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Sanjay Kumar Jain Vs. State Of Delhi on 16 December, 2010

Sanjay Kumar Jain Vs. State Of Delhi on 16 December, 2010
Author: D Bhandari
Bench: Harjit Singh Bedi, Chandramauli Kr. Prasad

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2400 OF 2010.

(Arising out of SLP (Crl.) No.2660 of 2010)

Sanjay Kumar Jain …..Appellant

Versus

State of Delhi …..Respondent

JUDGMENT

Dalveer Bhandari, J.

1. Leave granted.

2. This appeal arises out of the judgment and order of the

High Court of Delhi passed in Criminal Appeal No.63 of 1997

dated 12.11.2009.

3. The brief facts giving rise to this appeal are as under:

The appellant Sanjay Kumar Jain was married to Smt.

Anju Jain (since deceased) on 20th February, 1990. After

marriage, only both of them started residing at house 2

No.2803, Gali No.6, Chander Puri, Kailash Nagar, Delhi. It is

the case of the prosecution that the deceased was harassed for

insufficient dowry and the harassment continued till her

death. Admittedly, Smt. Anju Jain died within one year and

two months of marriage on 10.4.1991.

4. A call was received from one Nanak Chand, P.W.1 on

10.4.1991 at 8.50 p.m. at the police control room about the

murder of the deceased and accordingly DD Entry No.11A was

recorded. On reaching the spot, the police found Sub-

Inspector Budh Sain along with police staff was already

present there. A bunch of keys was provided by neighbour

Sadhna PW8 and one of the keys fitted the lock and after

opening the door, they climbed to the first floor where the

appellant and the deceased resided. The dead body of the

deceased was found lying on the floor. At the scene of the

crime, broken bangles were found lying on the floor and a hair

strand was also found on the chest of the deceased. Rukka

was sent by making endorsement on the DD to the police

station and on this basis FIR No.83 of 1991 was registered.

The inquest proceedings were conducted through the area 3

Sub-Divisional Magistrate and the spot was photographed

whereafter the body of the deceased was sent for post-mortem.

5. Dr. L.K. Barua, P.W. 20 who conducted the post-mortem

found ten ante-mortem injuries on the body of the deceased

and the cause of the death was opined as asphyxia following

strangulation by rope like material and the injuries were

sufficient to cause death in the ordinary course of nature.

6. The parents of the deceased Mohan Lal, P.W. 2 (father)

and Raj Bala, P.W. 3 (mother) were examined and in their

statements it was clearly stated that the deceased was

continuously being harassed on account of insufficient dowry.

7. Mohan Lal, P.W.2 in his statement clearly stated that:

"On the demand of accused, I paid a sum of Rs.15,000/- at one time and Rs.10,000/- another time after about 6/7 months of marriage of my daughter with the accused. The accused demanded the said amount as he started tent business."

He further stated that:

"The accused again started harassing my daughter and used to compel her to bring money from her parents. My daughter had told the said facts to me."

In the cross-examination, Mohan Lal, P.W.2 also stated

that:

4

"I had given the amount of Rs.10,000/- and Rs.15,000/- to the accused out of my saving which was lying in my house and also by taking some amount from my friends."

In the cross-examination, he further stated that:

"My daughter had met me in my house about 1 or 1= months prior to her death. Even at that time she told me that the accused used to harass her and she was perturbed and she told me that she was hard of money and the accused had again demanded money from her. She did not tell the particular amount which the accused had demanded."

8. Similarly, Raj Bala, P.W.3, the mother of the deceased

also clearly stated in the statement that:

"Deceased Anju was my daughter and she was married with the accused on 20.2.90. My daughter used to tell us that accused Sanjay used to harass her because of insufficient dowry. She also used to tell us that accused used to give her a beating and that the accused used to demand money. The accused demanded a sum of Rs.50,000/- but my husband had paid Rs.25,000/- to the accused once after 14 months of marriage of my daughter."

