 p.m.

4. The first statement was given to the doctor, PW-14, Dr. H.K. Sharma
of K.G. Medical College, Lucknow who was posted as Senior Resident
Medical Officer in Safdarjung Hospital. He was the first doctor to examine
the victim when she was brought to the hospital in a burnt condition. The
MLC prepared by him was marked as Exhibit PW-14/A. In the first
statement which she made to the doctor, she informed him that she had
poured kerosene oil on herself and set herself on fire. This statement of PW-
14 is captured in paragraph 52 of the impugned judgment and is extracted
herein below: –

“52. As regards the first dying declaration to
PW-14 the same is very cryptic. PW-14, Dr.

CRL.A.899/2002 Page 2 of 20
H.K. Sharma merely writes on the MLC
EX.PW-14/A that the patient poured
kerosene oil on herself and set herself on
fire as informed by the patient. However, no
attempt is made to know the details of the
circumstances thereof. It is also not clear
whether PW-14 had ensured that the victim
injured was in fit state of mind at that time
and capable of telling the truth or even
trying to find out as to why she took such a
step. In the absence of any explanation of
the attending circumstances it is difficult to
believe that the victim/injured was in a free
state of mind to only come out with the
alleged fact of setting herself on fire.”

5. In the second statement, the victim spoke to her parents. In this
statement, she informed her parents that her mother-in-law had poured
kerosene oil on her and had lit the matchstick in the presence of her husband
and her brother-in-law. The third statement was given to PW-11, Shri B.S.
Jaglan, S.D.M., Punjabi Bagh, in which she informed the SDM that her
mother-in-law had poured the kerosene oil on her. On the basis of the last
two declarations, the learned trial court came to the conclusion that the
presumption of dowry death applies in the present case and hence while
exonerating the brother-in-law, the mother-in-law and the husband were
convicted vide the impugned judgement.

6. The appeal against the impugned judgment was filed on 21st
November, 2002. Vide order dated 15th January, 2004, this Court while
noticing that the accused has served almost a 5-year sentence out of the 7-
year sentence given to him, had released the accused on bail. The order
dated 15th January, 2004 is set out herein below:

CRL.A.899/2002 Page 3 of 20

“CRL. M. No.2947/2002 in CRL.A.No.899/2002

Heard. Out of substantive sentence of
imprisonment for seven years, the appellant has
already spent about five years. Learned counsel
for the appellant has drawn my attention to three
dying declarations of the deceased to point out that
on each occasion she told different versions in
regard to the manner in which burn injuries
eventually resulting into her death were sustained
by her. Referring to third and last dying
declaration of the deceased, learned counsel for
the appellant contends that even according to her
the appellant had taken no part in dousing her
with kerosin oil and setting her afire and the role
in that regard was restricted to mother-in-law
only. Taking note of facts and circumstances and
on a prima facie view of the evidence on record
and also the fact that hearing on appeal is unlikely
in near future, the remaining substantive part of
sentence is suspended and the appellant is
admitted to bail on executing a personal bond for
Rs.20,000/- with one surety in the like amount to
the satisfaction of the learned Trial Court but
subject to deposit of the amount of fine. The
application is disposed of. This order may be
communicated to the appellant through Jail
Superintendent concerned.”

7. The Appellant has since remarried and has a child who is 12 years of
age.

8. The trial court in the impugned judgment records its observations on
the malaise of dowry death in our society. Thereafter, the trial court
proceeds to analyse the evidence of various witnesses including the alibi put
forth by the accused. The trial court then comes to the conclusion that the

CRL.A.899/2002 Page 4 of 20
present is a case which is not a case of suicide but homicide. The trial court
gives and lays importance on the third statement made before the S.D.M.
and discards the first statement made before the doctor. The trial court then
holds that under Section 304B read with Section 498A and the provisions of
the Evidence Act, there is a presumption that needs to be drawn, considering
the fact that the victim died within a period of two years from the date of
marriage.

