CRL.A.NO.613-2001 Page 1 of 37 IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl. A. NO. 613/2001 Date of Pronouncement 27 April, 2009 #ARVIND DUBEY & ORS. .... Appellants Through : Mr.G.P. Thareja with Ms.Namita Roy, Advocates for the appellnats. Versus STATE .... Respondent Through : Mr.Lovkesh Sawhney, APP for the 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 is directed against the judgment dated 24.07.2001 and order on sentence dated 28.07.2001, passed by the Ld. ADSJ, Delhi, in FIR No. 848/98, PS Malviya Nagar, under section 498A/304B, Indian Penal Code, 1860 (hereinafter referred to as, “IPC”). Post trial, appellants no.1 and 3 were sentenced to undergo Rigorous Imprisonment (hereinafter referred to as, “R.I.”) for ten years with a fine of Rs.5,000/- and in default of the payment of fine, the said appellants were directed to undergo a further RI for two months. Appellant no.2 was sentenced to undergo RI for seven years with a fine of Rs.5,000/- and in default of the payment of fine, he has been directed to undergo RI for two months. The appellants were CRL.A.NO.613-2001 Page 2 of 37 given the benefit of Section 428 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, “Cr.P.C.”). 2. The necessary facts as noticed by the trial court are: Ms. Sughandi, daughter of PW-1, Sh. Devender, was married to appellant no. 1 (Arvind Dubey) on 20.06.1997. Within fifteen months of her marriage, she is stated to have committed suicide on 06.09.1998, at the residence of her in-laws by hanging herself. As per the case of the prosecution, at the time of her marriage, the appellants had given sufficient dowry, as per their capability, however, her in-laws were not satisfied and they had made a demand for a colour T.V., which demand could not be fulfilled by the father of the girl, although a Black and White T.V. was given to the girl. However, the demand for a colour TV persistent and a further demand for a motor cycle was made. As the demands could not be met, the deceased (Ms. Sughandi) was continuously harassed for the inability of her parents to meet the demands. As per the case set up by the prosecution, the deceased (Ms.Sughandi) was not being allowed to even communicate with her family and write letters to her father and brother and she was only able to write letters in the absence of her husband and in-laws. During the fifteen months period of her marriage, once she had come to stay with her father in February, 1998 and at that time also she had reiterated to her father that her in-laws were demanding a colour TV as well as a motorcycle and as these items were not being provided, her in-laws were harassing her and also used to CRL.A.NO.613-2001 Page 3 of 37 beat her. She had pleaded to her father to give articles to her in-laws so that she could live peacefully. In turn her father had assured her that he wiykd somehow manage the amount and purchase a colour T.V. for her in-laws. But before the colour T.V. could be bought, the father received the news of suicide by his daughter. Arvind Dubey, husband (appellant no. 1 herein), Dhananjay Dubey, father-in-law (appellant no. 2 herein) and Urmilla Dubey, mother-in-law (appellant no. 3 herein) of the deceased were charged for the offence under section 498 A and 304 B, IPC. 3. In this case, nine witnesses have been examined by the prosecution. One witness was examined by the defence. Before the evidence can be minutely examined and scrutinized, the submission of learned counsel for the parties may first be noticed. 4. Learned counsel for the appellant submitted that the Trial Court has not appreciated the evidence on record and has based the conviction solely on some letters alleged to have been written by the deceased to the members of her family. It is further contended that the Trial Court Judge has failed to consider the letter alleged to be written by the deceased two days prior to her committing suicide (Exhibit PW-1/6). According to learned counsel for the appellant, in this letter the deceased has given a complete clean chit to her in-laws. She had written that there is no harassment by her in-laws and on the contrary she had pleaded to all the members of the family not to instigate her CRL.A.NO.613-2001 Page 4 of 37 against her in-laws and not to interfere in her marital life. It has been vehemently argued by the learned counsel that in the same letter, the deceased had cautioned her father about making any comments about her father-in-law that “he keeps drinking alcohol” and his remarks against her husband and calling him a “hund” (bull). It is submitted that in fact the Trial Court has erred in not reading this letter of the deceased in favour of the appellants and wrongly came to the conclusion that the said letter may not have been written by the deceased out of her own free will. 5. It is next contended by the learned counsel for the appellant that the conviction of the appellant is liable to be set aside since the suicide note in the hand of the deceased shows that she had committed suicide of her own free will and for the reason mentioned by her that she did not have any desire left for living. It is submitted that the Trial Court should have in fact relied on the suicide note and the same has not been appreciated in the right perspective. 