Crl.A.No.339-41/2005 Page 1 of 27 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A.No.339-41/2005 % Reserved on: 23rd February, 2010 Date of Decision: 02nd March, 2010 # HANS RAJ SHARMA & ORS. ..... Appellant ! Through: Mr. A.K. Srivastava, Adv. versus $ STATE GOVT. OF N.C.T. OF DELHI ..... Respondent ^ Through: Mr.Jaideep Malik, APP * CORAM: HON'BLE MR. JUSTICE V.K. JAIN 1. Whether the 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 : V.K. JAIN, J. 1. This is an appeal against the Judgment dated 14th March, 2005 and Order on Sentence dated 16th March, 2005, whereby the appellants alongwith Naresh Kumar Sharma, son of the appellants Hans Raj Sharma and Satya Devi and elder brother of the appellant Suresh Kumar Sharma were convicted under Section 498-A & 304-B of IPC read with Section 34 thereof and were sentenced to undergo RI for one year each and to pay fine of Rs.500/- each or to undergo RI for 15 days each under Section 498-A/34 IPC and were Crl.A.No.339-41/2005 Page 2 of 27 further sentenced to undergo RI for 7 years each and to pay fine of Rs.1000/- each or to undergo RI for 30 days each in default under Section 304-B/34 IPC. The sentences were directed to run concurrently. 2. The convict Naresh Kumar Sharma has been released from jail after his having undergone the sentence awarded to him. He has already withdrawn the appeal filed by him on the ground that having undergone the sentence, he did not want to pursue it further. 3. In the night of 1st May, 1997 deceased Lovely was brought dead to St. Stephen Hospital, Tis Hazari, Delhi at about 10.45 pm, by her husband Naresh. The dead body had scar marks of injury on her neck. On receipt of information in this regard, SI Vijay Singh went to St. Stephen Hospital and called SDM Kotwali. The statement of brother and mother of the deceased was recorded by the SDM. In his statement to SDM, Subhash Chand, brother of the deceased, stated that Lovely was married on 18th January, 1995. He further stated that at the time of marriage, there was no demand of dowry and necessary items had been given to the in-laws of Lovely, without any pressure or demand. He Crl.A.No.339-41/2005 Page 3 of 27 alleged that in March, 1995, Lovely came to his house and informed that her husband Naresh had to purchase a shop at Lawrence Road. She further informed that Naresh was a heavy drinker and used to beat her. He also claimed that sometimes Naresh had beaten Lovely in front of his mother as also before him under influence of liquor. He further alleged that on 1st May, 1997, at about 11.00 am, Lovely came to Madangiri and stated that her husband Naresh Kumar, mother-in-law, father-in-law and son-in-law were harassing her and demanding Rs.50,000/-. He told Lovely that he would meet Naresh next day. Lovely, thereupon, returned to the house of her in-laws at about 7.00 pm on the same day. On 2nd May, 1997, at about 5.00 am, he received a telephonic message from an unknown person informing him that Lovely had expired. Subhash expressed suspicion that father-in- law, mother-in-law, husband and brother-in-law of Lovely had killed her. Smt. Subhadra Devi, mother of the deceased, in her statement to the SDM stated that at the time of marriage, there was no demand of dowry though necessary items were given willingly. She also expressed her full agreement with the statement given by her son Subhash and Crl.A.No.339-41/2005 Page 4 of 27 sought legal action against the father-in-law, mother-in-law, brother-in-law and husband of the Lovely. FIR was registered on the basis of the aforesaid statement, recorded by the SDM. 4. Subash Chand, brother of the deceased came in the witness Box as PW-1 and stated that after marriage, there was no demand of dowry for about two months, but thereafter her sister was harassed by the appellants, who demanded more dowry of cash amounting to Rs.1 lakh on the pretext that Naresh had to purchase a shop. He further stated that Naresh used to beat his sister, after taking drinks, at the instance of other accused persons, as his sister did not bring the required amount of dowry. He claimed that two- three times, Naresh had beaten his sister at his residence when she came there to meet them. At that time, he was under influence of liquor. He further stated that on 1st May, 1997, Lovely came to their house at about 11.00 am and told him that her husband and in-laws had sent her to bring Rs.50,000/- since they had to purchase a shop, but he could not give that amount as he was not able to arrange it. He asked his sister to return to her matrimonial home and assured that he would arrange the money on the next day Crl.A.No.339-41/2005 Page 5 of 27 and would talk to her in-laws. Thereafter, his sister returned home. He also stated that her sister was harassed and tortured mentally and physically by all the accused persons for not bringing the dowry and cash amount. 