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Surender Singh And Others vs State Govt. Of Nct Of Delhi on 6 March, 2017

IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision : March 06th, 2017
+ Crl. A. No. 458/2001
SURENDER SINGH AND OTHERS ….. Appellants
Through: Mr. R.S. Mishra, Advocate

versus

STATE GOVT. OF NCT OF DELHI ….. Respondent
Through: Mr. Panna Lal Sharma, Additional
Public Prosecutor for the State

CORAM:
HON’BLE MR. JUSTICE P.S.TEJI

JUDGMENT

P.S.TEJI, J

1. The present appeal has been filed being aggrieved by the

judgment of conviction dated 29.06.2001 convicting the appellants,

namely, Surender Singh, Nafe Singh and Smt.Shama Kaur under

Sections 498-A/304-B/34 IPC and order on sentence dated

03.07.2001 vide which the appellants were sentenced to undergo

seven years rigorous imprisonment with fine of Rs.200/- each for

the offence under Section 304-B IPC and also to undergo three

years rigorous imprisonment for three years with fine of Rs.200/-

each for the offence under Section 498A IPC. In default of

Crl.A. No.458/2001 Page 1 of 18
payment of fine, the appellants have been ordered to further

undergo rigorous imprisonment for three months each on each

count.

2. The factual matrix emerging from the record is that on

09.12.1998, an information regarding commission of a suicide by a

woman, namely Basanti, by hanging herself, was received in the

police station and the same was assigned to SI Prabhu Dayal who

along with other police officials went to the spot. At the spot, it

was revealed that the dead body of deceased was being prepared

for cremation. Smt.Sushila Devi and Chand, mother and brother of

the deceased respectively, also reached the spot. It was revealed

that the marriage of deceased with accused Surender Singh was

solemnized about one and a half year ago. The Sub Divisional

Magistrate of the area was informed who directed the police to

produce the relatives of the deceased before him on 10.12.1998.

The dead body of the deceased was sent to mortuary for conducting

post mortem.

3. Statement Ex.PW1/A of Smt.Sushila, mother of the deceased

was recorded who stated that Basanti was sent to her parental

house about one and a half month prior to the incident and on being

pacified, her husband took her back. She further stated that for the

marriage, she had given Television, clothes, chairs, table, one tola

Crl.A. No.458/2001 Page 2 of 18
of gold and silver jewellery. It was alleged that the in-laws of the

deceased were demanding a scooter in dowry and used to beat the

deceased. When deceased was sent to her parental home about one

and a half month prior to the incident, there had been a demand of

dowry and Smt.Sushila had arranged Rs.5,000/- to be paid by Suraj

Bhan, younger brother of her husband. She further stated that she

was informed about the death of her daughter by one Subey Singh

and Hukum Singh. When she reached the spot, she found her

daughter dead and there were some marks on her neck. She further

stated that her daughter was being harassed by all the three accused

persons.

4. On the basis of directions issued by the SDM, the FIR of the

instant case was registered under Sections 498A/304B/120B IPC

and Sections 3/4 of the Dowry Prohibition Act. On completion of

investigation, charge sheet was filed in the Court.

5. Charge under Sections 498A/304B/34 IPC was framed

against all the appellants to which they pleaded not guilty. The

prosecution had examined as many as nine witnesses, namely PW1

Smt.Sushila Devi, PW2 Suraj Bhan, PW3 Chand, PW4 Head

Constable Krishna, PW5 Jagbir Singh, PW6 Daryal Singh, PW7

Dr.Komal Singh, PW8 Constable Devi Dayal and PW9 Sub

Inspector Prabhu Dayal.

Crl.A. No.458/2001 Page 3 of 18

6. After completion of prosecution evidence, the statements of

the accused persons (appellants-herein) were recorded under

Section 313 of the Cr.P.C. The appellants did not lead any defence

evidence.

7. The appellants were held guilty by the learned Additional

Sessions Judge vide judgment of conviction dated 29.06.2001 and

passed the order on sentence on 03.07.2001.

