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* IN THE HIGH COURT OF DELHI AT NEW DELHI
R-19 20
Date of decision: 7th September, 2018
+ CRL.A. 307/2003
SONU @ MUNESH @ MAHESH …..Appellant
Through: Mr Ramesh Gupta, Senior Advocate
with Mr Bharat Sharma, Advocates.
versus
STATE OF DELHI ….Respondent
Through: Mr Kewal Singh Ahuja, APP for the
State
+ CRL.A. 309/2003
SANJEET …..Appellant
Through: Mr Ramesh Gupta, Senior Advocate
with Mr Bharat Sharma, Advocates.
versus
STATE OF DELHI ….Respondent
Through: Mr Kewal Singh Ahuja, APP for the
State
CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
Dr. S. Muralidhar, J.:
1. These two appeals are directed against the judgment dated 22 nd March
2003 passed by the learned Additional Sessions Judge, New Delhi in
Sessions Case No. 39/2001 arising out of FIR No. 130/2001 convicting both
Crl.A. Nos. 307/2003 309/2003 Page 1 of 21
Appellants Sanjeet Malik (Accused No.1 – „A-1‟)) and Sonu @ Munesh @
Mahesh („A-2‟) for the offences under Sections 498-A, Section 302 and
Section 304-B read with Section 34 of the Indian Penal Code („IPC‟) and the
order on sentence dated 31st March 2003 whereby each of the Appellants
was sentenced to imprisonment for life along with fine of Rs.50,000/-, and
in default payment of fine to further undergo imprisonment for one year for
each of the offences punishable under Section 302 IPC and 304-B IPC; and
to three years rigorous imprisonment („RI‟) along with fine of Rs.10,000/-
each, and in default of payment of fine to further undergo six months
imprisonment for the offence under Section 498-A IPC. The sentences were
directed to run concurrently.
2. At the outset it requires to be noticed that as far as A-2 is concerned, by
an order dated 31st August, 2005 passed by this Court in Crl. Appeal
No.307/2003, the sentences awarded to him were suspended during the
pendency of the appeal. As far as A-1 is concerned, by an order dated 29th
August, 2007 passed in Crl. Appeal No.309/2007, his sentence was
suspended as well.
Charge
3. The charge against the Appellants was that both of them along with their
mother Prakashi Devi (who remained a proclaimed offender throughout –
„PO‟) subjected the deceased Renu, wife of A-1, to cruelty by demanding
dowry between 18th February, 1999 to 31st March, 2001 at their house at
Village Masoodpur, New Delhi thereby committing an offence punishable
under Section 498-A read with Section 34 IPC; secondly, all of them in
Crl.A. Nos. 307/2003 309/2003 Page 2 of 21
furtherance of their common intention caused the death of the deceased by
bodily injuries other than under normal circumstances within seven years of
marriage and that she was subjected to cruelty soon before her death in
connection with demand of dowry thereby committing the offence
punishable under Section 304-B read with Section 34 IPC. The alternative
charge under Section 302 read with 34 IPC was also framed against all of
them, for having committed the murder of the deceased.
Trial
4. On behalf of the prosecution, 14 witnesses were examined. When the
incriminating circumstances were put to the accused, each of them denied
them. As far as A-1 is concerned, he stated as under:
“I had an altercation with my wife when I came back from my
work place. I had found the child weeping on second floor and
my wife was on the first floor washing cloth. She told me that I
should go upstairs and she would be coming soon. I went
upstairs and try to sooth baby and try to handover him but the
baby kept on crying and Renu did not turn up. I again came
downstairs and told my wife that she was not paying heed to
what I say the child was continuing crying and she was not
coming up. I insisted on her coming up leaving the work, she
told that child was not going to die by weeping. On this I got
enraged and gave her two three slaps and then my wife
accompanied me upstairs and sooth the child. Thereafter, when
we went to bed, my wife was full of anger. I tried to console her
and expressed my sorry-ness for getting enraged. I thereafter
went in sleep. After some time, I heard cries of my child, and
woke up and saw Renu was not with my bedside. I went
upstairs. She was not there also. Then I came to first floor and
called her name but nobody replied. Then I found bathroom
door closed inside. I bang the door but nobody opened it. I then
taped through ventilator and found that she was hanging inside
the bathroom. Then I immediately broke open the door and gotCrl.A. Nos. 307/2003 309/2003 Page 3 of 21
untied the rope and got her down.”