9. It is abundantly clear from the statements of P.W.2 and

P.W.3 that the deceased was harassed on account of dowry

right from the point of marriage till her death. 5

10. The appellant was charged under sections 302 and 304B

of the Indian Penal Code. The trial court held that the charge

under section 302 IPC was established against the accused,

therefore, there was no necessity to discuss the next

alternative charge under section 304B IPC. In the impugned

judgment, the High Court also did not deal with the charge

under section 304B IPC. The trial court on the basis of

evidence and other material on record found the appellant

guilty under Section 302 IPC. He was convicted and was

awarded life imprisonment. The conviction was upheld by the

High Court. The appellant aggrieved by the impugned

judgment of the High Court has preferred this appeal

11. We have heard the learned counsel for the parties at

length.

12. Mr. U.N. Bachawat, learned senior counsel, who

appeared on behalf of the accused/appellant submitted that in

this case the prosecution has failed to establish the motive for

committing the crime.

13. He submitted that it is well settled law that in a case of

circumstantial evidence, the circumstances from which the 6

conclusion of guilt is to be drawn should in the first instance

be fully established and all the facts so established should be

consistent only with the hypothesis of the guilt of the accused.

Again the circumstances should be of a conclusive nature and

they should be such as to exclude every hypothesis but the

one proposed to be proved. In other words there should be a

complete chain of evidence so far complete as not to leave any

reasonable ground for a conclusion consistent with the

innocence of the accused and it must be such as to show that

within human probability the act must have been done by the

accused. Mr. Bachawat submitted that motive to commit

crime acquires greater significance in a case based entirely on

circumstantial evidence. The prosecution in this case has

failed to establish the motive, therefore, the courts have to be

extremely careful in convicting an accused in a case of

circumstantial evidence without any motive.

14. Mr. Bachawat also submitted that apart from the fact

that there is no eye witness in this case, there is also no

scientific evidence to connect the accused with the crime. The

prosecution failed to establish the motive behind the

commission of the offence of murder of the deceased. 7

15. This court in the case of C. Chenga Reddy and Others

v. State of Andhra Pradesh (1996) 10 SCC 193 held as

under:

"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. … … …"

16. In the case of G. Parshwanath v. State of Karnataka

(2010) 8 SCC 593 this court has observed as under:

"In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. … … … There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused, where various links in chain are in themselves complete, then the false plea or false 8

defence may be called into aid only to lend assurance to the court."

17. Both the above cases were followed in the latest case in

Varun Choudhary v. State of Rajasthan JT 2010 (11) SC

419 para 23.

18. Mr. Bachawat further submitted that the prosecution

examined a neighbour Sadhna, P.W.8 who stated that the

accused and the deceased lived happily. The relevant part of

the statement reads as under:

"I know the accused for the last about 12/13 years. Anju used to come to my house sometimes. I have never seen any quarrel between the accused and the deceased. I have always seen them living merrily."

19. Mr. Bachawat also contended that according to the

testimony of Mohan Lal, P.W. 2, it is abundantly clear that the

said demand cannot be termed as dowry demand as the said

amount was paid for the business purpose.

20. Learned senior counsel for the appellant submitted that

the accused appellant along with his wife was living on the

first floor of the house No.2803, Kailash Nagar, Delhi as a

tenant. The house had three doors on the ground floor, out of

which one door which leads to staircase was in possession of 9

the appellant. The other two doors were meant for the

landlord which were under the lock and key of the landlord.

From one door out of these two doors, which were under the

occupation of the landlord, any one could have an access to

the first floor i.e. the tenanted premises whereas the case of

the prosecution was that the door was locked and had to be

opened by the police after getting report from Nanak Chand,

P.W.1.