8. Argument advanced by the learned counsel for the appellants

is that the Investigating Officer had not examined any witness from

the neighbourhood of the house of the appellants to know about the

cruelty meted out on the deceased. It is further submitted that the

deceased had not written any letter or complaint to her parents or to

any authority with regard to cruelty meted out to her on account of

demand of dowry. Even the brother of the deceased, namely,

Chand (PW3) had not made any such complaint to any authority.

There are contradictions in the testimony of the witnesses

inasmuch as the mother of the deceased had deposed that

Rs.5,000/- were demanded but the brother of the deceased had not

said so in his statement. There are contradictions with regard to

payment of money inasmuch as PW2 had stated that he had given

money to his bhabhi to be given to deceased but in his cross-

examination, PW2 had stated that he had given money directly to

Crl.A. No.458/2001 Page 4 of 18
the appellant no.1-Surender Singh. It is further submitted that

PW1 had deposed that she was told by the deceased that her

mother-in-law gave her a fist blow due to which her teeth had

broken, but there is no medical evidence supporting the said

statement. It is further submitted that there was no demand of

dowry either from the deceased or from her family and that there is

no evidence that the deceased was never harassed or meted out

with cruelty for or in connection with demand of dowry. It is

further submitted that there is delay in lodging the FIR and the said

delay has not been explained by the prosecution as the incident had

taken place on 09.12.1998 at 01.00 p.m., but the FIR was lodged

on 10.12.1998 at 11.50 p.m.

9. Per contra, argument advanced by learned Additional Public

Prosecutor for the State is that the appellants have been rightly held

guilty under Sections 498A/304B IPC by the trial court. The

relatives of the deceased as well as other public witnesses have

duly supported the case of prosecution that the deceased was

subjected to cruelty and harassment on account of demand of

dowry by the appellants. There is sufficient evidence against the

appellants to hold them guilty for the offences of harassment on

account of demand of dowry and of dowry death.

10. Arguments advanced by the counsel for the appellants as

Crl.A. No.458/2001 Page 5 of 18
well as learned APP for the State were heard.

11. To appreciate the arguments advanced from both the sides, I

have gone through their submissions and material available on

record meticulously.

12. In her testimony, PW1 Sushila Devi, mother of the deceased

had deposed that her daughter Basanti was married with accused

Surender since about one and a half year ago prior to the incident.

After three months of the marriage, accused Surender (husband),

Nafe (father-in-law) and Sama Kaur (mother-in-law) started

beating Basanti on account of insufficient dowry. Basanti

informed PW1 about the same when she came to her house after

she was given beatings by the accused persons. Basanti had told

her that all the accused persons used to give her beatings and her

mother-in-law had given a fist blow on her face due to which her

teeth had broken. Accused persons did not provide any food to the

deceased. PW1 further stated that the deceased had informed her

that the accused Surender used to ask for Rs.5,000/- and a scooter.

PW1 had borrowed Rs.5,000/- from her Devar and had given it to

Basanti about 15 days prior to her death. She further deposed that

Sube and Hukum Singh informed her that Basanti was admitted in

hospital and when she and her son Chand came to the house of the

accused persons, she saw the dead body of Basanti which was

Crl.A. No.458/2001 Page 6 of 18
going to be taken for cremation. PW1 lifted the cloth over the dead

body and found ligature mark on her neck. Chand subsequently

informed the police. Statement of PW1 was recorded vide

Ex.PW1/A.

In her cross-examination, PW1 had stated that after the

marriage, Basanti came to her house 3-4 times. PW1 had informed

her husband and her brother-in-law (devar) whatever was told to

her by Basanti. She and her husband had made efforts to tell the

accused persons to keep her daughter Basanti happy. She denied

that Basanti had committed suicide as she was mentally deranged

or that accused persons had not subjected Basanti to cruelty on

account of demand of dowry.

13. PW2 Suraj Bhan, uncle of the deceased has corroborated the

testimony of PW1. PW2 had deposed that his niece Basanti was

married with accused Surender. About one month prior to the

death of Basanti, his Bhabhi Sushila asked him for Rs.5,000/- and

he had given the same to her. Sushila told him that she needed

money to give it to the husband of Basanti as accused Surender

used to harass Basanti on account of demand of dowry. Sushila

also told him that parents-in-law of Basanti used to harass her on

account of inadequate dowry.

During cross-examination, PW2 had stated that about one

Crl.A. No.458/2001 Page 7 of 18
and a half month prior to her death, Basanti came to his house and

told him that accused persons used to give beatings to her and used

to harass her on account of insufficient dowry. He further stated

that he had given Rs.5,000/- to accused Surender who came to his

house after many days of Basanti coming to his house. After he

had given money to Surender, he had received the news of death of

Basanti after about one and a half month. He further stated that he

had made a complaint to the respectable of the village of the

accused persons, regarding harassment of Basanti by the accused

persons but he had not made the complaint in writing. He denied

that accused persons had never demanded any money from Basanti

or from her family or that they had not harassed or beaten Basanti

on account of insufficient dowry or that he had not given

Rs.5,000/- to accused Surender.

14. Testimony of PW1 and PW2 has further been corroborated

by PW3 Chand, brother of the deceased. PW3 had deposed that

after three months of the marriage, his sister Basanti came to their

house and told them that she was harassed on account of

inadequate dowry. She also complained that she was beaten by all

the accused persons and was not given any food. About one and a

half month prior to her death, she came to their house and repeated

the complaint of torture and also mentioned about the demand of

Crl.A. No.458/2001 Page 8 of 18
scooter made by accused persons. On 09.12.1998, Sube Singh and

Hukum Singh came to their house and told them that Basanti was

ill and had been admitted to a hospital. PW3 along with his

mother, Sube Singh and Hukum Singh went to the house of

accused persons and found that dead body of Basanti was being

readied for cremation. On being asked by his mother, he informed

the police.

During cross-examination, PW3 had stated that he had gone

on 2-3 occasions to the house of accused persons and each time

Basanti had told him that the accused persons used to harass and

beat her on account of insufficient dowry. On return to his house,

he had told his mother and uncle as to what Basanti had told him

on each occasion. He denied that accused persons had never made

any demand from Basanti nor had harassed her or beaten her.

15. PW1 is the mother of the deceased and PW3 is the brother of

the deceased. They have specifically stated that deceased was

harassed and meted with cruelty by the appellants on account of

demand of dowry. In their testimony, they have given the specific

incidents which duly prove that the deceased was harassed by the

appellants for or on account of demand of dowry. They have stated

specifically that after three months of marriage when deceased

came to their house, she informed them that she was being

Crl.A. No.458/2001 Page 9 of 18
harassed and beaten by the appellants for bringing insufficient

dowry. The deceased also told them that the appellants had been

demanding a scooter and Rs.5,000/- in cash. PW1 has specifically

stated that the deceased informed her that she was given fist blow

by her mother-in-law on her face as a consequence of which, her

teeth had broken. She had also specifically stated that the husband

of her deceased daughter demanded Rs.5,000/- from the deceased

and a scooter and Rs.5,000/- cash, which was given to the deceased

after borrowing from her brother-in-law (PW2).

16. PW2 Suraj Bhan has corroborated that deceased told him

that the appellants were demanding Rs.5,000/- cash and a scooter

from the deceased. He also corroborated that about one month

prior to the death of deceased, PW3 Smt.Sushila had asked for

Rs.5,000/- which he had given to PW3 as the same was required to

be given to the husband of the deceased, as the deceased was being

harassed on account of demand of money. He had also stated that

the parents-in-law of the deceased also used to harass her on

account of inadequate dowry.

17. From the testimony of mother (PW1), brother (PW3) and

uncle (PW2) of the deceased, it has duly been established beyond

reasonable doubt that the appellants had harassed and meted the

deceased with cruelty on account of demand of dowry.

Crl.A. No.458/2001 Page 10 of 18

18. Thus, the conviction of appellants under Section 498A/34

IPC needs to be upheld.

19. The appellants, apart from treating the deceased with cruelty

on account of demand of dowry, have also been convicted for

commission of dowry death.

20. In the case of Devi Lal vs. State of Rajasthan AIR 2008 SC

332, Hon’ble Apex Court has observed that the ingredients of

provisions of section 304 B IPC are (1) that the death of the woman

was caused by any burns or bodily injury or in some circumstances

which were not normal; (2) such death occurs within 7 years from

the date of her marriage ; (3) that the victim was subjected to

cruelty or harassment by her husband or any relative of her

husband; (4) such cruelty or harassment should be for or in

connection with the demand of dowry ; and (5) it is established that

such cruelty and harassment was made soon before her death. It

was further observed that before an accused is found guilty for

commission of an offence, the Court must arrive at a finding that

the ingredients thereof have been established. It was held that

statement of a witness for the said purpose must be read in its

entirety. It is not necessary for a witness to make a statement in

consonance with the wording of the section of a statute. What is

needed is to find out whether the evidences brought on record

Crl.A. No.458/2001 Page 11 of 18
satisfy the ingredients thereof.

21. Necessary ingredients of dowry death as provided under

Section 304B of IPC are :

(i)Deceased was the subject matter of cruelty on account of

dowry and culminates into guilt of accused under Section

498A IPC;

(ii)The death should have taken place due to bodily injuries

other than in normal circumstances; and

(iii)Such death was the subject matter of cruelty ‘soon before

death’.

22. To constitute an offence under Section 304B IPC of dowry

death, the presumption under Section 113B of the Evidence Act

cannot be raised against an accused until independently the offence

under Section 498A IPC is proved by leading evidence to the

specific allegation with regard to time and date of such demand and

cruelty and furthermore establishing the proximate live link

between the effect of cruelty based on dowry demand and the death

of the victim.

23. The factum of marriage of the deceased with the appellant

no.1- Surender Singh is not under dispute. It is also not in dispute

that the marriage of the deceased was solemnized with the

appellant no.1-Surender Singh on 21.04.1997 and she died on

Crl.A. No.458/2001 Page 12 of 18
09.12.1998 i.e. after about one and a half year of marriage i.e.

within seven years of her marriage with the appellant no.1.

24. In the present case, as discussed in the former paragraphs of

this judgment, there is sufficient evidence to establish that the

deceased was subjected to cruelty on account of dowry and that the

appellants are guilty for the offence punishable under Section

498A/34 IPC.

25. Prosecution witness PW7 Dr. Komal Singh had deposed that

he had conducted autopsy on the dead body of the deceased on

10.12.1998 and placed the post mortem report as Ex.PW7/A. As

per the opinion of the doctor on the post mortem report Ex.PW7/A,

the cause of death of the deceased was due to asphyxia on account

of constricting force over the neck. On external examination of the

dead body, ligature marks were found on the neck of the deceased.

26. From the opinion of the doctor (PW7) and the post mortem

report Ex.PW7/A of the deceased, it has duly been established that

the death of the deceased was not under normal circumstances as it

was not a natural death, which duly proves another essential

ingredient of Section 304B IPC.

27. Now the ingredient to be proved is whether the deceased was

subjected to harassment or cruelty on account of demand of dowry

soon before her death or not. To prove this aspect, the testimony of

Crl.A. No.458/2001 Page 13 of 18
mother and brother of the deceased are vital. Smt.Sushila Devi

(PW1), mother of the deceased had deposed during her testimony

before the Court that accused Surender used to ask for Rs.5,000/-

and a scooter. She had borrowed Rs.5,000/- from her Devar and

had given it to her deceased daughter about 15 days prior to her

death. She told her daughter that it was beyond their means to give

scooter in dowry.

28. From the testimony of Sushila Devi (PW1), mother of the

deceased, there was demand of dowry in the form of a scooter and

cash of Rs.5,000/- from the deceased about 15 days prior to the

death of the deceased. This statement of the witness (PW1) duly

covers the case of prosecution to bring it under the ambit of cruelty

or harassment meted out to the deceased on account of demand of

dowry, soon before her death. It is apparent from the cross-

examination of PW1 that the defence had not disputed the said fact

of harassment meted out to the deceased on account of demand of

dowry soon before her death. No question or suggestion was put

forth to the witness (PW1) to this effect which makes her testimony

on this point unchallenged and uncontroverted.

29. Similarly, Suraj Bhan (PW2), uncle of the deceased has also

corroborated the above fact during his deposition in the Court.

PW2 had deposed that deceased Basanti was his niece. About one

Crl.A. No.458/2001 Page 14 of 18
month prior to death of Basanti, his Bhabhi Sushila had asked him

for Rs.5,000/- and he had given the same to her. Sushila had told

him that she needed the money to give to the husband of Basanti

because accused Surender used to harass Basanti on account of

demand of money. He further stated that Sushila told him that

parents-in-law of Basanti also used to harass her on account of

inadequate dowry.

30. The defence has failed to put any dent to his testimony to the

effect that the deceased was harassed on account of demand of

dowry by the appellants soon before her death. There is no cross-

examination of this witness (PW2) to impeach his testimony. Thus,

the testimony of PW2 is corroborative in nature to the testimony of

PW1 and remained uncontroverted too.

31. From the unimpeached testimony of PW1 and PW2, it has

duly been established that the deceased was subjected to cruelty

and harassment for or on account of demand of dowry soon before

death. Thus, the prosecution has successfully established another

essential ingredient of Section 304-B IPC.

32. The contention of the appellants that the testimony of

prosecution witnesses cannot be relied upon as the same are full of

material contradictions holds no merit. From a careful reading of

the testimony of prosecution witnesses, this Court finds that there

Crl.A. No.458/2001 Page 15 of 18
are minor contradictions in their testimony which is bound to occur

due to passage of time. It is also not expected from a person to

repeat the same facts as told by them to the police at the time of

investigation. There are minor contradictions in their testimony

but the same do not go to the root of the matter nor affect their

credibility and same cannot be said to be material to discard the

case of prosecution.

33. Another contention of the appellants is that there is delay in

lodging the FIR. It has been contended that the incident had taken

place at 1.00 p.m. on 09.12.1998 but the FIR was lodged on

10.12.1998 at 11.50 p.m.

34. The explanation offered by the prosecution in lodging the

FIR on 10.12.1998 is that the SDM of the area was informed about

the incident on the same day of incident i.e. 09.12.1998 who

reached the spot. It has further been submitted that the SDM

directed the police to produce the mother and brother of the

deceased before him on 10.12.1998. On 10.12.1998, the

statements Ex.PW1/A and Ex.PW3/A of Smt.Sushila (PW1) and

Chand (PW3) respectively were recorded by the SDM. After

recording the statements of PW1 and PW3, the SDM ordered

registration of the case FIR in the present case and then the FIR of

the instant case was registered. Thus, the prosecution has

Crl.A. No.458/2001 Page 16 of 18
adequately explained the delay which was caused in lodging the

FIR and the same cannot in anyway said to be affecting the case of

the prosecution.

35. From the totality of the discussion made above, this Court is

of the considered opinion that the prosecution has successfully

established its case against the appellants beyond reasonable doubt,

that they had committed the dowry death of the deceased. All the

ingredients of dowry death as provided in Section 304-B of IPC

have duly been established. Thus, the conviction of appellants

under Section 304-B/34 IPC deserves to be upheld.

36. On the quantum of sentence awarded to the appellants, this

Court finds that the minimum sentence provided under Section

304-B IPC is seven years and the trial court has already taken a

lenient view while awarding sentence of seven years imprisonment

to the appellants for the offence under Section 304-B IPC and three

years for the offence under Section 498-A IPC.

37. In view of the discussion made above, this Court does not

find any ground to interfere with in the judgment of conviction and

order on sentence passed by the trial court. The same are

accordingly upheld.

38. Appellants are on bail. Their personal bonds and surety

bonds stand cancelled. They are directed to surrender before the

Crl.A. No.458/2001 Page 17 of 18
trial court concerned within a period of 15 days to serve the

remainder of sentence.

39. The appeal is disposed of accordingly.

(P.S.TEJI)
JUDGE
MARCH 06, 2017
dd

Crl.A. No.458/2001 Page 18 of 18

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