5. As far as A-2 is concerned, he stated as under:
“Sanjeet with his wife and child was living separately from us.
Sanjeet used to live in new building and we use to live in old
house. Sanjeet was living on second floor and we were living at
first floor. I am innocent and I have been falsely implicated in
this case. I used to visit my material uncle whenever he had
more agriculture work and needed a helping hand and used to
stay home when there was no work with my material uncle. I
also used to take fabrication contracts and used to do job work
on orders. My shop and my brother shop was same but our
business was different.”
Defence evidence
6. Two defence witnesses were examined. Rattan Lal (DW-1), who was an
intermediary in the marriage of A-1 with the deceased on 18th February,
1999, inter alia stated that at the time of the marriage, there was no
particular settlement about any gifts to be given. When he enquired from the
parents of the deceased whenever they visited his jewellery shop, they
would tell him that the deceased was living happily („moj mein hai’). Even
the deceased, who used to visit a temple close to DW-1‟s shop, had told him
that she was „living alright‟ when he enquired about her well being. When
asked whether he knew the cause of the death of the deceased, DW-1 stated
that “people were saying that she hanged herself”. He also stated that he had
learnt from a lady named Simbal that a quarrel had taken place between the
deceased and A-1 over feeding of milk to the child and that when the
deceased had refused to do so, A-1 had slapped her. DW-1 stated that he did
not go to the PS after learning about the death of the deceased.
Crl.A. Nos. 307/2003 309/2003 Page 4 of 21
7. Bhole Ram (DW-2) was the maternal uncle of A-1 and A-2. He inter alia
stated that A-2 was living with him since 1995-96 and worked with him in
his fields. According to him, after hearing of the death of the deceased, he
and A-2 came to Delhi on a scooter and returned back on the next day.
Case of the prosecution
8. The case of the prosecution was that soon after the marriage between the
deceased and A-1 on 18th February, 1999, the deceased started being
subjected to cruelty in her matrimonial home. She complained about this to
her parents Mahesh Chand Chaudhary (PW-1) and Kaushalya Devi (PW-3).
Laxmi Devi (PW-2) is the sister of PW-1 and lived in Gurgaon. According
to her, the deceased had come to her house in the last week of May, 2000,
when she was in an advanced stage of pregnancy. The deceased disclosed to
PW-2 that her mother-in-law and the two accused had beaten her and turned
her out of the house. PW-2 then called and informed PW-1, who reached the
house of PW-1 from Rajasthan after about 5/6 days. A-1 was then called to
the house of PW-2 and counselled by both PW-1 and PW-2 that he should
not do such things and should take care of the deceased since she was
pregnant, and the deceased was sent back with him thereafter.
Investigation
9. On the fateful day i.e. 31st March, 2001, at around 5.20 pm, information
was received which was reduced in writing as DD No.23-A about the death
of a lady at her matrimonial home in Masoodpur Village. Sub Inspector (SI)
Prabhu Dayal (PW-12) attached to PS Vasant Kunj reached the house along
with Constable Vinod Kumar (PW-6). In a room on the first floor of the
Crl.A. Nos. 307/2003 309/2003 Page 5 of 21
house, he found the lady lying on a charpai (cot). On making enquiries, he
learnt that she had hung herself in the bathroom. PW-12 found the chunni
(thin cloth worn on head) hanging in the bathroom tied to a pipe and found
that this was hardly 4/5 feet above the bathroom floor. According to PW-12,
he was of the opinion that such a hanging was not possible and upon
learning that it had been only two-two and a half years since the wedding, he
then informed the senior officers as well as the Sub-Divisional Magistrate
(„SDM‟). He also called the crime team to the spot and took photographs
from his camera (Ex. PW-12/B-1 to B-12). PW-12, however, handed over
the investigation to SI Navat Singh (PW-13) on 1st April, 2000. PW-13 then
visited the spot and a site plan was also prepared.
10. On 7th April, 2001, on the basis of secret information PW-13 arrested A-
1. He arrested A-2 on 17th April, 2001. As regards Prakashi Devi (PO),
proceedings under Section 82/83 of the Code of Criminal Procedure („Cr
PC‟) against her were conducted. An inquest report was prepared by SI P.C.