9. A perusal of the trial court judgment clearly shows that on facts, the
trial court has relied on the third dying declaration. Before going into the
question as to whether the dying declaration should have been considered
and if so which of the statements constitutes the dying declaration, some
discussion is required in respect of the depositions of the various witnesses.
Apart from the police authorities and the doctors, who testified, the first and
the most important witness is PW-4, Shri Gurmail Singh. He was the first
person to reach the spot. He ran the grocery shop in the neighbourhood. He
reached the premises of the victim and saw her in flames. He specifically
states that there was no one else present in the house at that time except the
small child. He, in fact, called the police and the parents of the victim. His
statement has been paraphrased by the trial court in paragraph 10 as under: –

“PW-4 Gurmail Singh runs a grocery shop in
premises No. RZ-F-298-C, Nihal Vihar. He stated
that 9-10 months ago at about 10.00 A.M. or 10.30
A.M. when he was present in his shop that he was
informed about the smoke came out of the house of
accused persons. He went to their house and found
the wife of accused Bittu in flames and her child
lying on a cot outside room. He informed the
father of the wife of Bittu who came to the spot
after about two hours. Before that the police had

CRL.A.899/2002 Page 5 of 20
taken the wife of Bittu to the hospital. He, however,
could not say as to how she got burnt.”

10. In the absence of the actual statement made by PW-4, Shri Gurmail
Singh, even the above statement has various facts which are conspicuously
absent: –

(i) Whether PW-4 saw anyone leaving the house before he reached
there?

(ii) Whether PW-4 contacted the mother-in-law and the husband
first or the parents of the victim?

(iii) In what position, did he find the victim?

(iv) Was there any commotion created as, if, there were more than
one person present i.e. three more persons of the victim’s in-
law’s family i.e. the mother-in-law, the brother-in-law and the
husband, and if they left after setting the victim on fire, there
ought to have have been some commotion, screams from the
victim etc.,?

(v) Did anyone else see them leaving the house?

11. Considering the social status of the accused and the victim, the house
of the victim appears to be in a densely populated place and it is highly
unlikely that if three people ran out of the house after setting the daughter-
in-law on fire, there would have been no eye witness seeing them leave the
house. Whether PW-4 was cross-examined on this aspect is not clear. It is
improbable that all three persons who were accused could have left without
any witness seeing them leave. The evidence of PW-1 is also not clear. The
trial court simply records that PW-1, the Constable, Rajinder Pershad, went

CRL.A.899/2002 Page 6 of 20
to the spot in Nihal Vihar and took the victim to Safdarjung Hospital. Only
PW-1, Rajinder Pershad and PW-2, Sajjan Singh, the two constables had
visited the premises of the victim to bring her to the hospital. There are no
details about who was present when they reached there. PW-3, Sheikh Riaz
was a constable who arrested the accused on 14th February, 1999. Thus,
there was a gap of almost three months between the incident and the arrest
of the accused.

12. Interestingly, Head Constable, Davinder Singh, PW-13 who was at
the place of occurrence to secure the place also did not make any statement
as to whether the mother-in-law and the husband came home after the
incident had occurred and if so, what was their reaction and behaviour.

13. Thus, there are several gaps in the evidence as can be deduced from
the trial court judgment. The accused led the evidence of the truck owner –
DW-2, Satinder Singh and the conductor – DW-1, Amit. He also led the
evidence of the helper in the truck – DW-3, Ashok Kumar. All three
witnesses said that on the date of the incident, the accused was driving truck
No.DIG-5819 which had transported a printing machine from Delhi to
Bombay on 3rd December, 1998. The trial court does not give any reasons
for discarding the evidence of DW-1 and DW-3. In fact, their evidence is not
even mentioned in the discussion by the trial court. The extract of their
evidence is set out below: –

“25. DW-1 Amit stated that he was with accused
Ram Parkash alias Bittu as conductor of
Truck No. DIG-5819 which took a printing
machine from Delhi to Bombay on
3.12.1998. He also stated that they had
taken diesel from petrol pump and/at
Udaipur by-pass they had also paid fee vide

CRL.A.899/2002 Page 7 of 20
slip Ex.DB.

26. DW-2 Satinder Singh is owner of the truck
No. DIG-5819. He stated that he runs
transport businesses in the name of
Rajdhani Bombay Career and accused had
taken the truck from Delhi to Bombay. He
stated that accused had returned
slips/papers Ex.DW-2/B to PW-2/D received
during the course of jorney.