21. Mr. Bachawat referred to the statement of Sadhna, P.W.

8 in which she stated that there was no lock on the door of the

staircase. However, two locks were found affixed on the two

doors of the ground floor of the house. The door of the

staircase which was in possession of the accused appellant

was found bolted from inside. Sadhna P.W.8, stated as under:

"I had given bunch of keys to brother of Sanjay and one key out of the said bunch was operative on the lock fixed on the ground floor door. Due to which ground floor door was opened. Other way also leading to the first floor of the house. In fact, the door of the staircase meant for the accused was in the street, which was locked and the other way to the said staircase was in the room at ground floor which was in possession of the landlord. So we went upstairs after opening the lock of ground floor as stated by me earlier through the way. There we found Anju lying dead. Several persons had collected there. The key which was in my bunch 10

and with which the said lock was opened was not of the said lock. It was operative by chance. I had taken back my said key thereafter from Baldev."

22. According to Mr. Bachawat there is major contradiction

as regard to two doors which were under occupation and use

of the landlord. As per the site plan, one door, i.e., the door

from the gallery was bolted from inside whereas, according to

Sadhna, P.W. 8, both the doors which were in the occupation

and use of the landlord had locks on them. Mr. Bachawat

referred to the following observation of the High Court:

"If the scene of the crime is carefully analysed, it is obvious that there was no get-away passage for a third person to have committed the crime and disappear from the scene. The main access was found locked for which the key was provided by the appellant. The other access through the staircase was found bolted from inside. Thus the appellant alone had an access to the place of occurrence, which factor itself is sufficient to prove his guilt."

23. According to the learned counsel for the appellant, the

above observations of the High Court are contrary to the

evidence on record for the following reasons:-

A. The prosecution has miserably failed to prove as to which of the three doors was allegedly opened by the key provided by the accused:-

i. it is clear from the statement of PW8 that the door i.e. the main access meant for the accused was bolted from inside and 11

was not locked from outside therefore this door cannot be the door which was opened with the key provided by the

accused as held by the High Court.

ii. It is further clear from the statement of Sadhna PW8, that on 10.4.91 she had

given a bunch of keys to Baldev, PW12 i.e. the brother of accused and one key out of said bunch was operative on the lock fixed on the ground floor door due to which ground floor door was opened and they went on the first floor. Probably this door was the one which lead to the

gallery and then to the first floor.

Thereafter this witness had taken back the said bunch from Baldev, PW12.

Therefore, when this door was already opened on 10.4.91 and there is no

evidence that on the same lock was put back, either the door would have been left unlocked or would have been locked by the police by putting some other lock, giving no occasion for the accused to apply the alleged key on the lock on 13th. Thereafter, this door also cannot be the one which was opened with the key

provided by the accused.

iii. That the third door was the door of the room under the lock and key of the

landlord and from there was no access to the first floor, therefore, this door also could not be the door which was opened with the key provided by the accused.

B. That from the statement of Sadhna PW8 it is abundantly clear that Sadhna PW8 also had an access to the house in as much as the lock was opened by a key provided by Sadhna, which worked by chance. This fact goes to show that the lock was 12

such that it could be opened by any key and therefore anybody could have a free access to the house after opening the lock with the same key.

C. That from the statement of Sadhna PW8 it is also evident that the landlord also had the access to the other two rooms, which were locked from outside. Rather the lock on the two doors were that of the landlord and he was in possession. In view of the above stated facts the landlord was a very material witness and his non-examination creates a serious dent in the prosecution case. There is no explanation or attempt on behalf of prosecution to show as to why the landlord was not produced and examined.

D. As per site plan Ex. PW22/B the room on the first floor, where the deceased was found dead, had two windows one bolted from inside and the other window i.e. W2 was open and it opened on Chajja, therefore giving an easy access to a stranger. The important aspect has not been noted and considered by the ld. trial court and the High Court.

E. It is alleged that on 13th the appellant opened the lock after taking out the key from his pocket. If the accused had the key with him it would have been found in his personal search which must have been taken at the time of his arrest in view of the provision contained in section 51 Cr.P.C. which preceded the journey to his house for recovery of wicket and string, a fact evident from the statement of Ravi Dutt PW 22 quoted hereinbelow:

"After recording disclosure statement of accused, I arrested him in his case. It is correct that after arresting accused I took him to the house of accused for search." 13

24. Mr. Bachawat submitted that the injuries found on the

body of the appellant as per the MLC (Ex.P.W. 14/A) have not

been explained.