Yadav (PW-8) which is Ex.PW-12/G-1 to G-4. Importantly, this witness
admitted that “I did not show chunni to the doctor. The chunni was seized
from the spot but not shown by me to the doctor.”
Impugned judgment of the trial Court
11. In the impugned judgment dated 22nd March, 2003, the trial Court came
to the following conclusions:
(i) With Dr. Arvind Thergaonkar (PW-5), who conducted the post-
mortem on the body of the deceased, having given the opinion that it
Crl.A. Nos. 307/2003 309/2003 Page 6 of 21
was a case of strangulation and homicide and not a case of suicide,
this was a clear-cut case of murder.
(ii) Unfortunately, the ACP and the SHO of the concerned PS closed their
eyes and did nothing to investigate the case, despite there being
sufficient evidence at the spot to register a case of murder. This was a
case of homicide and not suicide. However, neither the SHO nor the
ACP took immediate steps to start investigation.
(iii) The evidence of PWs 1 and 2 was sufficient to bring home the
charges under Section 498-A/304-B read with Section 34 IPC.
(iv) The medical evidence clearly showed that the cause of death was
asphyxia following strangulation “possibly caused by ligature mark.”
(v) It was an undisputed fact that the deceased died a homicidal death.
The evidence of PWs 1, 2, 3 and 11 bears out the fact that the in-laws
of the deceased were not happy with the dowry she had brought and
kept harassing her to bring more money from her parents. The plea
that A-2 used to live in his uncle‟s house is an afterthought and
appeared to have been taken to escape the natural consequences of the
act of A-2.
(vi) The plea of A-1 about having come back from work and thereafter
having slapped his wife as she was neglecting the child, and that he
was asleep when he heard the loud cries of the child again and then
went looking for her has all been disbelieved by the trial Court. The
doors of the bathroom were not found broken by SI Prabhu Dayal
(PW-12), as was claimed by A-1, who stated that he had broken the
door down after peeping into the bathroom and spotting the deceased
hanging. It was not possible to accept that this was a case of suicide
Crl.A. Nos. 307/2003 309/2003 Page 7 of 21
because the height of the tap to which the chunni was tied was not
sufficient for hanging to take place.
(vii) The offences both under Section 498-A and 304-B IPC were made out
against all the accused.
(viii) The trial Court concluded that both A-1 and A-2 had jointly killed the
wife of A-1 and therefore the case under Section 302/34 IPC was
made out against them. A further question was whether a person can
be convicted for both under Section 302 and 304-B IPC
simultaneously. Ultimately the trial Court found that all the charges
against the accused stood proved beyond reasonable doubt.
12. The trial Court proceeded to sentence the two Appellants in the manner
indicated hereinbefore.
13. This Court has heard the submissions of Mr Ramesh Gupta, learned
Senior Counsel appearing for the Appellants and Mr. Kewal Singh Ahuja,
learned APP for the State.
14. As far as A-2 is concerned, his presence at the spot is itself doubtful. No
witness has spoken about having seen A-2 present at or around the time of
the incident. His plea of alibi was backed up by the deposition of DW-2,
who remained firm in his cross-examination.
15. This is a case of circumstantial evidence. The law in that regard is fairly
well settled. In Brajesh Mavi v. The State (2012) 7 SCC 45 the Supreme
Court explained:
Crl.A. Nos. 307/2003 309/2003 Page 8 of 21
“From the several decisions of this court available on the issue
the said principles can be summed up by stating that not only
the prosecution must prove and establish the incriminating
circumstance(s) against the accused beyond all reasonable
doubt but the said circumstance(s) must give rise to only one
conclusion to the exclusion of all others, namely, that it is
accused and nobody else who had committed the crime.”
16. What is not in dispute is the date of marriage being 18th February, 1999
and that the death of the deceased occurred on 31st March, 2001 i.e. within
seven years of marriage. This explains why the charge was framed for the
offences punishable under Sections 498-A and 304-B IPC. The prosecution
first approached the case with the broad premise of the deceased dying an
unnatural death and being subjected to harassment and cruelty for bringing
dowry. Later, the alternate charge under Section 302 IPC was framed.
Medical evidence
17. One of the critical elements for proving the offence punishable under
Section 302 IPC is the medical evidence. Here the deceased died, according
to the Appellants, by committing suicide by hanging whereas the case of the
prosecution is that she was murdered by both accused.
18. Dr. Arvind Thergaonkar (PW-5) is the doctor who conducted the post-
mortem examination, on 1st April, 2001. For some reasons, however, the
post-mortem report was signed more than one and a half months later on
17th May, 2001. The opinion in the post-mortem report reads thus:
“The cause of death is asphyxia following strangulation,
possibly caused by soft ligature material. All injuries are anteCrl.A. Nos. 307/2003 309/2003 Page 9 of 21
mortem in nature. I visited the scene of crime along with IO on
16.05.2001. Time since death – around about 42-46 hours.”
19. What is peculiar about this port-mortem report is that although the port-
mortem began on 2nd April, 2001 at 10.30 am and concluded at 12 noon on
the same day, the port-mortem report was not signed till 17th May, 2001.
There is a remark that PW-5 visited the scene of crime along with the
Investigating Officer („IO‟) on 16th May, 2001.
20. The peculiarity does not stop there. More than a month thereafter on
28th June, 2001, pursuant to a written request to him made by the IO, Dr.
Arvind Thergaonkar (PW-5) gave a subsequent opinion in which he stated
that on the basis of the findings in his own port-mortem report, such findings
were “consistent with homicidal – strangulation”.
21. It is important at this stage to carefully peruse the medical evidence
because it is central to determine whether the death of the deceased was
homicidal or suicidal. It should be recalled that PW-12, the initial IO, was
the first police official to reach the spot along with PW-6. He made inquiries
and learnt that the deceased had hung herself in the bathroom. Although in
the Court he deposed that he found “her chunni in the bathroom… with the
bathroom pipe which was hardly 4/5 ft. above the bathroom floor”, in his
statement under Section 161 Cr PC, he makes no mention of actually
entering the bathroom and seeing its condition.
22. The Court has perused the photographs purportedly taken by PW-12
when he reached the spot. The photographs show that the chunni is tied to
Crl.A. Nos. 307/2003 309/2003 Page 10 of 21
the tap below the geyser which is at some height, but since there is no
photograph of the floor of the bathroom, it is not possible from that
photograph (Ex. PW-12/B-4) to gauge the height at which the chunni is tied.
The confrontations of PW-12 in his cross-examination with his previous
statement bring out the major improvements made by him on this aspect in
his deposition in the Court. They read as under:
“I do not remember the date when my statement was recorded
by the IO. I had told IO that the dead body of lady was lying on
charpai. Confronted with Ex.PW12/DA where not so recorded.
I had told IO that the chunni was found tied with the bathroom
pipe, which was hardly 4-5 ft. above the floor of bathroom.
Confronted with Ex.PW12/DA where no recorded that height of
pipe was 4-5‟ from the floor but tying of chunni is recorded
there. I had told the IO that husband and his other family
members had told me that Renu had hanged herself in the
bathroom but after seeing the bathroom and the chunni tying
only about 4-5 ft. above the floor and that in my opinion,
hanging was not possible. Confronted with Ex.PW12/DA where
not so recorded.
I had told IO that I had taken photographs from my camera and
gave negatives and positives to IO. Confronted with
Ex.PW12/DA where not so recorded.”
23. The IO who took over charge of the investigation from PW-12 i.e. PW-
13 admitted that:
“I did not call crime team on the spot because crime team visited the
spot prior to investigation handed over to me.”
24. However, no such crime team report has actually been exhibited. PW-13
also admitted to not lifting finger prints from the bathroom which was
purportedly the place of occurrence. He also admitted that:
“I did not show chunni to the doctor. The chunni was seized
Crl.A. Nos. 307/2003 309/2003 Page 11 of 21
from the spot, but not shown by me to the doctor.”
25. With the initial opinion given by PW-5 in the port-mortem report being
that strangulation by “soft ligature material” was possible, it was important
for the IO to have shown the chunni to the doctor to ask him whether
strangulation was possible by that ligature material. This was a serious lapse
in the investigation.
26. Delving further into the port-mortem report, it is seen that the specific
observations of PW-5 therein as regards the external examination and
ligature mark were as under:
“External Examination:
Injuries No.1.Nail mark abrasions were present on front of the
neck parallel to each other size 1 cm x 0.1 cm located 6 cm
below the chin.
2. Nail mark abrasions were present on front of neck 1 cm x 0.1
cm transversely placed.
3. Two oval irregular shaped abrasions each 0.5×0.5 cm present
on chin parallel to each other.
4. Abrasion on right side of the neck 0.3 x 0.3 cm in size.
Ligature Mark:
Ligature mark is 4 cm long x 1.5 cm wide, transversally placed
on front of the neck and slight / oblique at left. It is superficial.
It is located 6 cm below the chin and 8 cm above the
suprasternal notch. The mid circumference of the neck was 28
cm. The margins of the ligature marks were soft. No ligature
material was supplied at the time of post-mortem examination.”
27. The ligature mark was „transversally placed on the front of the neck and
Crl.A. Nos. 307/2003 309/2003 Page 12 of 21
slightly oblique at left‟. This has some significance in terms of medical
literature. One of the characteristics as far as hanging is concerned, is the
ligature mark. In Modi’s Jurisprudence, Chapter-20, Page-510, the
differences between hanging and strangulation have been set out in a tabular
form. Specific to ligature marks, the differences are noted as under:
“Hanging Strangulation
6. Ligature mark – Oblique, non- Ligature mark – Horizontal or
continuous placed high up in the transverse continuous, round
neck between the chin and the the neck, low down in the neck
larynx, the base of the groove or below the thyroid, the base of
furrow being hard, yellow and the groove or furrow being soft
parchment-like. and reddish.”
28. As regards the fracture of the larynx and trachea, those are rare in the
case of hanging, but present in the case of strangulation. Scratches on the
face and neck are usually not present in hanging, but usually present in the
case of strangulation. Added to this is the fact that the port-mortem report
did not show the aforementioned fractures. Mr Ramesh Gupta has also
produced medical literature which indicates that hanging is possible even
from an insufficient height, whereby even if a part of the weight is
transferred to the hanging rope or other device, the person may lose his life.
In State of Rajasthan v. Ramesh (2015) 17 SCC 673 it was held:
“Hanging is a form of death, produced by suspending the body
with a ligature round the neck, the constricting force being the
weight of the body, or a part of the body weight. In other words,
the hanging is the ligature compression of the neck by the
weight of one’s body due to suspension. According to Modi’s
Medical Jurisprudence and Toxicology (23rd Edition),
‘Strangulation’ is “the compression of the neck by a force other
than hanging. Weight of the body has nothing to do with
strangulation. Ligature strangulation is a violent form of deathCrl.A. Nos. 307/2003 309/2003 Page 13 of 21
which results from constricting the neck by means of a ligature
or by any other means without suspending the body. When
constriction is produced by the pressure of the fingers and
palms upon the throat, it is called as throttling. When
strangulation is brought about by compressing the throat with a
foot, knee, bend of elbow, or some other solid substances, it is
known as mugging.”
29. In the instant case, the port-mortem report states as under as regards the
status of the neck:
“Neck thorax – Soft tissues of neck showed effusion of blood in
sub-coetaneous tissues, platysma, sternomastoid and below the
ligature marks etc. The soft tissue attachment or thyroid cricoids
and hyoid showed effusion of blood and congestion, they were
intact. Lungs showed congestion oedema and exude dark colour
blood on squeezing, the purl surface showed haemorrhages
spot. Heart was normal.”
30. It needs to be noticed that the port-mortem report was not finalized by
the doctor for more than one a half months after conducting the port-
mortem. Further his „final opinion‟ was given even later i.e. more than a
month after the port-mortem report. There is no satisfactory explanation for
these delays. Added to this is his answer in the cross-examination that there
was no sign of struggle on any other part of the body other than the nails
marks and scratches and the abrasions on the neck. He also clarified that he
does not usually visit the spot in all cases and that the visiting of the spot in
the present case “was my own decision after I discussed the case with IO…”
31. In this particular case, where the medical evidence is so crucial to decide
whether this was a case of homicide or suicide, the case of the prosecution is
required to be supported by more categorical and clear medical evidence
Crl.A. Nos. 307/2003 309/2003 Page 14 of 21
than what is available on record.
Errors of the trial Court
32. The trial Court appears to have entered into the realm of conjectures and
surmises on certain aspects of medical evidence, of which judicial notice
could not have possibly been taken by it. For instance, the trial Court
observed:
“One can see that the chunni has been tied to water-tap pipe,
which goes to geyser and the distance between floor and water
tap could not have been more than 5ft. The ceiling ©f bathroom
itself is always lower and it is- generally at 8.5ft. or 9 ft. The
geyser affixed below the ceiling is more than 2ft. long and the
pipe going from tap to geyser is more than one ft. long.
Distance can easily be seen because of the tiles used in the
bathroom and each tile is around 4″ wide and a counting of tiles
can give actual distance from the floor to the tap. No person can
hang himself by tying a chunni with a tap about 5ft. high from
the floor. Moreover, report of post mortem Doctor categorically
proves it that it was not a case of suicide but it was a case of
homicide.”
33. This Court is not able to appreciate the above approach of the trial Court
as these are not matters of common knowledge. The above conclusions
ought to have been based on expert opinion. This Court also is not able to
concur with the conclusion of the trial Court that the port-mortem report
„categorically proves‟ that it was not a case of suicide. For the reasons
already explained, it is not possible for the Court to come to such a
conclusion.
34. This Court also finds that the trial Court entered into another realm of
Crl.A. Nos. 307/2003 309/2003 Page 15 of 21
conjecture when it observed as under:
“The photographs of deceased show that she was not a weak
and frail girl and was a healthy girl. I consider that she was
murdered by accused persons collectively. If accused Sanjeet
alone had been tightening the noose around her neck, perhaps
she would have been able to liberate herself, because. accused
Sanjeet, who has been appearing in court, is not a stout man but
is a man of ordinary thin structure. It seems that deceased was
murdered by two persons, who gave her no chance to liberate
herself and her physical force did not suffice herself to liberate
herself.”
35. In this regard, it must be noticed that there was no evidence at all to
show that A-2 was present at the spot. When PW-12 reached the spot, he
only found A-1 present but not A-2. A-2 and his mother were in fact
residing on a different floor in the same building. It is also the case of A-2
that he was actually with his maternal uncle (DW-2), and in order to prove
the alibi he has examined DW-2, whose deposition has actually not been
seriously challenged for any major contradiction. With there being no
evidence to show that anyone other than A-1 was in fact present in the house
at the time of the incident, for the trial Court to base its conclusion about the
guilt of A-2 on the above surmises and conjectures, was a serious error.
36. The trial Court also appears to have made a further serious error by
convicting the Appellants under both offences i.e. Section 302 and 304-B
IPC on the specious reasoning that “such a course is available, if a person
kills his wife, because she has not brought sufficient dowry.” The trial Court
overlooked the fact that Section 302 IPC is the „alternative‟ charge.
37. The settled legal position in this regard has been explained by the
Crl.A. Nos. 307/2003 309/2003 Page 16 of 21
Supreme Court in Jasvinder Saini v. State (Govt. of NCT of Delhi) (2013) 7
SCC 256 in the following words:
“13. Be that as it may the common thread running through both
the orders is that this Court had in Rajbir’s case (supra) directed
the addition of a charge under Section 302 Indian Penal Code to
every case in which the accused are charged with Section 304-
B. That was not, in our opinion, the true purport of the order
passed by this Court. The direction was not meant to be
followed mechanically and without due regard to the nature of
the evidence available in the case. All that this Court meant to
say was that in a case where a charge alleging dowry death is
framed, a charge under Section 302 can also be framed if the
evidence otherwise permits. No other meaning could be
deduced from the order of this Court.
It is common ground that a charge under Section 304B Indian
Penal Code is not a substitute for a charge of murder punishable
under Section 302. As in the case of murder in every case under
Section 304B also there is a death involved. The question
whether it is murder punishable under Section 302 Indian Penal
Code or a dowry death punishable under Section 304B Indian
Penal Code depends upon the fact situation and the evidence in
the case. If there is evidence whether direct or circumstantial to
prima facie support a charge under Section 302 Indian Penal
Code the trial Court can and indeed ought to frame a charge of
murder punishable under Section 302 Indian Penal Code, which
would then be the main charge and not an alternative charge as
is erroneously assumed in some quarters. If the main charge of
murder is not proved against the accused at the trial, the Court
can look into the evidence to determine whether the alternative
charge of dowry death punishable under Section 304B is
established. The ingredients constituting the two offences are
different, thereby demanding appreciation of evidence from the
perspective relevant to such ingredients.”