27. DW-3 Ashok Kumar stated that receipt
Ex.DW-2/DC is issued for their petrol at
Bombay on 3.12.1998.”

14. Finally coming to the statements and the dying declarations, the
victim made three statements. The first statement was at 11.45 a.m. i.e.
within a period of one hour from the incident being reported. She clearly
stated to the doctor, Dr. H.K. Sharma, PW-14 that she poured kerosene oil
on herself and set herself on fire. The only reason given by the trial court for
discarding this statement is that the doctor did not make any attempt to know
the details or the circumstances. Further the actual statement of the doctor is
not available. What is available on record is only the précis of his statement
as recorded in paragraph 52.

15. Admittedly, the mother of the victim made a statement that she along
with her husband reached the hospital around noon. Thus, the second
statement of the victim was made after her parents had reached there. The
final statement was made almost 10 hours after the incident i.e. at about 8.00
p.m. Admittedly, the victim passed away on 5th December, 1998 at 5.20 p.m.
As per the post-mortem report, the victim had suffered 90% burn injuries.
The most important fact, however, remains the complete contradiction

CRL.A.899/2002 Page 8 of 20
between the first statement and the other two statements. In State of Delhi
v. Ratni Devi (Criminal Leave Petition No. 740/2014, decided on May 25,
2015), a learned Division Bench of this Court had upheld the exoneration of
the accused on the ground that there were contradictory dying declarations.
Paragraph 25 of the said judgment is set out below: –

“25. Applying the aforesaid principles of law to the
facts of the present case, we are of the view that there
are contradictions in the dying declarations made by
the deceased Ritu. First dying declaration made by her
to SI Narender Samota must be believed as her true
dying declaration because in the light of the facts and
circumstances of the present case it appears to be
voluntary, truthful and consistent which has been made
without tutoring and in a fit state of mind. Further, SI
Narender Samota has no motive to falsely depose that
deceased Ritu disclosed this fact to him. Here, it is
pertinent to mention that deceased was brought to the
hospital by none-else but her husband and it is
apparent from the MLC Ex. PW6/B wherein the time
mentioned is 6.13 AM and the alleged incident took
place around 6.00 AM in the morning. This by itself is
suggestive of the fact that the respondent made sincere
efforts to save the life of his wife. Hence, it cannot be
ruled out that the second dying declaration appears to
be improved, tutored and prompted.”

When there are contradictory statements and considering the fact that the
trial court gives no reference to this issue whatsoever, the evidence adduced
by the accused that there was a possibility that he was not present in Delhi
on the date of the incident shows that this was not a case which could have
been purely based on a dying declaration. There ought to have been some
corroborative evidence.

CRL.A.899/2002 Page 9 of 20

16. The evidence led by the prosecution has gaping holes: –

(i) There is not a single witness who was produced, who
contradicted the evidence adduced by the Accused through
DW-1 to 3.

(ii) There is not a single witness who was produced who saw the
accused in Delhi on 4th December, 1998.

(iii) There is not a single witness who was produced who saw the
accused leaving the house just before PW-4 reached the
victim’s house.

(iv) It was not established that there was any commotion created
when the accused was burnt. There was no evidence to show
that the accused had either screamed for help or had any injury
marks on her body. If she was burnt by her in-laws and her
husband, there ought to have been evidence of a struggle which
is completely absent.

(v) It was only when smoke was detected that PW-4 reached the
spot. There was no voice heard prior to the noticing of the
smoke from the residence.

17. Further, in order to constitute dowry death, the following essential
conditions need to be fulfilled as held in Hira Lal Vs. State (Govt of NCT),
Delhi (2003) 8 SCC 80 –

“8. Section 304-B IPC deals with dowry death reads
as follows:

“304-B Dowry Death- (1) Where the death of a woman
is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within
seven years of her marriage and it is shown that soon

CRL.A.899/2002 Page 10 of 20
before her death she was subjected to cruelty or
harassment by her husband or any relative of her
husband for, or in connection with any demand for
dowry, such death shall be called „dowry death‟, and
such husband or relative shall be deemed to have
caused her death.

