Crl. Appeal No.713/2004 Page 1 of 47 IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL. Appeal No.713/2004 Judgment delivered on 3rd, September, 2009 # Brijesh Singh & Another ..... Appellant Through : Mr.S.K.Sharma and Mr.Dhruv Kumra, Advocates Versus State (NCT of Delhi) .... Respondent Through : Mr.O.P. Saxena, APP for State CORAM: HON'BLE MR. JUSTICE G.S.SISTANI 1. Whether reporters of local papers may be allowed to see the Judgment ? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the Judgment should be reported in the Digest? Yes G.S. SISTANI, J. 1. The present appeal has been filed under Section 473 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, ―Cr.P.C.‖) against the judgment dated 15th September, 2004 and order on sentence dated 17th September, 2004 by the appellant No.1, who is the husband of the deceased, and appellant No.2, who is the mother-in-law of the deceased. By virtue of the said judgment, appellant no.1 and 2 were convicted and sentenced to undergo rigorous imprisonment for three years for the offence under Section 498A IPC together with fine of Rs.5,000/- each and in default of the payment of fine, rigorous imprisonment for another six months. Appellant no.1 was also convicted and sentenced to undergo fourteen (14) years rigorous imprisonment Crl. Appeal No.713/2004 Page 2 of 47 and appellant No.2 was convicted to eight (8) years of rigorous imprisonment for the offence under Section 304 B IPC. 2. The facts of the case, as noticed by the learned Additional Sessions Judge, are that Brijesh Singh, appellant No.1, married Shubha on 30th October, 1990. Customary articles forming dowry were given at the time of marriage. Marriage lasted for about 5 years during which period the couple was blessed with a son. The marriage came to an end on 28th October, 1995 when Shubha committed suicide by hanging herself. The case set up by the prosecution is that the alleged demands of dowry made upon the deceased by her husband and her in-laws as well as the harassment and torture inflicted upon her for non-fulfilment of the demands had driven Shubha to end her life by hanging herself by a ceiling fan in her room. FIR was registered under Section 498A/304B/406 IPC and under Section 6 of the Dowry Prohibition Act. Charge under Section 498A/34 IPC and Section 304B/34 was framed against the appellants herein. 3. During trial, thirteen (13) witnesses were examined by the prosecution, eight (8) witnesses were examined by the defence. Appellant No.1 had also examined himself as a witness. According to the appellants Shubha committed suicide as she was tired of her weak state of health and constant illnesses. 4. Counsel for the appellants submits that the judgment passed by the learned trial court is illegal and contrary to the material on record as well as the settled principles of law. It is contended that the learned trial court gravely erred in not appreciating that there is no cogent and believable evidence available on record to Crl. Appeal No.713/2004 Page 3 of 47 hold the appellants guilty of the offence under Section 498A or 304 B IPC. It is next contended that the learned trial court failed to take into consideration the fact that basic requirements of Section 304 B IPC were not fulfilled herein. The learned trial court, it is contended, completely lost track of the fact that in order to convict a person under Section 304 B IPC, it was mandatory for the prosecution to prove that soon before death, the deceased was subjected to cruelty or harassment by the appellants for or in connection with any demand of dowry. Counsel contends that in the present case even in the charge sheet there is no allegation regarding any incident about the harassment of deceased soon before she committed suicide. Counsel for the appellants submits that PW-2, Om Prakash, father of the deceased did not utter a single word nor made any allegation especially against appellant No.2 regarding harassment for demand of dowry. It is contended that none of the witnesses i.e PW-2, Om Prakash, father of the deceased; PW- 8, Sumitra, mother; and PW-6, Saraswati, sister of the deceased, in their statements before the police or before the court have alleged any incident of harassment of the deceased by the appellants for and in connection with demand of dowry soon before the occurrence. Learned counsel for the appellants next submits that there are material contradictions between the statements made by the witnesses i.e father, mother and sister of the deceased. Counsel for the appellants submits that the trial court has failed to consider that at the time of occurrence, none of the appellants were present in the house. It is submitted Crl. Appeal No.713/2004 Page 4 of 47 that the complainants did not lodge any complaint for more than 72 hours after the incident. This delay has been unexplained in view of the fact that the incident took place on 28th October, 1995 and the FIR was lodged on 31st October, 1995 when the statement was made to the SDM. 5. Mr. Sharma, learned counsel for the appellant also submits that evidence of the prosecution witnesses is not trustworthy and no credence can be given to the evidence which is inconsistent and unreliable. It is also contended that the learned trial court gravely erred in disbelieving the version of the defence witnesses. Even otherwise, it is contended that the trial court erred in awarding the sentence of 14 years to appellant No.1 and 8 years to appellant No.2 under Section 304 B IPC and that the sentence awarded is disproportionate to the allegations made in the case. It is contended that even as per the statement of PW- 2, father of the deceased, there was no demand of dowry at the time of marriage, which would show that the conduct of the appellants was not greedy. Thus, the learned trial court has failed to apply its judicious mind which has resulted in grave miscarriage of justice. 