6. It is further submitted that there are various contradictions in the statement of PW-1 (father of the deceased) in the statement made before the SDM and the statement made before the Court. It is also submitted that the conviction is based on the sole testimony of the interested witnesses and their evidence cannot be relied upon in the absence of corroboration from any of the independent witnesses, as neither CRL.A.NO.613-2001 Page 5 of 37 any neigbbour nor family members or friends have been examined in evidence. 7. Learned counsel for the appellants submits that the ingredients of Section 304(B) IPC have not been satisfied as there is nothing to show that the deceased was subjected to cruelty in relation to demand of dowry soon before her death. Counsel further submits that a bare reading of the letters would show that the deceased was an emotional person and she was home sick and further she was insecure as her father and brothers had not come to meet her. 8. It is lastly contended that there is nothing on record and there is no evidence to show that the husband of the deceased had at any point of time made a demand for dowry. In fact the letters would show that the deceased had no complaint against her husband. It is stated that the reading of the evidence including the letters would clearly show that Section 304 (B) IPC would not be attracted. 9. Per contra learned counsel for the State submits that the prosecution has been able to prove its case beyond any shadow of doubt. 10. Learned APP for the State submits that the letters are the best evidence available on record, which were written prior to the deceased having committed suicide and the factum of these letters has not been denied. Counsel for the State further submits that a joint reading of the letters with the evidence of PW-1, the father of the deceased and PW-6, the brother of the CRL.A.NO.613-2001 Page 6 of 37 deceased, would show that the deceased was being harassed and subjected to cruelty as the demand for dowry made by the appellants was not fulfilled. Counsel also submits that a bare reading of the letters would also show that the deceased was not allowed to communicate with her family as in every letter she has written that she was writing the letter in the absence of her in-laws. It is lastly submitted that the first letter written by her on 12.07.1997 (within twenty days of her marriage) would itself show that a demand was made for a colour T.V. and she expected that the same would be provided at Raksha Bandhan. The deceased had in fact written to her brother that in case he would not come on Raksha Bandhan then she would be like a “living dead person”. 11. Learned counsel for the State also submits that the evidence on record shows that soon before her death the deceased was subjected to cruelty and torture only on account of the fact that her parents failed to provide the dowry to her in-laws and for which she was forced to commit suicide. Learned counsel further submits that in fact there cannot be a straight jacket formula to decide as to what period can be termed as “soon before” in terms of section 304 B of the IPC. Counsel also submits that the term “soon before” may vary in the facts and circumstances of each case and in this case the deceased was married only for a period of fifteen months, out of which, she stayed in her matrimonial house for less than thirteen months. She wrote various letters to her father and brothers and that CRL.A.NO.613-2001 Page 7 of 37 the last communication had been written merely two days prior to her death. Besides, during her period of stay in her matrimonial home, she had told her father that she was being harassed for not giving a motorcycle and colour T.V. in dowry and that she was not permitted even to write letters to them. The harassment and demand of dowry was soon before the incident. In view of these circumstances, learned counsel submits that the Trial Court has rightly held the appellants guilty. 12. In the evidence PW-1, the father of the deceased has stated that at the time of the marriage the accused persons had demanded dowry. It would be useful to analyze in detail the evidence of PW-1, father of the deceased; PW-4 Constable Mahesh; PW-6, Keshav Pandey, brother of the deceased; PW-7 ASI Ekpal Singh, who first reached at the spot; PW-8, the doctor who conducted the post mortem; and PW-9, Sh.S.K.Singh, SDM. 13. PW-1, Davender Pandey, has deposed that Ms. Sugandhi (deceased) was his daughter. She had married appellant no. 1, Arvind Dubey, on 20.06.1997. Dhananjay Dubey and Vimla Dubey are the father and mother of Arvind Dubey. At the time of marriage, the appellant had demanded one colour TV and motor cycle. However, due to paucity of funds, he could not give these items in dowry. For this reason, the appellants used to quarrel with his daughter (deceased), used to beat her and that his daughter (deceased) had told him about this behavior meted out to her. PW-1 further deposed that in February, 1998, CRL.A.NO.613-2001 Page 8 of 37 he had called his daughter to live with them. He deposed that his daughter had told him that she was being harassed for not giving motor cycle and colour TV in dowry and that she was not being permitted even to write letter to her family. He told her daughter that he would make appropriate arrangements for money and would first buy her a colour TV and then at the marriage of his younger son he would arrange money and give the motor cycle to the appellants. When appellant no.1 came to take Sugandhi (deceased) back to the matrimonial home, he had told appellant no.1 that he would somehow arrange for the money and would first give a Colour TV and then a motor cycle. PW-1 also deposed that his daughter was not allowed to write letters to him, but