Explanation – For the purpose of this sub-section,
„dowry‟ shall have same meaning as in Section 2 of the
Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished
with imprisonment for a term which shall not be less
than seven years but which may extend to
imprisonment for life.”

The provision has application when death of a woman
is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within
seven years of her marriage and it is shown that soon
before her death she was subjected to cruelty or
harassment by her husband or any relatives of her
husband for, or in connection with any demand for
dowry. In order to attract application of Section 304
IPC, the essential ingredients are as follows:-

(i) The death of a woman should be caused by burns or
bodily injury or otherwise than under a normal
circumstance.

(ii) Such a death should have occurred within seven
years of her marriage.

(iii) She must have been subjected to cruelty or
harassment by her husband or any relative of her
husband.

(iv) Such cruelty or harassment should be for or in

CRL.A.899/2002 Page 11 of 20
connection with demand of dowry.

(v) Such cruelty or harassment is shown to have been
meted out to the woman soon before her death.

Section 113-B of the Evidence Act is also relevant for
the case at hand. Both Section 304-B IPC and Section
113-B of the Evidence Act were inserted as noted
earlier by the Dowry Prohibition (Amendment) Act 43
of 1986 with a view to combat the increasing menace
of dowry deaths. Section 113-B reads as follows:-

“113-B: 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.

Explanation – For the purposes of this section, „dowry
death‟ shall have the same meaning as in Section 304-
B of the Indian Penal Code (45 of 1860).”

The necessity for insertion of the two provisions has
been amply analysed by the Law Commission of India
in its 21st Report dated 10-8-1988 on „Dowry Deaths
and Law Reforms‟. Keeping in view the impediment in
the pre-existing law in securing evidence to prove
dowry related deaths, legislature thought it wise to
insert a provision relating to presumption of dowry
death on proof of certain essentials. It is in this
background that presumptive Section 113-B in the
Evidence Act has been inserted. As per the definition of
‘dowry death’ in Section 304-B IPC and the wording in
the presumptive Section 113-B of the Evidence Act, one
of the essential ingredients, amongst others, in both the
provisions is that the woman concerned must have

CRL.A.899/2002 Page 12 of 20
been “soon before her death” subjected to cruelty or
harassment “for or in connection with the demand of
dowry”. Presumption under Section 113-B is a
presumption of law. On proof of the essentials
mentioned therein, it becomes obligatory on the Court
to raise a presumption that the accused caused the
dowry death. The presumption shall be raised only on
proof of the following essentials:

(1) The question before the Court must be whether the
accused has committed the dowry death of a woman.
(This means that the presumption can be raised only if
the accused is being tried for the offence under Section
304-B IPC).

(2) The woman was subjected to cruelty or harassment
by her husband or his relatives.

(3) Such cruelty or harassment was for, or in
connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her
death.

9. A conjoint reading of Section 113-B of the Evidence
Act and Section 304-B IPC shows that there must be
material to show that soon before her death the victim
was subjected to cruelty or harassment. Prosecution
has to rule out the possibility of a natural or accidental
death so as to bring it within the purview of the “death
occurring otherwise than in normal circumstances”.

The expression “soon before” is very relevant where
Section 113-B of the Evidence Act and Section 304-B
IPC are pressed into service. Prosecution is obliged to
show that soon before the occurrence there was cruelty
or harassment and only in that case presumption
operates. Evidence in that regard has to be led by

CRL.A.899/2002 Page 13 of 20
prosecution. “Soon before” is a relative term and it
would depend upon circumstances of each case and no
strait-jacket formula can be laid down as to what
would constitute a period of soon before the
occurrence. It would be hazardous to indicate any
fixed period, and that brings in the importance of a
proximity test both for the proof of an offence to dowry
death as well as for raising a presumption under
Section 113-B of the Evidence Act. The expression
“soon before her death” used in the substantive
Section 304-B IPC and Section 113-B of the Evidence
Act is present with the idea of proximity test. No
definite period has been indicated and the expression
“soon before” is not defined. A reference to expression
“soon before” used in Section 114 Illustration (a) of
the Evidence Act is relevant. It lays down that a Court
may presume that a man who is in the possession of
goods “soon after the theft, is either the thief has
received the goods knowing them to be stolen, unless
he can account for his possession”. The determination
of the period which can come within the term “soon
before‟ is left to be determined by the Courts,
depending upon facts and circumstances of each case.
Suffice, however, to indicate that the expression “soon
before‟ would normally imply that the interval should
not be much between the cruelty or harassment
concerned and the death in question. There must be
existence of a proximate and live-link between the
effect of cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty is
remote in time and has become stale enough not to
disturb mental equilibrium of the woman concerned, it
would be of no consequence.”