6. Per contra, learned counsel for the State submits that the prosecution has been able to prove its case beyond any shadow of doubt. He submits that on a careful reading of the testimony of material witnesses, it has clearly been established that on account of the persistent demands made by the appellants as well as her being subjected to cruelty in relation to dowry, Shubha ended her life by hanging and thus, there is no infirmity Crl. Appeal No.713/2004 Page 5 of 47 in the judgement and order of conviction. Counsel for State submits that the deceased had left her matrimonial home on an earlier occasion as well and stayed with her parents for approximately three years uptil April, 1995, and the same would show that she was being harassed throughout her matrimonial life. 7. In response to the submissions of counsel for the State, counsel for appellants submits that the deceased had left her matrimonial home on account of the fact that the appellant No.1, her husband, was without a job and his financial condition was not good and that not because she was harassed for dowry. It is submitted that during this period of separation no report was lodged with the police, which would go to show that the deceased had left her matrimonial home not on account of cruelty, harassment or demand of dowry but on account of the fact that her husband was without a job and also that she wanted economic independence. Counsel for the appellant further contends that admittedly the appellant No.1/husband had met the deceased in April, 1995 at the school where she was teaching. There was no discussion with respect to dowry and no pre-condition was imposed on the appellant No.1, at the time of her return. The father of the deceased has categorically deposed that no demand for dowry was made at the time of marriage. Counsel for the appellants also submits that the appellants have been falsely implicated in the case. Counsel for the appellant has also contended that there is no evidence brought on record to show that cruelty or harassment was meted out to the Crl. Appeal No.713/2004 Page 6 of 47 deceased for bringing insufficient dowry and in absence thereof, the ingredients of Section 304 B of the IPC cannot be said to have been proved. It is also contended that one of the essential ingredients for convicting a person under Section 304 B IPC is that the woman ―must have been‖ ―soon before her death subjected to cruelty or harassment for or in connection with the demand of dowry‖. 8. Counsel for the appellants also submits that the demand if at all of Rs.1.00 lac was on account of financial help for business or domestic help and not as a demand of dowry. 9. Counsel for the appellants has relied upon the decision of APPASAHEB AND ANOTHER VS. STATE OF MAHARASHTRA reported at 2007 (9) SCC 721 in support of his arguments that the demand made from parents of the deceased to meet the domestic expenses cannot be said to be demand for dowry. He has also relied upon the decision in BISWAJIT HALDER @ BABU HALDER AND OTHERS VS. STATE OF W.B. reported at 2008 (1) SCC 202 as well as on TARSEM SINGH VS. STATE OF PUNJAB reported at 2008 (16) SCALE 148 to canvass his arguments that before convicting a person under Section 304 B IPC, all the basic mandatory ingredients have to be satisfied. It is contended that in this case, the deceased was not subjected to cruelty and harassment much less in connection with demand for dowry or that any demand in connection with dowry was made soon before her death. Counsel has also contended that assuming without admitting that any demand for dowry was Crl. Appeal No.713/2004 Page 7 of 47 made, there was no live link between the demand of dowry and the death of Shubha. 10. Before considering the rival contentions of the parties, it would be useful to scrutinise the evidence of some of the material witnesses in this case. 11. PW-1, Harish Dhingra, is the neighbour of appellant No.1, Brijesh. He has deposed that on 28th October, 1995 at about 5.00 p.m., he was present in his office when father of the appellant No.1 along with his another son Harish came from outside and started climbing up the stair case. After some time father of appellant no.1, Brijesh, called his son Harish up-stairs. Harish went up-stairs and called this witness (PW-1) also. On reaching the first floor, he found that the wife of Brijesh (appellant No.1) was hanging from a ceiling fan with the help of a chunni. PW-1 further deposed that the father and the brother of appellant No.1 tried to lift Shubha and also tried to open the knot while saying that there was still some life in her and he should also help them in saving her. However, since the knot could not be opened, the same was cut with a kitchen knife and thereafter Shubha was made to lie down on a takht. In the cross-examination, PW-1 denied the suggestion that quarrel used to take place in the family of the appellants. 