5. PW-5 Smt. Kamlesh is the neighbour of the appellants. She has stated that she had been residing in this very building for the last about 40 years and had been seeing the appellants since birth. She further stated that she had never seen them to quarrelling with and beating Lovely at any point of time. 6. PW-6 Subhadra Devi is the mother of deceased. She has stated that at the time of marriage of Lovely, there was no demand of dowry by the accused persons, but, after two months of marriage, they started harassing her daughter for dowry and demanded Rs.1 lakh for purchasing a shop. She could not arrange this amount, though her son Subhash gave Rs.10,000/- three times, through her daughter Lovely. She further stated that Naresh used to take liquor and give beating to Lovely and on two occasions, he gave beating to her at their house. She alleged that Naresh had also tried to strangulate her daughter on these occasions. She further Crl.A.No.339-41/2005 Page 6 of 27 stated that on the date of occurrence, her daughter came to their house at about 11.00 am-12.00 noon and told her that the accused were demanding Rs.50,000/- in cash. She advised her to go back and assured her that Subhash would come to her house and would ask accused persons to mend their ways. Though her daughter was not willing to go at her matrimonial home, apprehending that she would be killed by them, she returned on the advice and assurance given by her. 7. PW-9 Kuldeep Kumar is the cousin of the deceased. He stated that relation between Lovely and accused persons were normal for about 5-6 months. Thereafter, he was informed by his aunt that the in-laws of Lovely harassing her and demanding money for purchasing a shop. He further stated that 1½ years ago, when he was present there, Naresh came their under influence of liquor, quarrelled with Lovely and tried to strangulate her. 8. In their statement under Section 313 of Cr.P.C., the appellants denied the allegations against them and stated that Lovely used to remain depressed since she did not have an issue after marriage. 9. DW-1 Shambhu Dayal Shama claims to be the Crl.A.No.339-41/2005 Page 7 of 27 neighbour of the appellants and has stated that Lovely used to be perturbed, as she was not having a child. DW-2 Phoolwati is also a neighbour of the appellants. She has corroborated the testimony of DW-1 and has stated that Lovely used to remain depressed as she was not having a child. DW-3 Daulat Ram claims to have purchased land measuring 100 sq. yards from the appellant Satya Devi and claims to have paid Rs.30,000/- to her in January, 1996. DW-4 Baldev Chand has stated that he had purchased the land measuring 100 sq. yards from Satya Devi in 1996. 10. In order to succeed in charge under Section 498-A IPC, the prosecution was required to prove that the appellants had subjected deceased Lovely 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 Crl.A.No.339-41/2005 Page 8 of 27 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 Crl.A.No.339-41/2005 Page 9 of 27 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 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. 11. If the woman has 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 Crl.A.No.339-41/2005 Page 10 of 27 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. 12. Coming to the charge under Section 304-B of IPC, 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; v. Such cruelty or harassment is when to have been meted out to the woman soon before her death. Crl.A.No.339-41/2005 Page 11 of 27 13. 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. 14. 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.” 15. 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 Crl.A.No.339-41/2005 Page 12 of 27 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 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 Crl.A.No.339-41/2005 Page 13 of 27 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, 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 Crl.A.No.339-41/2005 Page 14 of 27 made after marriage, 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. 16. 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 Crl.A.No.339-41/2005 Page 15 of 27 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.” 17. 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. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning……..A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. Crl.A.No.339-41/2005 Page 16 of 27 The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure.” 18. 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 reasonably Crl.A.No.339-41/2005 Page 17 of 27 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 fulfil 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. 19. The first allegation against the appellants, which has come in the deposition of PW-4 Subhash Chand, is that Crl.A.No.339-41/2005 Page 18 of 27 Naresh, husband of the deceased Lovely, used to give beatings to her at their instance, because she did not bring the amount of Rs.1 lakh demanded from her for purchasing a shop for Naresh. A perusal of the statement made by Subhash Chand before the SDM would show that he did not say before the SDM that Naresh used to beat his sister at the instance or instigation of the appellants. Though Subhash claimed before the SDM that Naresh used to beat his sister, he did not say that Naresh used to do so at the instance of or when instigated by the appellants. PW-6 Subhadra Devi, mother of the deceased, also did not say either before the SDM or when she was examined during trial that Naresh used to beat Lovely at the instance of the appellants though she did say that Naresh used to take liquor and give beatings to her daughter Lovely. Subhash does not say that his sister has told him at any point of time that the appellants used to instigate Naresh to give beating to her. Subhash does not claim that the appellants, at any point of time, instigated Naresh, in his presence, to give beating to his sister Lovely. PW-6 Subhadra also does not say that Lovely had complaind to her that the appellants used to instigate Naresh to beat her Crl.A.No.339-41/2005 Page 19 of 27 or that she used to be beaten by Naresh at their instance. In fact, it has come in the deposition of