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Smt. Sunita & Anr. vs State & Ors. on 17 January, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 6th December, 2018
Judgment pronouncement on: 17th January, 2019

+ CRL. L. P. 566/2018
SMT. SUNITA ANR. …. Petitioners
Through : Ms. Mallika Parmar, Advocate.

Versus
STATE ORS. ….Respondents.

Through : Ms. Radhika Kolluru, APP for the State with
SI Manoj Kumar, PS Rajouri Garden.

CORAM:

HON’BLE MR. JUSTICE SIDDHARTH MRIDUL
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
CRL. L. P. 566/2018

1. In view of the decision of the Hon’ble Supreme Court of India in
Mallikarjun Kodagali (Dead), represented through Legal
Representatives vs. State of Karnataka Ors., reported at 2018 (14)
SCALE 32, the victim is no longer required to apply for leave to
appeal against the order of acquittal.

Consequently, the present criminal leave to appeal is allowed. The
matter is directed to be registered as a Criminal Appeal.

CRL.A. /2019 (To be numbered)

1. By this appeal under Section 372 of the Code of Criminal Procedure,
1973 (hereinafter referred to as ‘Cr.P.C’), the Appellants have assailed
the impugned judgment dated 06.08.2018 passed by the learned

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Smt. Sunita Anr Vs. State Ors.

Additional Sessions Judge (ASJ), Pilot Court, Tis Hazari Courts, in
Sessions Case No. 57795/2016 whereby the respondents 2 to 5 were
acquitted of the charges under Section 498A/304B/34 of the Indian
Penal Code, 1860 (hereinafter referred to ‘IPC’).

2. Brief facts of the case as noted by the learned Trial Court is as under:

“2. As per the prosecution story, on 21.05.2014, on receipt of DD
No. 33A, Assistant Sub Inspector (ASI) Abhinandan alongwith
Constable (Ct.) Satender reached at the place of incident i.e. F-89,
25 Sq. yard, Raghubir Nagar, New Delhi where on the top floor of
the said house, Anjali wife of Rohit was found hanging to the
ceiling fan using a saree. SHO as well as the Executive Magistrate
concerned was informed. The mobile crime team was called and
the spot was got photographed. SDM, Rajouri Garden recorded
the statement of Smt. Sunita, mother of the deceased.

3. As per the statement of complainant Smt. Sunita, her daughter
Anjali (deceased) was married to Rohit son of Ramesh Kumar
resident of F-89, 25 Sq. yard, Raghubir Nagar, New Delhi on 13
November, 2013. After 10-12 days of marriage, when Anjali
(deceased) had come to her parental home, she told her mother
that her husband Rohit, father-in-law namely Ramesh Kumar,
mother-in-law namely Shashi, sister-in-law namely Monika and
brother-in-law namely Amit used to harass her for dowry and had
demanded a car. Deceased also told that her mother-in-law used
to instigate Rohit (her husband) to beat her so that she would bring
dowry. The parents-in-law of deceased used to keep her hungry
and even did not allow her to talk to her husband. However, at that
time complainant made the deceased understand and advised her
to adjust in her matrimonial house. Complainant further stated
that three months prior to the incident when she alongwith her
husband had gone to the matrimonial house of the deceased, the
in-laws of deceased did not allow them to talk to deceased and also
insulted them. On 19.05.2014, deceased had again come to her
parental home. On 20.05.2014, when her husband Rohit came to
take her back, she refused to go back saying that her in-laws would
kill her. Further, on 21.05.2014 at about 6.30 p.m, father of
deceased received a telephone call from father-in-law of deceased
who asked him to come to his house immediately. On reaching the

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Smt. Sunita Anr Vs. State Ors.

matrimonial home of the deceased, complainant and her husband
found her hanging to the ceiling fan in her room.

4. On the statement of the complainant, FIR under Section
498A/304B/34 IPC was registered against all the accused persons.
Exhibits were lifted from the spot and the dead body was shifted to
DDU hospital for postmortem examination. Further investigation
of the case was handed over to Inspector Suman Kumar Sharma,
Investigating Officer (I.O) of the case…”

3. After investigation was over, charge-sheet against the accused persons
was filed before the Court for the offence punishable under Section
498A/304B/34 of the IPC and charge was framed against the accused
persons for the said offence. To substantiate their accusation,
prosecution examined twenty-six witnesses in all to prove its case.
Statement of accused persons under Section 313 of Cr.P.C was
recorded wherein they pleaded their innocence and claimed to be tried.