12. PW-2, Om Prakash, is the father of the deceased. In his evidence he stated that his daughter was married to appellant No.1 on 30th October, 1990. No demand for dowry was made at the time of marriage. However, dowry articles within his means were given including colour TV, bed, fridge, jewellery and other articles. Crl. Appeal No.713/2004 Page 8 of 47 After 3-4 months of the marriage, the appellants started demanding dowry. PW-2 has further deposed that appellants demanded a sum of Rs.One lakh from his daughter and that he paid a sum of Rs.20,000/- to appellant no.1 Brijesh in the year 1991. However, despite paying Rs.20,000/-, appellants continued to harass his daughter. In the year 1993, Shubha left the appellants and came to his house and remained there for about two years. During this period, his daughter had taken up a job in a school at Gurgaon and used to get a salary of Rs.1200/- per month. The child born out of the wedlock was also staying with them. As per PW-2, it is during this period that his daughter had informed him that the appellants used to harass her. They did not provide her with proper food and used to throw sarees on her face and hence his daughter was not willing to return to her matrimonial home. In the year 1995, appellant No.1 met Shubha in her school and sought to take her back to the matrimonial home. Shubha then asked him to talk to her father. The Principal of her school also advised the same to appellant No.1. The father of the deceased further deposed that two or three days later, appellant No.1 came to meet him and assured him that he would not maltreat his daughter in future and thereafter he did advise his daughter to go back to her matrimonial home and stay with the appellants. His daughter was then kept properly for a month and a half and soon appellant No.1 demanded a sum of Rs.1,50,000/- from him in the month of Febraury/March, 1995. It was then clarified that demand was made in May/June, 1995. PW-2 informed appellant No.1 that he Crl. Appeal No.713/2004 Page 9 of 47 cannot arrange the entire amount but he would arrange upto Rs.50,000/-. On 21st October, 1995, appellant No.1 again came to his house in order to take the sum of Rs.1,50,000/- from him. PW-2 has also deposed that on 22nd October, 1995, his daughter came to the house in connection with money and also told him that she was not willing to go back. He had also told his daughter that he would send Rs.50,000/- within a day or so and that she should return to her matrimonial home. Shubha returned to her matrimonial home on 26th October, 1995. On 28th October, 1995, his daughter was killed as she was not able to get Rs.50,000/-. This witness (PW-2) has deposed that on 28th October 1995 at about 4.00 pm, appellant No.1 (Brijesh) and appellant No.2 (Pushpa Devi) along with Rajinder and Sumitra had come to their house with his grand son. While appellant No.1 stayed in their house, appellant Pushpa Devi and other persons went to meet some relation in Gurgaon. Brijesh had told him that his daughter was not well. He had asked Brijesh as to why he had left his daughter at the matrimonial home alone. The appellant had then gone to make a STD call. After some time Brijesh informed that Shubha had met with an accident. In the meanwhile, a telephone call was received at the house of his friend Jai Singh Verma that Shubha had committed suicide by hanging. Mr.Verma had informed him of this fact. On reaching Delhi he saw the dead body of his daughter in the mortuary. His statement was recorded by the SDM. 13. During cross-examination, PW-2 has stated that he did not meet any police official or SDM on 28th October, 1995 but met the SDM Crl. Appeal No.713/2004 Page 10 of 47 on 29th October, 1995 as he was not in a fit state of mind. He did not give any statement before the SDM on 29th October, 1995 nor did he lodge any complaint before the SDM or any police official regarding harassment of his daughter by the appellants for dowry. His statement was recorded by the SDM in his court on 30th October, 1995 when he gave all the details in his statement. In the cross-examination PW-2 further stated that he had not stated before the SDM that money was demanded directly from him prior to 21st October, 1995 nor had he specifically stated in his statement that his daughter disclosed to him that appellants had demanded money. He had, however, stated before the SDM that appellants had been demanding money from his daughter but he could not tell the date, month and place when a sum of Rs.20,000/- was given to appellant No.1, Brijesh. He also stated that he had not given any specific incident of harassment of his daughter nor had he given the manner in which his daughter was harassed or treated with cruelty and by which appellant. He also did not tell the SDM that the sum of Rs.20,000/- was demanded but immediately thereafter he improved his version and stated that Rs.50,000/- was demanded. In his cross-examination he, however, stated that he had told the SDM that money was demanded but he did not tell that dahej was demanded. In his statement Ex.PW2/A at point ‗Y‘ SDM had wrongly mentioned dahej which was scored out by him. He denied the suggestion that Brijesh did not demand Rs.1,50,000/- on 21st October, 1995. He also denied the suggestion that his daughter was never harassed or treated with Crl. Appeal No.713/2004 Page 11 of 47 cruelty by appellants, Brijesh and Pushpa. He denied the suggestion that between 28th October, 1995 to 30th October, 1995 he had stayed in the house of the appellants and asked for custody of the child and on refusal he has falsely implicated the appellant by making a statement against him. He also denied the suggestion that he forcibly took the child on 4th November, 1995. PW-2 stated that he had deposed before the Police/SDM that during the period of two years when his daughter stayed with him, she had disclosed that appellants used to harass her and did not provide her with proper food and used to throw sarees on her face. He was confronted with Ex.PW2/A where it had not been so stated. 