Thus, it is not only essential to show that the victim was subjected to cruelty
or harassment by her husband or his relatives, but further that such cruelty or
harassment was for or in connection with any demand for dowry and also

CRL.A.899/2002 Page 14 of 20
that the same occurred soon before her death. Emphasis is laid on the fact
that the cruelty has to be `soon before‟, as stipulated in Section 113-B of the
Evidence Act. There must be a `live link‟ between the cruelty and the
incident. If the cruelty is remote in time and is stale at the time of the
incident, it would be of no consequence. This view is also reiterated in
Monju Roy and Ors. Vs. State of West Bengal 2015(5) SCALE 288
wherein the Supreme Court observed as under –

“10. Moreover, ingredient of offence under Section
304B is not mere demand of dowry but “cruelty or
harassment” for or in connection with demand of
dowry”.

18. If the evidence in the present case is analysed, keeping these tests in
mind, the only witness who has testified as to the cruelty meted out to the
victim is the mother – PW-7, whose statement has been captured by the Trial
Court in paragraph 13 as under:

“13. PW-7 Smt. Rama Rani is the mother of the
deceased. She stated that her daughter Vandna was
married with accd. Parkash on 29.6.1997 and dowry
was given as per their status. Her daughter started
living with her husband in Nihal Vihar after her
marriage alongwith his family namely brother -in-law
Vickey and mother-in-law Sita Devi. For the first two
months she did not receive any complaint of
harassment from her daughter. After that her daughter
used to come and complain that the accused persons
used to treat her cruelly and beat her by making
demand for money. Many times she prevailed over her
daughter and persuaded her to live with her husband
and relatives. She further stated that her daughter
came to live with her when she was carrying five
months old pregnancy. Her daughter gave birth to a
child after four months when she stayed with them.

CRL.A.899/2002 Page 15 of 20

They sent message to her inlaws. The accused persons
took back her daughter and the child to their house. At
that time cash and clothes were also given to the
accused persons.

After some time her daughter, along with the child
were ousted from the house. She alongwith her
husband had gone and requested the accused persons
to keep her. They were not interested in lodging report
and wanted to properly settle her. She further stated
that on 4.12.1998 at about 9.00 A.M. they received
telephone call from a neighbour of the accused persons
namely Gurmail Singh that their daughter had been
burnt.

She alongwith her husband had gone to the house of
the accused persons in Nihal Vihar where she found
the child weeping on the cot. At that time none else
was present. The burnt body of her daughter had been
removed to Safdarjang Hospital. They went to
Safdarjang Hospital. She had also talked to her
daughter who told her that the accused persons
harassed her and poured kerosene oil on her and burnt
her. Later on she died in the hospital. She stated that
her statement Ex.PW-7/A was also recorded by the
S.D.M. Statement of her husband Ex.PW-7/B was also
recorded. Her husband died on 31.12.1999. She had
identified the dead body of her daughter and also
signed the inquest report Ex.PW-7/C.”

19. From the testimony of the mother, the following facts emerge:

a. That the victim, immediately after marriage was happy for an
initial period of two months.

b. Thereafter demands for money for made and she was beaten;
c. The victim went to her parent’s house when she was five
months pregnant;

d. The child was born in the parent’s house and thereafter she

CRL.A.899/2002 Page 16 of 20
went back to the in laws house;

e. There was an incident when she was ousted but upon
persuasion, she stayed back in the in-law’s house;

There are several gaps in the evidence of the mother. At the time of her
death, the exact age of the child is not clear. The time gap between the birth
of the child and the death of the victim is also not clear from the record.
Whether immediately before the death, was any cruelty meted to the victim
is not clear. The victim has spent a substantial portion of her married life in
her in-law’s house and not in the parental house. The conviction is based
only on the testimony of the mother – PW 7.