4. The learned Trial Court, upon analysis, examination, and evaluation
of the prosecution evidence and after considering the rival
submissions recorded acquittal against Respondents 2 to 5 for the
charged offences.

5. Aggrieved by the impugned judgment, Ms. Sunita, mother of the
deceased, has filed the present appeal. Ms. Mallika Parmar, learned
counsel appearing on behalf of the appellant contended that the view
and the ultimate conclusion recorded by the learned Trial Court in
acquitting the accused persons for the offence punishable under
Section 498A/304B/34 of the IPC is manifestly perverse,
unsustainable, tainted with non-application of mind to vital evidence,
a result of wrong interpretation of evidence of the parents of the
deceased and other substantial evidences, which has resulted into

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Smt. Sunita Anr Vs. State Ors.

miscarriage of justice. Ms. Parmar, learned counsel for the appellant
further contended that the parents of the deceased have not faltered
from their testimony regarding the harassment and ill-treatment of
their daughter in her matrimonial home and that there are no
substantial improvements in their testimonies. She also submits that
the deceased regularly faced dowry demands from her in-laws for a
bigger vehicle, which led her to commit suicide, which has become
evident from the testimonies of PW-1 (father of the deceased), PW-2
(mother of the deceased) and PW-11(sister of the deceased). The
learned counsel further contended that the learned Trial Court failed to
take notice of the suicide note in right the perspective, which clearly
establishes the guilt of the accused persons. Ms. Parmar also laid
emphasis on the fact that the deceased, Anjali, committed suicide
within 6 months of her marriage so strict view has to be taken.
Learned counsel further contended that the Trial Court has erred in
holding that no proof of dowry has been proved by the prosecution, as
DW-2 (the mediator) on the basis of photographs of the marriage
admitted during his cross examination that dowry articles were given
to the Respondents family.

6. Per contra, the learned counsel of the State adopted the arguments
made by counsel for the appellant and placed reliance on the suicide
note found from the possession of the deceased.

7. Despite opportunity none chose to appear on behalf of the
Respondents.

8. We heard the learned counsel for the parties and perused the entire
material available on record.

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Smt. Sunita Anr Vs. State Ors.

9. Before considering the case of the appellant, it is desirable to extract
the relevant provisions of Section 304B which relates to dowry death:

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.

10. In order to convict an accused for the offence punishable under
Section 304B Indian Penal Code, the following essentials must be
satisfied:

(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;

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Smt. Sunita Anr Vs. State Ors.

(iii) soon before her death, the woman must have been
subjected to cruelty or harassment by her husband or any
relatives of her husband;

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

11. When the above ingredients are established by reliable and acceptable
evidence, such death shall be called dowry death and such husband or
his relatives shall be deemed to have caused her death. If the
abovementioned ingredients are attracted in view of the special
provision, the court shall presume and it shall record such fact as
proved unless and until it is disproved by the accused. However, it is
open to the accused to adduce such evidence for disproving such
conclusive presumption as the burden is unmistakably on him to do so
and he can discharge such burden by getting an answer through cross-
examination of the prosecution witnesses or by adducing evidence on
the defence side.

12. Section 113B of the Evidence Act, 1872 speaks about presumption as
to dowry death which reads as under:

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.

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Smt. Sunita Anr Vs. State Ors.

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

13. As stated earlier, the prosecution Under Section 304B Indian Penal
Code cannot escape from the burden of proof that the harassment or
cruelty was related to the demand for dowry and such was caused
“soon before her death”. In view of the Explanation to the said section,
the word “dowry” has to be understood as defined in Section 2 of the
Dowry Prohibition Act, 1961 which reads as under:

2. Definition of ‘dowry’.- In this Act, ‘dowry’ means any
property or valuable security given or agreed to be given
either directly or indirectly-

(a) by one party to a marriage to the other party to the
marriage; or

(b) by the parent of either party to a marriage or by any
other person, to either party to the marriage or to any
other person, at or before or any time after the marriage
in connection with the marriage of the said parties, but
does not include dower or mahr in the case of persons to
whom the Muslim Personal Law (Shariat) applies.

14. To attract the provisions of Section 304B, one of the main ingredients
of the offence which is required to be established is that “soon before
her death” she was subjected to cruelty or harassment “for, or in
connection with the demand for dowry”. The expression “soon before
her death” used in Section 304B Indian Penal Code and Section 113B
of the Evidence Act is present with the idea of proximity test.