14. PW-3, Sh.Jai Singh Verma, is the neighbour of the father of the deceased, who has stated that Shubha had remained with her father for about three years after marriage on account of matrimonial acrimony between her and her husband. However, he was not aware about the reasons of the matrimonial discord. On 28th October, 1995, he had received a call at about 4.00 pm from Pahadi Dhiraj, Delhi that Shubha had committed suicide by hanging herself. He had then informed Om Prakash about this incident. This witness was cross-examined by the Public Prosecutor. He denied the suggestion that Shubha ever disclosed to him that her husband and her in laws used to harass her and beat her on account of not providing dowry. He also denied the suggestion that Shubha had told him that her husband wanted to start a business and, therefore, told her that she should bring Rs. One lakh from her parents. He was confronted with the portion of Crl. Appeal No.713/2004 Page 12 of 47 the statement where he said so before the police. He, however, deposed that Rs.20,000/- was paid to appellant No.1 in his presence in the year 1991 but he could not say whether the same was given to meet the demand of dowry. He was confronted with the portion of the statement where he had said so. He also denied that Shubha had telephoned him and informed that her husband and in-laws were demanding money and were harassing her and they may even kill her. He was, however, confronted with the portion of the statement where he had said so. PW-3 also denied that he had stated that Brijesh had left Shubha at her parental house in 1993 after beating her. He was confronted with the portion of the statement where he had said so. He further deposed that he did not ask Shubha the reason for her sadness. He further deposed that Shubha did not tell him that she was mentally and physically harassed by the appellants or her in laws and that she was not being given proper food and that her in laws used to threaten that they would kill her. He further said that he did not state these facts before the police. He was confronted with the portion of his statement where it was so recorded. PW-3 denied the suggestion that appellant Brijesh took Shubha with him after assuring that he would keep Shubha nicely. He also denied the suggestion that Shubha had telephoned him again to inform that her husband and in laws were harassing her and were beating her in the same manner in which they were treating her earlier. He deposed that Om Prakash, father of the deceased, did not console her that things would become normal with the lapse of time. He denied Crl. Appeal No.713/2004 Page 13 of 47 the suggestion that he had stated the said facts before the police. He was confronted with the portion of his statement where it was so recorded. He further deposed that Om Prakash never informed him that appellant Brijesh and his family members were demanding a sum of Rs.1,50,000/- and that he did not assure Om Prakash that he would make efforts to arrange a sum of Rs.50,000/-. He also deposed that he had not stated the above facts to the police. He was confronted with the portion of his statement where it was so recorded. PW-3 denied the suggestion that he was deposing falsely in order to save the appellants. He also denied the suggestion that he had been won over by the appellants. 15. PW-6, Saraswati is the sister of deceased-Shubha and an important witness in this case. This witness has deposed that on the date of marriage itself her sister came to know that the appellant No.1 was unemployed and he had not been earning any money. As per PW-6, this fact was disclosed to her when her sister came to the house for fera ceremony. Dowry articles were also thrown at the deceased by appellant No.1 and appellant no.2 (mother-in-law of Shubha) had said that sarees were not according to their choice. Dowry was demanded when her sister had returned back after the fera ceremony. According to this witness, the demand was made for a motor cycle, Rs.One lakh and Colour TV. Shubha was also taunted that articles given in the marriage were sub-standard. PW,6 deposed that, however, her mother had told Shubha that huge expenses were incurred in the marriage, therefore, they would not be in a position to give Crl. Appeal No.713/2004 Page 14 of 47 any money immediately but assured that demand would be met in due course of time. As Per PW-6, her sister was tortured. Appellant No.2 also used to beat her sister which was disclosed to her by her sister who also showed injuries on her person. Further, Shubha used to be turned out of her matrimonial house appellants made to stand outside the house the whole night. In the month of December, 1991, Rs.20,000/- was paid by the father of the deceased to the appellants. However, the harassment continued since only Rs.20,000/- were paid against the demand of Rs.One lakh. This witness further deposed that her sister was brought back to her parental house by her brother on the occasion of Rakhi when she disclosed that she was being tortured. Appellant No.1 had left Shubha at the parental house and said that he would not take her back to the matrimonial home till the time their demand is met. Her sister started living in Gurgaon and started working in a school alongside pursuing her higher studies. She started preparing for MBA, besides M.Com. In April, 1995, appellant No.1 approached her sister in the school and told her that he wanted to take her back in the matrimonial home and he would not insist upon fulfilling their earlier demand of Rs.One lakh. The matter was settled and her sister went back to the matrimonial home. However, soon thereafter appellant No.1 started torturing her sister and demanded Rs.1,50,000/- from her sister. This demand was not disclosed to her parents but only disclosed to this witness. Shubha was