25. He further stated that no question was put to the

accused to explain the alleged injuries on his person as to how

and when and the manner in which the allege injuries were

caused. As per the settled law of this court the question for

statement under section 313 Cr.P.C. must be framed in such a

way so as to enable the accused to know what he is to explain.

He referred to the judgment of this court in Ajay Singh v.

State of Maharashtra 2007 (12) SCC 341 wherein the Court

has held as under:

"The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the question must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made 14

out against the accused so that he may be able to give such explanation as he desires to give.

…..He must be question separately about each material substance which is intended to be used against him. The questioning must be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstances should be put simultaneously and separately in a way that even an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand."

26. Mr. Bachawat submitted that the only questions put to

the accused under section 313 Cr.P.C. are as under:

Q.8 It is further in evidence against you that your two hairs of head Ex.P8 were also seized and taken into possession vide memo Ex.PW 4/E and you were also sent for medical

examinations vide ML CEX PW 14/A, what you have to say?

Ans.8 It is correct that two hair from my head were plucked by police. Rest `I’ do not know.

Note: It is of significant relevant to note that Q.8 was put to the accused under section 313 Cr.P.C. to connect the accused with the alleged crime. DNA report as regards the hair found from the Chest of the deceased and hair taken from the scalp of the accused was called for.

15

27. Mr. Bachawat contended that The High Court in its

impugned judgment as regards this DNA report has observed

as under:

"The DNA report had not been filed in this behalf. In our considered view this fact itself cannot belie the story of the prosecution though the availability of the DNA report would have strengthened the prosecution story."

28. Thereafter, Mr. Bachawat further contended that the

High Court in the above situation ought to have necessarily

inferred and presumed that the seized hair from the chest of

the deceased was not of the accused as such the accused is

not the author of the crime.

29. Mr. Bachawat referred to the following question put to

the accused under the statement recorded under section 313

Cr.P.C.:

Q.23 It is further in evidence against you that on 13.4.1991 you were medically examined by the doctor at SDN Hospital, Shahdara, vide MLC No.1276 Ex. PW14/A, what you have to say.

Ans.23 I was medically examined.

30. Mr. Bachawat also submitted that the as per MLC

following injuries were found on the appellant: 16

1. Scratch mark over Rt. Knee and Lt. knee joint (Brown coloured).

2. One small bruise (blackish red) over exterior aspect of Lt. Wrist Joint.

3. One scratch mark (pin point) reddish over redial margin of Rt. Thumb.

4. Linear 2-3 pinkish 5-6 cms below Rt. inperscapular region.

5. Small irregular 1-2 pinkish bruise over Lt. Scapela region.

31. The learned senior counsel for the appellants referred to

the statement of Dr. L.K. Barua, P.W.20 who conducted post-

mortem examination on the body of the deceased and found

the following injuries:

1. Multiple prominent abrasions were present on front and sides of the neck, extending form sub-mental are to the supra-external notch. The abrasions were also present and both mendibular areas. The abrasions in front and on the right side showed four prominent ligatures marks almost parallel to each other and wee placed horizontally. The margins of these abrasions were seen fusing at their outer ends on the right side of the neck. The linear abrasions were also seen on the left side of the neck but were comparatively faint in

comparison to right side. The width of ligature abrasions varied from .06 c.m. to 1.2 c.m. The areas in between the individual marks also showed multiple small abrasions and bruising with evidence of grazing. On the back side of 17

the neck a narrow interrupted abrasion mark could be seen running horizontally.

2. One small bruising was seen on left side front of upper part of chest just below the middle part of collar bones of size 3 c.m. x 2.5 c.m.

3. One abrasion on right side front of the chest just below the medial third of right collar bone of size 3 c.m. x 1.8 c.m.