20. This Court is conscious of the fact that there is a presumption of
dowry death under Section 498A and 304B if;

a) Death takes place within seven years of marriage;

b) Death is unnatural;
c) The death is coupled with cruelty or harassment by the husband

or any member of the husband’s family in connection with a
demand for dowry.

d) there has to be cruelty which can be closely connected with the
death.

21. In the present case, the death was unnatural and it took place within
seven years of marriage. However, apart from the paraphrasing of the
statement of the mother of the victim, there is no evidence to establish
cruelty having been meted out by the accused i.e. the husband. Even if the
onus on the prosecution is to “show” instead of to “prove” that she was
subjected to cruelty, the threshold for convicting for `dowry death’ has not

CRL.A.899/2002 Page 17 of 20
been crossed. The cruelty has to be wilful conduct so as to drive the women
to commit suicide or harassment or coercion to meet an unlawful demand.
The fact that the victim and the child were in the in-law’s house at the time
of the event and at best even the statement of the victim’s mother only show
that out of 18 months after marriage, it was only when the child was to be
born that she had gone to her mother’s house, would not by itself establish
dowry death. Further, the first dying declaration is completely changed after
the parents met the victim in hospital. The stark contradiction leaves doubts
on which of the declarations is true – the first in point of time or the one
given before the SDM. There is diversity of opinion on this issue. Since the
actual statements are not available, the court, has to judge the evidence on
the basis of the record available. The Court is of the opinion that simply on
the record which is available, the conviction of the accused under Section
304B IPC, cannot be upheld. In Kamlesh Kumar v. State
2014(I)AD(Delhi)63 and Mohammad Adil v. State 2014(3) JCC 1857,
learned Single Judges of this Court had held, in cases where the trial court
record could not be traced, that the benefit of doubt would have to be given
to the accused.

22. Insofar as the conviction under Section 498A is concerned, there is no
doubt from the mother’s testimony that all was not well in the marriage and
for a long period of five months during the eighteen months of marriage, the
victim stayed with her parents. The mother PW-7, has also stated that there
was physical violence and demands for dowry. Thus, the factum of cruelty is
established though the said cruelty may not have an immediate connection
with her death. There is no reason to disbelieve PW-7 on this count. In Hira
Lal (supra), the Supreme Court has observed that while there

CRL.A.899/2002 Page 18 of 20
could be difficulty in sustaining convictions under Section 304B IPC, if
there is evidence then conviction under Section 306 r/w Section 498A can
even be sustained. A similar view has been taken by the Bombay High Court
in John Vasant Khandagale Vs. The State of Maharashtra, 2011 CriLJ
2708, wherein the High Court observed as under:

“14. Even though death of Tai @ Urenica was not a
natural death, and was homicidal, unless it could be
established that death had occurred on account of or in
connection with the demand of dowry or her
harassment or torture was for demand of dowry. It
could not be treated as dowry death. Merely because a
woman dies unnatural death within seven years after
marriage, it cannot be said to be dowry death unless
the death can be related to demand of dowry. To
clarify this position, a few illustrations may be given.
Assuming that there was some demand and on that
count the wife was ill-treated, however, if the death
occurs in a motor accident or in an accidental fire in
the house or during a dacoity in the house or if the
woman is attacked, raped and then murdered by some
person unconnected with the family of husband, such
death may be unnatural, but such death being not
connected with the demand of dowry cannot be treated
as dowry death. To establish that it was a dowry
death, it must be established that death was connected
with ill-treatment or harassment on account of or in
connection with demand of money.”

23. Thus, while there is sufficient ground to set aside the conviction under
Section 304B, the conviction to the extent of Section 498A is upheld. The
accused has already served a period of over five years and the sentence has
already been undergone.

24. The appeal is thus partially allowed setting aside the conviction under

CRL.A.899/2002 Page 19 of 20
Section 304(B). All pending applications are also disposed of. The Surety is
discharged.

PRATHIBA M. SINGH
JUDGE
DECEMBER 21, 2018
Rekha/Rahul

CRL.A.899/2002 Page 20 of 20

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation