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Sunil vs The State (Govt Of Nct Of Delhi) on 20 January, 2014

Delhi High Court Sunil vs The State (Govt Of Nct Of Delhi) on 20 January, 2014Author: V. K. Jain

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment reserved on: 10.01.2014 Date of Decision: 20.01.2014

+ CRL.A. 540/2013

RAMESH KUMAR ….. Appellant Through: Mr R.S. Malik and Mr Sahil Malik,

Advs.

versus

THE STATE (GOVT OF NCT OF DELHI) ….. Respondent Through: Mr. Feroz Khan Ghazi, APP for the

State.

+ CRL.A. 571/2013

SUNIL ….. Appellant Through: Mr R.S. Malik and Mr Sahil Malik,

Advs.

versus

THE STATE (GOVT OF NCT OF DELHI) ….. Respondent Through: Mr. Feroz Khan Ghazi, APP for the

State.

+ CRL.A. 572/2013

SAHIB ….. Appellant Through: Mr R.S. Malik and Mr Sahil Malik,

Advs.

versus

THE STATE (GOVT OF NCT OF DELHI) ….. Respondent Through: Mr. Feroz Khan Ghazi, APP for the

State.

+ CRL.A. 574/2013

RAJ RANI ….. Appellant Through: Mr R.S. Malik and Mr Sahil Malik,

Advs.

versus

Crl. Appeal No540/2013 & connected appeals Page 1 of 24 THE STATE (GOVT OF NCT OF DELHI) ….. Respondent Through: Mr. Feroz Khan Ghazi, APP for the

State.

+ CRL.A. 576/2013

RAVINDER @ KUKU ….. Appellant Through: Mr R.S. Malik and Mr Sahil Malik,

Advs.

versus

THE STATE (GOVT OF NCT OF DELHI) ….. Respondent Through: Mr. Feroz Khan Ghazi, APP for the

State.

+ CRL.A. 578/2013

MANJU ….. Appellant Through: Mr R.S. Malik and Mr Sahil Malik,

Advs.

versus

THE STATE (GOVT OF NCT OF DELHI) ….. Respondent Through: Mr. Feroz Khan Ghazi, APP for the

State.

CORAM:

HON’BLE MR. JUSTICE V.K.JAIN

JUDGMENT

V.K.JAIN, J.

On 6.11.2009, deceased Priyanka, wife of the appellant Ramesh Kumar, daughter-in-law of the appellants Sahib Singh and Raj Rani and sister-in-law of the appellants Manju, Ravinder and Sunil was brought to Saroj Hospital & Heart Institute, Rohini by the appellant Ramesh with history of poisoning. The information in this regard was given by Duty Constable to Police Station Alipur and was recorded there vide DD No.21A. She died soon after arrival at the hospital and information in this regard as given by Dr. Ravi

Crl. Appeal No540/2013 & connected appeals Page 2 of 24 Gupta of the hospital to the Police Station Alipur at about 8.30 pm and was recorded their vide DD No.14A. On death of Priyanka, statement of her father Shri Sukhbir Singh was recorded by the Special Executive Magistrate. In his statement, Shri Sukhbir Singh stated that Priyanka got married to Ramesh in April-2007, but one month after marriage, her in-laws started harassing her. He also alleged that one day they broke her nasal bone, for which she was operated in the hospital in Prashant Vihar. He further alleged that since very beginning, dowry was demanded from him and one day Priyanka informed him on telephone, of the beatings given to her and harassment meted out to her and asked him to call her back through her brother. After half an hour, Ramesh informed him on telephone that his daughter had consumed poison and they were taking her to Jagjivan Ram Hospital. He suspected that his daughter was killed for dowry. He named all the six appellants in his complaint to the Special Executive Magistrate. On the basis of statement given to him by Shri Sukhbir Singh, the Special Executive Magistrate directed registration of a case, whereupon an FIR under Sections 498A/304B of IPC was registered and the investigation was handed over to ASI Hari Om. The postmortem on the dead body of Priyanka was conducted in Babu Jagjivan Ram Samarak Hospital and four ante mortem injuries caused by blunt force were found on her dead body. Injuries number 1 and 2 were opined to be of recent duration whereas injuries number 3 and 4 were stated to be four-five days old.

2. All the appellants were charged under Section 498A and 304B of IPC read with Section 34 thereof. Since they all pleaded not guilty to the charge, as many as 17 witnesses were examined by the prosecution. One witness was also recorded in defence.

3. The following, according to the complainant, were the demands made by the appellants from time to time:-

Crl. Appeal No540/2013 & connected appeals Page 3 of 24 (a) demand by the appellant Sahib Singh of ring for himself and his father, chain and ring for Ramesh and ear-tops for his wife and daughter and one car, at the time the marriage talks took place;

(b) demand and payment of Rs 70,000/- for honeymoon when Priyanka came to her house on 15.04.2007, the next day of marriage; (c) demand of Rs 10,000/- in cash, 10 costly suits and clothes for the entire family at the time of delivery of child by Priyanka. The demand is alleged to have been met;

(d) demand and payment of Rs 15000/- for the operation of the child of Priyanka and Ramesh;

(e) demand of Rs 3,00,000/- for General Staff Nurse training of Priyanka though the date of demand was not stated, Rs 1,00,000/- is alleged to have been paid by borrowing from Sonu, brother-in-law, the younger son of the complainant;

(f) the appellant Ramesh called the complainant on 06.1.2009 at about 4.00 PM and handed over the phone to Priyanka who complained that she was beaten and was being asked to bring Rs 5,00,000/- from her father for purchase of a plot of land. One AC car is also alleged to have been demanded.

4. PW-3 Shakuntala Devi is the mother of the deceased Priyanka, whereas PW-8 Sandeep Kumar and PW-9 Karambir are her brothers. PW-3 has corroborated the deposition of the complainant as regards demand of ring for Ramesh, his father and grandfather and tops and chain for his mother and sister. She has also corroborated his deposition with respect to demand of Rs 70,000/- for honeymoon, demand of Rs 10,000/- and 10 suits at the time of birth of the child, demand of Rs 15,000/- for the treatment of the child and payment of Rs 1,00,000/- for training of Priyanka. She also stated that on 02.11.2009, Priyanka had told her that all the accused persons had demanded a big car for which she was beaten and thereafter she sent her son Sandeep to

Crl. Appeal No540/2013 & connected appeals Page 4 of 24 her matrimonial house, but the accused persons asked for pardon. She, however, did not corroborate the deposition of the complainant with respect to demand of Rs 5,00,000/- on telephone on 06.11.2009 for purchase of plot.

5. PW-8 Sandeep Kumar has corroborated the deposition of the complainant with respect to demand of Rs 10,000/- and 10 costly clothes at the time of birth of the child and has claimed that the demand was made by father-in-law, mother-in-law, brother-in-law and sister-in-law of Priyanka on telephone. He also corroborated the deposition of the complainant with respect to payment of Rs 1,00,000/- for training of Priyanka. According to him, in August, 2009, when there was a quarrel between Priyanka and her husband, they reached her house on receipt of a telephone call from his sister and were told that Ramesh, Raj Rani, Sabih Singh, Manju and Ravinder had given beating to her to fulfil their demand of a big car. He also corroborated the deposition of complainant with respect to payment of Rs 15,000/- for the treatment of the child. He also claimed that on 02.11.2009, Priyanka called him on telephone and complained that her husband, father-in-law, mother-in- law, Jeth (brother-in-law), Nand (sister-in-law) and Nandoi (brother-in-law) were beating her and when he reached there and informed his father, the accused persons apologized. He also stated that on 06.11.2009, Priyanka called them on telephone and informed that her husband, father-in-law, mother-in-law, Jeth (brother-in-law), Nand (sister-in-law) and Nandoi (brother-in-law) had assembled and were planning to beat her.

6. PW-9 Karambir has also broadly corroborated the deposition of the complainant with respect to demand of jewellery at the time of talk of marriage, demand of Rs 70,000/- for honeymoon, demand of Rs.10,000/- along with 10 suits at the time of birth of the child and the demand of Rs 15,000/- for the treatment of the child. He also corroborated the deposition of PW-8 with respect to the beating given to Priyanka on 02.11.2009, in

Crl. Appeal No540/2013 & connected appeals Page 5 of 24 connection with demand of a big car. According to him, Priyanka called his father on 06.11.2009 and informed that the accused persons were beating her.

7. In order to succeed in charge under Section 498-A IPC, the prosecution required to prove that the appellants had subjected deceased Priyanka to cruelty, as defined in the explanation to the Section. It is not every cruelty which is punishable under Section 498-A of IPC. The cruelty, as defined in the explanation to 498-A of IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act. The cruelty, so as to attract penal provisions, contained in Section 498-A of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression „willful‟ in the explanation to Section 498-A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any

Crl. Appeal No540/2013 & connected appeals Page 6 of 24 property or valuable security, it will also constitute cruelty, as defined in the explanation to Section 498-A of IPC. Of course, the expression „cruelty‟ would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in Section 498-A of IPC. If the woman is harassed on account of her failure or the failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of Section 498-A of IPC. The expression „harassment‟ has not been defined in Section 498-A of IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. But, it is not harassment of every nature which is punishable under Section 498-A of IPC. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or it should be actuated by the failure of the woman or her relative to meet such a demand.

Before a person can be convicted under this Section, which deals with what is described as „dowry death‟, the prosecution must necessarily prove the following ingredients:-

i. The death of a woman must have been caused by burn or bodily injury or otherwise than under normal circumstance;

ii. Such death must have occurred within seven years of her marriage; iii. Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband; iv. Such cruelty or harassment must be for or in connection with demand for dowry;

Crl. Appeal No540/2013 & connected appeals Page 7 of 24 v. Such cruelty or harassment is when to have been meted out to the woman soon before her death.

The term „dowry‟ has not been defined in Section 304-B of IPC, but, since this expression has been defined in Section 2 of Dowry Prohibition Act, it is required to be given the same meaning for the purpose of under Section 304-B IPC as held by Hon‟ble Supreme Court in Satvir Singh & Ors. Vs. State of Punjab and Anr. 2001 (4) Crimes 45.

Section 2 of Dowry Prohibition Act defines dowry 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 3[or any time after the marriage] 4[in connection with the marriage of the said parties, but does not include] dower or mahr in the case or persons to whom the Muslim Personal Law (Shariat) applies.”

A careful analysis of the above-referred definition would show that dowry would include that property or valuable security which is actually given or which is agreed to be given, in relation to the marriage of person in question. The property or valuable security may be given or may be agreed to be given before marriage or at the time of marriage or at any time after the marriage, so long as it is connected with the marriage. But, there has to be a link between the property given or agreed to be given and the marriage. If at any time before or at the time of or even during marriage, the parents of a woman or any other person related or connected to her agree to give some

Crl. Appeal No540/2013 & connected appeals Page 8 of 24 cash, valuable security or property to her husband or in-laws after marriage, that also would be covered within the definition of dowry as the agreement or promise in such a case would be attributable to the marriage or proposed marriage and if there is demand for any cash property, valuable security etc. which is promised, but not given, it would constitute demand for dowry. If the husband of the girl or any other person related or connected to him, demands something from the girl or her parents or any other person related to or connected with her, saying that the article being demanded by them was expected to be given or ought to have been given in marriage, that also, to my mind, would constitute demand of dowry because even though such an article may not have been agreed or promised to be given by the girl or her family members, it might have been in the contemplation of the boy and/or his family members, on account of the expectation that such an article would be given at the time of marriage. Therefore, such demand would be considered to be a demand in connection with the marriage though made after the marriage has been solemnized. Even demand of articles such as T.V., fridge, jewellery, clothes, furniture, car etc. which usually are given or expected in marriages in our country, would, considering the objective sought to be achieved by incorporating Section 304-B in Indian Penal Code and enacting Dowry Prohibition Act, 1961 fall within the purview of Section 304-B of IPC. In fact, in Pawan Kr. & Ors. Vs. State of Haryana AIR 1998 SC 958, the Hon‟ble Supreme Court has specifically held demand of T.V., Fridge, etc. though not agreed to be given or promised or even demanded prior to or at the time of marriage, to be a demand for dowry for the purpose of Section 304-B of IPC. If cash or some property, etc. is demanded by the boy or his family members, after marriage, saying that they were expecting such cash, property, etc. to be given in marriage, and the girl, or her parents or any other person related or connected to her promise to fulfil such a demand, that also may fall within the purview of dowry, as the promise though made after marriage,

Crl. Appeal No540/2013 & connected appeals Page 9 of 24 would nevertheless be referrable to the marriage, having been made with a view to preserve the marriage. But, if the demand is made after marriage and it is in respect of a property or valuable security, which was not demanded, was not expected to be given and also was not in contemplation at any time up to solemnization of marriage, demand of such cash, property or valuable security, etc. cannot be said to be in connection with the marriage and, therefore, would not constitute demand of dowry.

In Satvir Singh (supra) while dealing with this issue, the Hon‟ble Supreme Court, inter alia, observed as under:

“Thus, there are three occasions related to dowry.

One is before the marriage, second is at the time of

marriage and the third is “at any time” after the

marriage. The third occasion may appear to be an

unending period. But the crucial words are “in

connection with the marriage of the said parties”.

This means that giving or agreeing to give any

property or valuable security on any of the above

three stages should have been in connection with

the marriage of the parties. There can be many

other instances for payment of money or giving

property as between the spouses. For example,

some customary payments in connection with birth

of a child or other ceremonies are prevalent in

different societies. Such payments are not enveloped within the ambit of “dowry”. Hence the

dowry mentioned in Section 304B should be any

property or valuable security given or agreed to be

given in connection with the marriage.”

Crl. Appeal No540/2013 & connected appeals Page 10 of 24 In Appasaheb and Anr. Vs. State of Maharashtra, AIR 2007 SC 763, the Hon‟ble Supreme Court observed as under:

“In view of the aforesaid definition of the word

“dowry” any property or valuable security should

be given or agreed to be given either directly or

indirectly at or before or any time after the

marriage and in connection with the marriage of the

said parties. Therefore, the giving or taking of

property or valuable security must have some

connection with the marriage of the parties and a

correlation between the giving or taking of property

or valuable security with the marriage of the parties is essential. Being a penal provision it has to be

strictly construed. Dowry is a fairly well known

social custom or practice in India.”

Demand for something which has not been agreed to be given at any time before or at the time of marriage and which is not in the contemplation of the boy and/or his family members and which is neither expected by them to be given in the marriage, nor which is an article of the nature usually given in a marriage, cannot be said to be connected with the marriage. The use of the expression „in connection with the marriage of the said parties‟ leaves no room for the interpretation that any and everything demanded after marriage, without anything more, would constitute demand of dowry. Such an interpretation would render the expression „in connection with the marriage of the said parties‟ totally redundant and, therefore, cannot be said to be have been intended by the Legislature. It is settled proposition of law that penal statutes need to be strictly construed and even if two views in the matter are

Crl. Appeal No540/2013 & connected appeals Page 11 of 24 reasonably possible, the interpretation, which would favour the accused, needs to be given by the Courts. No doubt, Section 304-B of IPC is a social legislation aimed at preventing dowry deaths which is a social evil that needs to be eradicated at any cost. It is also difficult to deny that in our society there are demands other than those covered under the definition of dowry are made after the marriage and such demands do result in subjecting the girl to cruelty and/or harassment if she or her parents or relative are unable to fulfill the demand. Such a demand, if followed by cruelty or harassment would constitute offence punishable under Section 498-A of IPC. But, it is difficult to accept that the demands which are not at all referrable to the marriage, would also constitute dowry demand punishable under Section 304-B of IPC in case the woman is subjected to cruelty or harassment for or in connection with such a demand. The remedy, to my mind, lies in the Legislature stepping in and making even such demands subject matter of offence punishable under Section 304-B of IPC.

8. As regards demand of ring for himself and his father, chain and ring for Ramesh and ear tops for his wife and daughter and one car by the appellant Shri Sahib Singh, father-in-law of Priyanka, at the time talks for marriage took place, I find that no such demand was alleged by Shri Sukhbir Singh, father of the deceased in his statement to the SDM on 7.11.2009. In fact, there is no allegation at all of any demand of jewellery, car or any other article, before the marriage of Priyanka with Ramesh. This allegation was made for the first time in the statement made to the Investigating Officer under Section 161 Cr.P.C. on 26.11.2009. Therefore, this part of deposition of the family members of Priyanka does not inspire confidence and appears to be an afterthought. In any case, there is no allegation of any of the appellants harassing the deceased or subjecting her to cruelty in connection with the aforesaid demand alleged to have been made at the time talks for marriage took place.

Crl. Appeal No540/2013 & connected appeals Page 12 of 24

9. As regards demand of Rs.70,000/- for honeymoon at the time Priyanka came to the house of her parents on 15.7.2007, again there is no such allegation in the FIR registered on the statement of Shri Sukhbir Singh. Moreover there is no allegation of any harassment of Priyanka or any cruelty to her in connection with the aforesaid demand of Rs.70,000/- which is alleged to have been made, by her parents.

10. As regards demand of Rs.10,000/- in cash, ten (10) costly suits and clothes for the entire family at the time of delivery of child of Priyanka, again there is no allegation in this regard in the statement made by Shri Sukhbir Singh to the SDM and this allegation cropped up for the first time in the statement of Shri Sukhbir Singh made under Section 161 of Cr.P.C. on 27.11.2009. When the parents of Priyanka came in the witness box they did not allege any harassment of Priyanka in connection with the aforesaid demand.

11. As regards demand of Rs.15,000/- for treatment of the child of Priyanka and Ramesh, I find that there is no allegation in this regard in the statement made by Shri Sukhbir Singh to the SDM. This demand was alleged

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