15. In order to appreciate the contention of learned counsel for the
Appellant, two issues emerge before us, (i) whether the deceased was
subjected to harassment and ill treatment in her matrimonial home

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soon before her death and; (ii) whether the accused persons can be
convicted solely on the basis of testimonies of the prosecution
witnesses. With these principles in mind, let us analyse the evidence
led by the prosecution.

16. At this stage we deem it appropriate to visit the testimonies of the
parents of the deceased i.e. PW-1(father of the deceased), PW-
2(mother of the deceased) and PW-11(sister of the deceased). PW-1
(father of the deceased) during his examination in chief deposed as
under:-

“Deceased Anjali was my daughter. On 13.11.2013 she
was married with Rohit present in the court today
(correctly identified by the witness). I had given the
dowry articles in the marriage of my daughter as per my
capacity and status. After about 10-12 days of marriage
my daughter Anjali came to my house and at that time
she was very much upset. My wife asked my daughter in
my presence as to why she is upset and on this my
daughter started weeping and said that her mother-in-
law, father-in-law, brother-in-law (dewar) all are present
in the court today used to harass her and ask
continuously demand for sarees and big vehicle. I am a
sugar patient. I was not having financial condition to be
able to give them the big vehicle. My daughter had also
told us that mother-in-law also instigates her husband to
beat her and to beat her and only then her parents will
give big vehicle. Mother-in-law, sister-in-law Monika,
brother-in-law Amit used to harass her for not bringing
the big vehicle and taunt her that motorcycle will not
serve the purpose. We somehow make our daughter
understand our position and send her to her matrimonial
home.

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Smt. Sunita Anr Vs. State Ors.

“…on 20.05.2014 Rohit came to take Anjali back to
matrimonial home. At that time also my daughter was
upset and she started weeping in the presence of me and
my wife. She said that she does not want to go to her
matrimonial home. She also stated that she would be
killed by her in laws. I and my wife talked with her and
told her “BETA AAPKE PAPER AANE WALE HAIN
AUR APKI TUITION BHI WAHIN LAGI HUI HAI, AUR
NAYA TEACHER LAGAINGE TAU BAAT NAHI
BANEGI” we also told her that after her exams will be
over on 07th June 2014 we will come alongwith 10-12
persons. Thereafter, my daughter went to her
matrimonial home with Rohit.

“… She told me that “papa you have sent me here”, they
are harassing me. Not given food since morning and not
even allowed to meet her husband. She was also asked to
have “Parda” (ghoonghat) from her husband. My
daughter also told me that her mother-in-law had taken
out the pesticides used for killing pests and she had to go
downstairs. In the meanwhile my wife took the phone
from me and started talking with Anjali. Anjali while
weeping told my wife, “MUMMY APNE MUJHE YAHAN
BHEJ KAR ACCHA NAHI KIYA YEH LOG MUJHE
MAR DENGE”… ”

17. PW-2 (mother of the deceased), during her examination in chief
deposed as under:-

“…my daughter Anjali was married on 13.11.2013 with
accused Rohit. I had given dowry articles to my daughter
Anjali which was more than sufficient and the marriage
had taken place more than our financial capacity. After
10-12 days marriage when Anjali came to my house she
was very sad. When I asked her repeatedly she started

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Smt. Sunita Anr Vs. State Ors.

crying and told me that her mother in law, father in law,
sister in law and brother in law were harassing her for
dowry, and instigating her husband to give her beatings
only then she will bring big vehicle. My daughter told me
that her husband makes a demand of big vehicle. She told
me she had stated to her husband that her father is not in
a possession to give big vehicle and is already under
loan. She told me that on her refusal to ask her father to
bring a car she was beaten by her parents in law, brother
in law (dewar), sister in law (nanad) and her husband.
She told me she was not provided food continuously for
two days and also stating “nahi khaegi to mar nahi
jaegi”. Whenever she used to visit her parental home her
mother in law asked her to bring good sarees as
according to her not given to marriage…”
“…Anjali told me that her mother in law had asked her
to bring new and costly sarees and boxes of sweets so I
gave her sarees and boxes of sweets…”

18. Testimony of PW-11(sister of the deceased), during her examination
in chief deposed as under:-

“…it is correct that one Innova car was used by the
family of Rohit at the time of marriage in which doli was
departed. As per my knowledge the said car belongs to
Rohit. It is correct that Rohit and my sister had gone to
Kerala after marriage. I do not know who had incurred
the expenses of the said trip, however, I had not given any
money to my sister for the same…”