4. One abrasion of size 1 c.m. x 0.5 c.m. were seen on the right shoulder stop.

5. Small abrasion size 0.5 c.m. x 0.2 c.m. were seen on the left shoulder top.

6. Small abrasion size 2 c.m. x 1 c.m. on the medial aspect of right arm.

7. Abrasion size 2 c.m. x 1.5 c.m. on the medial aspect of right elbow.

8. Small linear abrasion were seen o the left forearm on its dorsal aspect of size 0.5 c.m. x 0.2 c.m. It was crecenestic in side and are possibly nail marks.

9. Abrasion size 3.2 c.m. x 3 c.m. were seen in front and side of the nose.

10. Abrasion size 3 c.m. x 2 c.m. were seen on the left cheek prominent.

32. Mr. Bachawat further submitted that the recovery of the

ornaments is to be discarded as a matter of law. The recovery

of ornaments is not admissible in evidence as the same is not

effected under section 27 of the Evidence Act inasmuch as the 18

disclosure statement was recorded before the arrest was made,

a fact evident from the following extract of the testimony of

Ravi Dutt PW22:

"After recording disclosure statement of accused, I arrested him in this case. It is correct that after arresting accused I took him to the house of accused for search."

33. Learned senior counsel for the appellant contended that

the High Court erred in not noticing these facts. He also

submitted that there are material contradictions as to the

ornaments which the deceased used to wear and which were

missing from her body. According to Mohan Lal, P.W. 2, the

deceased used to wear golden ear-rings, golden ring, silver

pajeb and silver mangalsutra. When he saw the deadbody of

the deceased, he saw that mangalsutra, ring and ear-rings

were missing from her body. Similarly, Raj Bala P.W.3

submitted that her daughter used to wear ear-rings of gold,

ring of gold, nose pin of gold and silver necklace and the same

were missing from her body.

34. According to Constable Anil Kumar, P.W.9, one ring of

rolled gold, one pair of pajeb and four toe-rings (bichhuas)

which the deceased was wearing was removed from her body. 19

He produced the above stated articles before Ravi Dutt

Inspector, who had converted the broken bangles and ring,

pajeb and toe-rings into two separate pulandas and sealed

with the seal of GSS and took the possession of the said

articles vide memo Ex.P.W.9/A.

35. Ramesh Kumar, P.W. 25 stated that sixth pulanda was

containing one gold ring, one pair of pajeb but Jagdish Chand

PW4 and Jukmal Chand Jain, PW5 deposed that the said gold

ring was recovered from a pit near the railway track at the

instance of appellant.

36. According to Mr. Bachawat the string and cricket wicket

(stump) are planted. Had these articles been there the

investigating officer who had reached the spot on the 10th itself

would have definitely seized the same. The place was

accessible inasmuch as they had not locked and sealed the

premises so that nobody could have an access to the said

office. There is no explanation on behalf of the prosecution for

this illegality.

37. Mr. Bachawat submitted that had these articles such as

cricket wicket (stump) and string (narrah) been used in the 20

alleged crime there ought to have been the finger prints of the

assailant and they must have been blood stained in view of the

injuries suffered by the deceased. In this regard, the opinion

of the doctor is worth noting.

Dr. L.K. Barua, P.W. 20 deposed as under:

"I did not find any mark of blood or parts of skin in the string. I did suggest the police that the nurrah Ex.16 be also sent to CFSL for opinion.

I am not competent to give an opinion which my CFSL render in this particular situation. I did not indicate in my opinion whether there was skin or blood mark on this nurrah. I did not put any mark of identification on this stump Ex.p.7. On naked eye, I did not find mark of blood or skin and only CFSL could say about this. I do not want to give opinion as to what could be the role of stamp in the present situation.

Not sending these articles to CFSL despite the opinion of the doctor is telling circumstance in favour of the accused and these articles cannot be attributed to the accused for being used in the alleged crime.

That the string (narrah) alleged used for strangulating the deceased was eight and a half inches in length (as per Ex.PW4/C) making it impossible to commit the offence in the manner alleged by the prosecution."