sometimes, without bringing it to the notice of her in-laws she used to write letters to them. He further deposed that in the marriage, he had given a black and white TV and not a colour TV. And that his son lives in Assam. On 06.09.1998 he had received a telephone call from the in-laws of Sugandhi that Sugandhi had committed suicide. His son then gave a telephone call in Bihar to his family. On hearing this news, he along with his son Keshav Pandey came to Delhi. On reaching Police Station Malviya Nagar, they learnt that the dead body of his daughter Sugandhi was in AIIMS Hospital and where he identified the dead body of his daughter vide statement Ex.PW1/A. His statement was recorded before the ADM vide Ex.PW1/D which bears his signature at point „A‟. He had received the dead body of his daughter from the police vide CRL.A.NO.613-2001 Page 9 of 37 memo Ex.PW1/D. Ex.PW1/E1 to E5 were the letters which were received by him from his daughter. One more Regd. Letter was received after the death of Sugandhi which is Ex.PW1/E6. Envelope/Regd. Letter in which last letter was received is Ex.PW1/E7. He had handed over five letters (copies) to the police vide memo PW1/F which bears his signature at point 5. All the six letters were in handwriting of his daughter and he identified her handwriting as he was well acquainted with her writing. He deposed that he had also seen the diaryEx.PW1/G which has been written in the handwriting of his daughter. At page 136 of the diary, page marked by the I.O., there was a suicide note of his daughter, Ex.PW1/H. 14. In his cross-examination by the learned counsel for the appellant, PW-1 deposed that after receiving information of the death of his daughter, they reached Delhi on 08.09.1998 at about 5.00 a.m. in the morning. After reaching Delhi he took one or two persons of his village who live in Delhi and then went to the police station. The names of the persons from his village, whom he had taken to the police station were Thakur Prasad and Narender Singh. During cross-examination, PW-1 further deposed that he might have reached the police station at about 10.00 or 11.00 a.m. His statement was not recorded at the police station but it was recorded before the SDM. Police took him to SDM for recording the statement where his son‟s statement was also recorded. The statement of his son was not recorded at the police station but only before the SDM on that CRL.A.NO.613-2001 Page 10 of 37 day. When his statement was recorded before the SDM, SDM had asked the questions and the statement was recorded by someone who was sitting nearby. He had told the SDM that in February, 1998 he went to bring his daughter to his house (confronted with statement Ex.PW1/B where the fact is recorded in a different manner and it is recorded that his daughter came to him in February, 1998). He had told the SDM that his daughter had informed him that she was being harassed for not giving a motor cycle and a colour TV in dowry and that she was not even permitted to write letters to them. At this stage PW-1 was confronted with statement Ex.PW-1/D where the fact of the daughter telling about not permitting her to write letters was mentioned but it was not mentioned that she told this fact to the witness in February, 1998, when she went to the house of the witness. PW1/E4 and E5 were also received by Post, however, it is stated that PW-1 did not preserve the envelopes. He had not told the SDM that when Arvind (appellant no.1) came to take her back at his house he had told Arvind that he would give a colour TV and a motor cycle by arranging money somehow. He had told that he would somehow give a colour TV and a motor cycle to her in-laws. PW-1 further deposed that he had not told the SDM that his sons in Bihar had received a telephone call from the in-laws of Sugandhi about her having committed suicide, and that he had shown and given photocopies of letters PW-E1 to E5 to the SDM, however, diary of his daughter was seen by him at the police station. He CRL.A.NO.613-2001 Page 11 of 37 deposed that it was wrong to say that he had falsely told the SDM that his daughter was not permitted to write letters and she was harassed for not giving a colour TV and a motor cycle. PW-1 further deposed that it was wrong to say that his daughter was happy in her matrimonial home, and that it was also wrong to say that he was not writing letters to his daughter. PW-1 voluntarily deposed that he was regularly writing letters to his daughter. He also deposed that his daughter had died within 15 months of her marriage and out of these 15 months she had lived for two months at his house in Bihar. He denied the suggestion that suicide note is not in the handwriting of his daughter in the diary or that the accused persons had never demanded a colour TV and a motor cycle from his daughter or that she was not harassed for any dowry demand and further that he was deposing falsely. 