“…It is correct that Anjali was pursuing B.com and was
also taking private tuition classes for the same. It is
incorrect to suggest that tuition fees used to be paid by
Rohit only. Vol. The same was being paid by my father. I

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Smt. Sunita Anr Vs. State Ors.

do not know what was the tuition fees, however the same
was paid by my father in my presence…”

“…I, my parents, uncle, aunt, nana, nani, cousins, bua,
fufa and Rohit, Anjali had gone to Haridwar in the month
of April, 20`4. In that trip, Rohit did not speak to any one
of us. I never spoke to Rohit about any ongoing issues
even in that trip and my parents also did not speak with
Rohit about any issues during that trip to Haridwar. I do
not know whether my parents were ever called by police
officials of PS Khyala regarding any complaint filed from
the side of Rohit’s family against our family. It is correct
that Anjali had been taken to hospital for her treatment
by the inlaws of Anjali. Vol. She had not been given food
and i.e. why she has been taken to hospital. It is incorrect
to suggest that it was brought to the notice of our family
through Ladli Pershad that Anjali was suffering from
mental illness and the same was objected by the accused
persons as it had not been disclosed to them at the time of
marriage…”

19. From the perusal of the above testimonies we find that PW-1 (father of
the deceased) deposed that he had given dowry articles in the marriage
of his daughter. He further deposed that his daughter informed her
mother that ‘her mother-in-law father-in-law, brother-in-law (dewar)
all used to harass her and ask continuously demand for sarees and big
vehicle”. PW-2 (mother of the deceased) also deposed that they had
given dowry articles in the marriage and the deceased informed that
she was subject to beatings by the accused persons on demand of car
and other items. Apart from verbal assertions nothing on record
suggests that the deceased was subject to beatings and cruelty by her
in-laws. The demand of car by the accused persons has not been

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Smt. Sunita Anr Vs. State Ors.

established by the prosecution. No complaint has been registered by
the victim or the complainants before any authority. Nothing on record
suggests that soon before death the deceased was subjected to cruelty.
Calls made by the deceased to her mother have also not been proved.
Moreover, in the month of April, PW-1 and PW-2 accompanied the
deceased along with her husband to Haridwar with family which gives
an impression of cordial relations between the parties.

20. Dr. B.N. Mishra, Medical Officer-cum-Medico Legal Expert in
Criminologist, Department of Forensic Medicine, DDU Hospital,
Delhi who conducted the post mortem on the body of the deceased,
was examined as PW-10, who deposed that the cause of death was due
to asphyxia as a result of ligature hanging and the death was a suicide.
No external injuries or internal injuries were opined by the examining
doctor and the death was declared as a suicidal death. Relevant
portion of the statement of PW-10 is as under:-

“On examination of the body, I had observed the ligature
marks on the neck of the deceased associated with
internal findings and same was consistent for suicidal
hanging. After completion of post-mortem examination, I
had opined that cause of death was due to asphyxia as a
result of ligature hanging. The manner of death was
suicide.”

21. The medical record of the deceased also does not suggest that the
deceased was subjected to physical cruelty and torture soon before
death. The testimonies of PW-1 (father of the deceased) and PW-2
(mother of the deceased) wherein they claimed physical beatings and

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Smt. Sunita Anr Vs. State Ors.

torture on their deceased daughter by the respondents also got negated
by the report of the medical experts.

22. Ms. Mallika Parmar, learned counsel for the Appellant laboured hard
on the suicide note left by the deceased, to prove cruelty and
harassment on the deceased at the hands of the accused persons. In
this context, we deem it appropriate to reproduce the suicide note left
behind by the deceased, Anjali, which reads as under:

“I am going to commit suicide. I am not happy with my
marriage. Im being given more mental stress here what I
cannot bear, from the last 10 months I have been suffered
from this mental stress. Behind this is my mother-in-law,
father-in-law, my sister-in-law. I do not want to live
anymore. They have killed me from inside.
I very much love my mother, father, brother, sister and
the entire family. You all please forgive me. I did not see
any way other than this, so I forced to take this step.”