38. We find some merits in the statements of the learned

senior counsel for the appellant that in a case of 21

circumstantial evidence all circumstances must lead to the

conclusion that the accused appellant was the only one who

had committed the crime and none else.

39. On following aspects there is no consistency in the

prosecution version:

1) The door leading to the house of the

deceased had free access and possibility

of any other person entering the house of

the deceased cannot be ruled out.

2) The landlord had clear access to the

house of the deceased and non-

examination of the landlord creates

serious doubt in the prosecution version.

3) Injuries found on the body of the

accused/appellant remained

unexplained. No question was put to the

accused to explain the alleged injuries on

the person.

4) There is a material contradiction as to the

ornaments which the deceased was

wearing and were missing from her body. 22

5) The string and wicket (stump) were not

seized by the Investigating Officer on the

same day as they were lying near the

dead body.

6) The string and the wicket (stump) were

not sent to Central Forensic Science

Laboratory (CFSL) despite the opinion of

the doctor telling the circumstances in

favour of the accused for being used in

the alleged crime.

7) The string (narrah) allegedly used for

strangulating the deceased was 8 =

inches in length and making it impossible

to commit the offence in the manner

alleged by the prosecution.

40. In view of the aforementioned infirmities in the

prosecution’s version the conviction under Section 302 of the

Indian Penal Code cannot be sustained. Consequently, the

impugned judgment of the High Court and the judgment of the

Additional Sessions Judge are accordingly set aside and the 23

appellant is acquitted as far as his conviction under Section

302 of the Indian Penal Code is concerned.

41. Now the question arises is whether the appellant can be

convicted under Section 304B of the Indian Penal Code? In

the instant case the appellant was also charged under Section

304B, but, in view of his conviction under Section 302 of the

Indian Penal Code the trial court did not proceed with the

charge under Section 304B of the Indian Penal Code. Section

304B reads as under:

"304B. 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 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 the 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.

24

42. In the instant case the marriage took place on

20.02.1990 and Anju died on 10.4.1991 because of ten ante

mortem bodily injuries which were found on her body at the

time of her death. Anju died within seven years of her

marriage. In the instant case the father of the deceased

Mohan Lal, P.W.2 and the mother of the deceased Raja Bala,

P.W.3 were examined. They have categorically stated that the

deceased was subjected to consistent cruelty and harassment

by her husband in connection with demand for dowry. PW2

deposed that on demand from the appellant, he was given

Rs.15,000/- on one occasion and later gave Rs.10,000/-.

According to him, there was consistent harassment on

account of demand for dowry all through. P.W.3 had stated

that the appellant used to harass and beat her daughter in

connection with the demand of dowry. In this view of the

matter, the appellant’s continuously harassing and beating the

deceased in connection with demand of dowry clearly falls

within the four corners of the Section 304B of the Indian Penal

Code.

25

43. Section 304B of the Indian Penal Code was inserted by

the Dowry Prohibition (Amendment) Act, 1986 with a view to

combating the increasing menace of dowry death. It provides

that where the death of a woman is caused by any burns or

bodily injury or occurs otherwise than under the 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 relative of her husband

for or in connection with any demand for dowry shall be guilty

under Section 304B of the Indian Penal Code. It is most

unfortunate that instances of dowry death are rapidly

increasing.

44. This dowry system is a big slur and curse on our society,

democracy and the country. It is incomprehensible how such

unfortunate and condemnable instances of dowry deaths are

frequently occurring in our society. All efforts must be made

to combat and curb the increasing menace of dowry death.