15. PW-4, Ct. Mahesh, deposed in his examination-in-chief that in the year 1998 he was posted at P.S. Malviya Nagar. On 06.06.1998, ASI Iqbal had received DD No.88B and he accompanied him. They went to PTS Malviya Nagar, House No.143 and where they found the dead body of Sugandhi Devi lying on the bed. He took the dead body to the mortuary of AIIMS Hospital after the arrival of SDM as per the instructions received by him. The dead body remained under his protection/guard upto 09.09.1998 in the mortuary. After the post-mortem was conducted, the body was handed over to the father and brother of the deceased. Doctor had given him a CRL.A.NO.613-2001 Page 12 of 37 sealed parcel containing viscera which he brought to the police station and gave to the I.O. seizure memo of Viscera, Ex.PW4/A. 16. PW-5, SI Lekh Raj Singh, P.S. Khajuri Khas, New Delhi, deposed that on 15.09.1998 the case file of FIR no.848 was assigned to him. On 16.09.1998 he had obtained the post mortem report of the deceased and he arrested Arvind Dubey in this case on 09.10.1998. As per PW-5, he prepared the personal search memo of Arvind Dubey vide Ex.PW5/A and also prepared the challan in respect of Arvind Dubey and submitted the same to the Court. On 24.03.1999, Dhananjay Dubey, Urmila Devi and Kum. Bharti met him in the Court as they had surrendered before the Court and he formally arrested them in this case and on 25.3.1999 he prepared the challan and submitted the same to the court. He further deposed that all the persons who were arrested by him were present in the Court. He had sent the viscera of the deceased to FSL Malviya Nagar. PW-5 deposed that on 10.12.1998 he had seized photocopies of the letter from Davender Nath Pandey vide Ex.PW1/F and the photocopies of letter were Ex.PW/1 E1 to E5. The diary of the deceased containing her writings was also seized by ASI Pal vide Ex.PW5/B and handed over to him. The diary Ex.PW1/G is the same diary which was seized by him vide Ex.PW5/B. 17. In his cross-examination by learned counsel for the appellant, PW-5 deposed that it was correct that during the bail application of the accused persons before the Sessions Judge he CRL.A.NO.613-2001 Page 13 of 37 did not produce this diary. PW-5 denied the suggestion that he intentionally did not produce this diary before the Court. 18. PW-6, Keshav Kumar Pandey, deposed that Sugandhi (deceased) was his sister. She was married to Arvind Dubey sometime in 1997. At the time of marriage, they fulfilled all the demands of the in-laws of their sister as per their capacity however, he stated to not remember the demand properly. PW- 6 further deposed that the in-laws of her sister used to demand a colour TV and a motor cycle and also forbade her to write letters to them, however, she used to write letters to them clandestinely. He had assured his sister that they will fulfill this demand of colour TV and motor cycle. As per PW-6, his sister (Sugandhi) came to their house in February, 1998 and told them that they should give a colour TV and a motor cycle as she was being harassed and beaten by her in-laws for these demands. She had told that her in-laws used to beat her and had made her life miserable. He further deposed that they told to the in-laws of Sugandhi that they will meet their demand of colour TV and motor cycle at the time of marriage of his younger brother which was soon to be performed. He also deposed that they had no money as they had only recently married Sugandhi. It was further deposed by PW-6 that after sometime, Dhananjay Dubey gave a telephone call to his elder brother at Dibrugarh that Sugandhi had committed suicide. PW- 5 deposed that he was told by the in-laws that she had hanged herself. He did not know the real cause of her death because CRL.A.NO.613-2001 Page 14 of 37 he was not there and the dead body of his sister was in AIIMS. The letters written by his sister to them are Ex.PW1/E1 to E6 (letters are in original). He had made the statement to SDM which was Ex.PW6/A, which bears his signature at point „A‟ and he identified the dead body of his sister vide statement Ex.PW6/B. He further identified the accused persons namely, Dhananjay Dubey, Arvind Dubey and Urmila Dubey. 19. In his cross-examination by learned counsel for the appellants, PW-6, deposed that they had received the information of the death of his sister, one day after her death. After receiving the news, they arranged for the money and on the next day, they reached Delhi by train and directly went to the police station. PW-6 deposed that his statement was not recorded by the Thanedar but was recorded by the SDM. The police first took them to the office of the SDM where their statements were recorded and then they went to the hospital where dead body of his sister was kept. PW-6 deposed that the letters which had been presented in the Court were the letters written by his sister. However, no letter was received in his presence by his parents in Bihar. He denied the suggestion that no demand of colour TV and motorcycle was made. 20. PW-7, Iqbal Singh, ASI, P.S. Malviya Nagar, he deposed that on 06.09.1998 he received DD No.888, which is Ex.PW-7/A. He proceeded with Ct. Mahesh for PTS Malviya Nagar and where he found one lady named Sugandhi w/o Arvind Dubey lying on the bed. On enquiry he learnt that only one year had passed since CRL.A.NO.613-2001 Page 15 of 37 the marriage of the deceased, so accordingly he informed the SDM and the SHO. SDM, Sh. S.K. Singh, came to the spot and after making enquiries, the SDM directed PW-7 to call the father and mother of the deceased and further directed him to preserve the dead body for seventy two (72) hours in the mortuary. He shifted the body to AIIMS mortuary and sent message to SSP Chhapra (Bihar) for informing the parents of Sugandhi Devi. On 08.09.1998, the relatives of the deceased came to Delhi and contacted him and he produced them before the SDM. He also the recorded the details of his proceedings in DD No.25B and copy of DD No.25B is Ex.PW7/B. The SDM had recorded the statement of parents of Sugandhi on 08.09.1998 and thereafter directed to register a case under provision of IPC.