23. Records reveal that PW-20, Ms. Sarita Sharma, Scientific Assistant,
RFSL, Chankyapuri, confirmed that the author of mark A-1 to A-23
(handwriting of the deceased on diary) and suicide note (Ex.PW-
18/P1) are same, but failed to form an opinion about the signatures on
the suicide note (Ex.PW-18/P1) as no specimen signatures were
provided for comparisons. As such the report of PW-20 was inclusive.
Moreover, the recovery of suicide note was doubtful as PW-18 (ASI
Abhinandan) and PW-19 (Insp. Suman Kr. Sharma, IO) gave
contradictory statements with regard to place from the suicide note of
the deceased was recovered. Lastly, the testimony of Dr. Anuj Mittal
(DW-1) cannot be lost sight of, wherein it has come on record that the

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Smt. Sunita Anr Vs. State Ors.

deceased was suffering from depression, relevant portion of which is
reproduced below:

“Smt. Anjali, W/o Rohit Kumar, R/o Raghubeer Nagar,
New Delhi has been examined by me on 27.02.2014. Her
OPD card registration no. 201120 is Ex.DW1/A and the
same is in my handwriting and bears my signatures at
point A. It is correct that she was suffering from
depression from last about two and a half years and she
had suicidal ideation as mentioned in her OPD card
Ex.DW1/A at portion B. I had again examined the patient
Anjali on 13.03.2014 by me and prescribed the medicines
for depression as mentioned in the OPD card at portion
C which also bears my signature at point D. It is correct
that as per the illness she was suffering from, the patient
was at the risk of committing suicide.”

“…I had written the brief history of the patient at point B.
It is wrong to suggest that the portion B was later on
inserted on Ex.DW1/A. Vol. In order to save the paper,
the history was given at the side of the prescription and
not beneath the date. I had written the brief history on the
basis of history given by the patient that she was suffering
from depression for the last two and a half years. As per
the history given by the patient, sadness had started from
last about two and a half years…”

24. It is also an accepted fact that the death occurred in unnatural
circumstances. However, there has been no explicit demand for dowry
from the Respondents, all the statements made by the prosecution
witnesses are general statements indicating nothing concrete.
Relevance, if given, to the suicide note depicts mental stress to the
deceased, which could be caused due to normal wear and tear of her
married life. From the evidences and facts that have been brought to

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Smt. Sunita Anr Vs. State Ors.

our notice, it is apparent that no cruelty was faced by her soon before
her death. On careful analysis of the prosecution evidence and
documents on record, the Respondents cannot be held guilty for
committing an offence punishable under Sections 498A/304B/34 IPC.

25. It is a cardinal principle of criminal jurisprudence that the prosecution
is supposed to prove its case beyond reasonable doubt by leading
reliable, cogent and convincing evidence. Similarly, it is established
principle that the prosecution is supposed to stand on its own legs and
cannot derive benefits whatsoever from the weakness, if any, in the
defence of accused. The burden of proof of the version of prosecution
in criminal trial, throughout trial lies upon prosecution and never shifts
to accused who is entitled to the benefit of every reasonable doubt in
the prosecution story and any such doubt entitles him to acquittal.

26. It is a settled law that while deciding an appeal filed by the
complainant, in case two views are possible, the High Court must
not grant leave, if the Trial Court has taken one of the plausible
views, in contrast thereto in an appeal filed against acquittal. Upon
re-appraisal of evidence and relevant material placed on record, in
case the High Court reaches a conclusion that another view can
reasonably be taken, then the view, which favours the accused,
should be adopted unless the High Court arrives at a definite
conclusion that the findings recorded by the Trial Court are
perverse, the High Court would not substitute its own views on a
totally different perspective.

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Smt. Sunita Anr Vs. State Ors.

27. In the case of State of Madhya Pradesh v. Dal Singh Ors., reported
at 2013 (8) SC 625, the Hon’ble Supreme Court has held that the
appellate court while considering the appeal against the judgment of
acquittal shall interfere only when there are compelling and substantial
reasons for doing so and if the judgment is unreasonable and relevant
materials have been unjustifiably ignored, it would be a compelling
reason for interference.

28. While deciding the present appeal, the aforestated principles culled out
by the Apex Court are to be kept in view. In the present case from the
evidence which has emerged on record, we conclude that the learned
Trial Court rightly observed that the prosecution failed to prove its
case against the respondent beyond reasonable doubt, the appellant has
not been able to make a case against the acquittal of the respondents.

29. In totality of the facts and circumstances, we do not find any infirmity
in the impugned judgment. Accordingly, no grounds are made out to
interfere in the impugned judgment passed by learned Trial Court and
the appeal is dismissed.

SANGITA DHINGRA SEHGAL, J

SIDDHARTH MRIDUL, J

JANUARY 17, 2019
SU

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