38. In other words, only if the charge under Section 304-B IPC were to fail
that the Court can proceed to examine if the charge under Section 302 IPC
Crl.A. Nos. 307/2003 309/2003 Page 17 of 21
would stick and that is why it has been suggested that it should be framed as
an alternative charge. It was never intended that a person could be convicted
for the offences both under Section 302 as well as 304-B IPC.
39. In the present case, this Court is satisfied that the prosecution has not
been able to prove the charge under Section 302 IPC either against A-1 or
A-2 and that both of them are entitled to the benefit of doubt as far as this
charge is concerned.
Charge under Section 304-B IPC
40. Turning now to the charge under Section 304-B IPC, one of the
important ingredients is that soon prior to the death of the deceased, she
should have been subjected to cruelty and harassment for the purposes of
dowry.
41. Even according to the Appellant (A-1), what happened immediately
prior to the death of the deceased was that there was an altercation in which
he slapped his wife and she was very angry as a result thereof. He did claim
to have apologized to his wife but clearly she was not assuaged. When A-1
woke up after having gone to sleep due to the cries of the child, he found
that the deceased had committed suicide in the bathroom.
42. The role of A-2 in all of this is non-existent. The prosecution has not
even attempted to lead any evidence in that regard. Clearly therefore, A-2
can by no stretch of imagination be convicted for the offence under Section
304-B IPC.
Crl.A. Nos. 307/2003 309/2003 Page 18 of 21
43. As far as A-1 is concerned, the altercation was not about dowry at all. It
was about giving milk to the child who was crying. Therefore, at the highest,
it could be said that as a result of A-1 slapping the deceased, she was so
mentally disturbed that it led her to commit suicide. The Court considers that
on the basis of the evidence that is available on record, the conviction of A-1
for the offence under Section 304-B IPC should be converted to one under
Section 306 IPC i.e. abetment to commit suicide.
Offence under Section 498-A IPC
44. That leaves us with the offence punishable under Section 498-A IPC. On
this aspect, the evidence of PWs 1 and 3 i.e. the parents of the deceased is
clear and consistent. They do not appear to have made any major
improvements over their respective statements to the police under Section
161 Cr PC. PW-2 has further corroborated their evidence by confirming that
the deceased had come to her house even earlier in May, 2000, after she was
treated cruelly by the in-laws for not bringing dowry. Even in this regard, as
far as the allegations against A-2 are concerned, they appear to be vague and
not very specific.
45. The allegations against A-1 would obviously be on a higher footing.
With A-2 not even staying with A-1 and the deceased, but in a separate flat,
and in any event taking into consideration the fact that A-2 has led evidence
that he was in fact with his maternal uncle (DW-2) most of the time, it
cannot be said that there is sufficient evidence to bring home the charge of
Section 498-A IPC against A-2. However, the Court is satisfied that the
evidence on record is sufficient to bring home the guilt of A-1 for the
Crl.A. Nos. 307/2003 309/2003 Page 19 of 21
offence punishable under Section 498A IPC.
Conclusion
46. The net result of the above discussion is as under:
(i) A-2 is acquitted of all the offences with which he has been charged
and the impugned judgment of conviction and consequent order on
sentence qua A-2 is hereby set aside.
(ii) |A-1 is acquitted of the offences under Section 302 IPC. His
conviction for the offence under Section 304-B IPC is converted into
the conviction for the offence under Section 306 IPC. His conviction
for the offence punishable under Section 498-A IPC is affirmed.
(iii) The appeal filed by A-2 being Crl. Appeal No. 307 of 2003 is hereby
allowed.
(iv) As far as the sentence of A-1 is concerned, for both offences under
Section 498-A IPC as well as Section 306 IPC, he is sentenced for
each to the period already undergone, with both sentences having run
concurrently, including the default sentence for non-payment of fine.
Crl. Appeal No. 309 of 2003 filed by A-1 is accordingly disposed of
in the above terms.
47. With A-1 having already served out his sentence and with A-2 having
been acquitted, the personal bonds and surety bonds furnished by each of
them hereby stand discharged.
48. Both the Appellants will fulfil the requirement of Section 437-A Cr PC
to the satisfaction of the trial Court at the earliest.
Crl.A. Nos. 307/2003 309/2003 Page 20 of 21
49. The trial Court record be returned together with a certified copy of this
judgment.
S. MURALIDHAR, J.
VINOD GOEL J.
SEPTEMBER 07, 2018
rd
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