45. This court in Ashok Kumar v. State of Rajasthan

(1991) 1 SCC 166 has laid down as under: 26

"… … …Bride burning is a shame of our society. Poor never resort to it. Rich do not need it. Obviously because it is basically an economic problem of a class which suffers both from ego and complex. Unfortunately, the high price rise and ever increasing cost of living coupled with enormous growth of consumer goods effacing difference between luxury and essential goods appear to be luring even the new generation of youth, of the best service, to be as much part of the dowry menace as their parents and the resultant evils flowing out of it. How to curb and control this evil? Dowry killing is a crime of its own kind where elimination of daughter-in-law becomes immediate necessity if she or her parents are no more able to satiate the greed and avarice of her husband and their family members, to make the boy available, once again in the marriage market. Eliminate it and much may stand resolved automatically. … … …"

46. The legislature was seriously concerned about this

unfortunate reality of our society and to curb and combat

increasing menace of dowry deaths with a firm hand the

Dowry Prohibition Act, 1961 was enacted with the following

objects and reasons:

"The object of this bill is to prohibit the evil practice of giving and taking of dowry. This question has been engaging the attention of the government for some time past, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by the conferment of improved property rights on women by the Hindu Succession Act, 1956. It is, however, felt that a law which makes the practice punishable and at the same time ensures that any dowry, if given does 27

ensure for the benefit of the wife will go a long way to educating public opinion and to the eradication of this evil. There has also been a persistent demand for such a law both in and outside parliament. Hence, the present Bill. It, however, takes care to exclude presents in the form of clothes, ornaments, etc., which are customary at marriages, provided the value thereof does not exceed Rs. 2000. Such a provision appears to be necessary to make the law workable."

47. In The State of Punjab v. Iqbal Singh and Others

(1991) 3 SCC 1 this Court observed that crimes are generally

committed in the privacy of residential homes and in secrecy

and it is difficult to get independent direct evidence in such

cases. That is why the legislature has, by introducing

Sections 113A and 113B in the Evidence Act, tried to

strengthen the prosecution hands by permitting a

presumption to be raised if certain foundational facts are

established that the unfortunate event has taken place within

seven years of the marriage.

48. On proper analysis of Section 304B of the Indian Penal

Code and Section 113B of the Evidence Act, it shows that

there must be material to show that soon before her death the

victim was subjected to cruelty or harassment. The

prosecution is under an obligation to rule out any possibility 28

of natural or accidental death. Where the ingredients of

Section 304B of the Indian Penal Code are satisfied, the

section would apply. If death is unnatural, either homicidal or

suicidal, it would be death which can be said to have taken

place in unnatural circumstances and the provisions of

Section 304B would be applicable.

49. The death, otherwise than under normal circumstances,

under Section 304B of the Indian Penal Code would mean the

death not in usual course either natural or accidental death.

Section 304B creates a substantive offence. The necessity for

insertion of the two provisions has been amply enumerated by

the Law Commission of India in its 21st Report, dated

10.08.1988 on `Dowry Deaths and Law Reform’. This has

been primarily done because of the pre-existing law in

securing evidence to prove dowry related deaths.

50. In order to bring home the guilty under Section 304B of

Indian Penal Code the following ingredients are necessary:

1) The victim was subjected to cruelty or harassment by her husband or his relatives.

2) Such cruelty or harassment was for, or in connection with any demand for dowry. 29

3) Such cruelty or harassment was done within seven years of the marriage.

51. Evidence on record of this case clearly lead to the

conclusion that all these three ingredients are available in full

measure in this case. The deceased was subjected to cruelty

and harassment by her husband, the appellant herein and the

harassment was in connection with the demand of dowry.

52. In the instant case the victim (deceased) died within one

year and two months of the marriage. On proper analysis of

the entire evidence on record it is abundantly proved that the

appellant was clearly guilty of committing an offence under

Section 304B of the Indian Penal Code.

53. Consequently, we deem it appropriate to set aside the

conviction of the appellant under Section 302 of the Indian

Penal Code but in the facts and circumstances of this case we

proceed to convict the appellant under Section 304B of the

Indian Penal Code and sentence him to 9 years rigorous

imprisonment and fine of Rs.10,000/-. In case of non-

payment of fine, the accused would further undergo

imprisonment for two months.

30

54. As a result, this appeal is partly allowed and disposed of

accordingly.

……………………………….J. (Dalveer Bhandari)

………………………………J. (H.L. Gokhale)

New Delhi;

December 16, 2010

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