Delhi District Court
State vs Ranvir Dass Etc on 8 December, 2011
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 233/1/10
FIR No. 22/09
State Vs Ranvir Dass etc
Police Station Ranhola
Under Section 498A/ 304B / 34 IPC
ORDER ON THE POINT OF SENTENCE
08.12.2011
Pre: Ld. APP for the state.
Ld. counsel Sh. Sunil Kapoor along with counsel Sh. Pujya Kumar
Singh and Sh. Raj Kumar for convict persons.
ld. APP submits that offence of such types are increasing day by
day. He again argues and submits that accused persons have already
been acquitted for the offence u/s 302 IPC. On these grounds ld. APP
submits that convict deserve maximum punishment.
Contrary to it, ld. Counsel for convict persons submits that
convict Ranvir Dass is 24 years old and he is a very poor person. ld.
counsel submits that no previous criminal antecedents have borne on
record in respect of convict . Ld. Counsel again submits that accused
Ranvir Dass is in JC since 04.12.2009 meaning thereby that he is in JC
more than 2 years and 4 days.
1 /
Ld. Counsel again submits in respect of accused Mahender and
Urmila that they are 62 and 61 years old respectively. They are very
poor persons. They are in JC w.e.f. 26.05.2010 meaning thereby that
they are in custody more than 1 years and 6 months. They are senior
citizens. Ld. Counsel again submits that during the course of trial of
the case bail has not been granted to any of the accused persons. On
these grounds ld. counsel for convict persons prays for taking lenient
view at the time of awarding the sentence.
I have heard the submissions of ld. counsel for the convict persons
and ld. APP as well. Keeping in view of the facts and circumstances of
the case I am of the view that ends of justice will be met if accused
Ranvir Dass is sentenced to undergo 7 years RI for the offence u/s 304B
IPC and further 3 years RI for the offnce u/s 498A /34IPC and to pay a
fine of Rs.5000/ in default further six months R.I.
And further ends of justice will be met if accused Mahender and
Urmila are sentenced to undergo 19 months R.I. for the offence u/s
498A/34 IPC and to pay a fine of Rs.1000/ each in default further one
month R.I. All sentences shall run concurrently.
Accordingly, accused Ranvir Dass is sentenced to
undergo 7 years RI for the offence u/s 304 B IPC and
further 3 years RI for the offnce u/s 498A /34 IPC and to
pay a fine of Rs.5000/ in default further 6 months R.I.;
and
2 /
Accused Mahender and Urmila are sentenced to
undergo 19 months R.I. for the offence u/s 498A/34 IPC
and to pay a fine of Rs.1000/ each in default further one
month R.I.
All sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given.
Copy of this order and judgment be given to the convict at
free of cost forthwith. Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 08.12.2011
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
3 /
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS
JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 233/1/10
Assigned to Sessions. 30.03.2010
Arguments heard on 05/11/11
Date of order. 30.11.2011
FIR No. 22/09
State Vs 1. Ranvir Dass s/o Mahender Dass
(Husband)
2. Mahender Dass s/o Baldev Dass
(Father in law)
3. Urmila Devi w/o Mahender Dass
(Mother in law)
All are r/o Village Mirzapur Ghat,
Begu Sarai, Bihar.
Police Station Ranhola
Under Section 498A/ 302/ 304B / 34 IPC
JUDGEMENT
1. Briefly facts of the case as per the deposition of PW5 Mr. Kamli Dass, (father of deceased Anu Devi) are that his daughter Anu Devi was married with Ranvir Dass on 03.06.2009. In the marriage, PW5 Kamli Dass had given dowry of Rs.30,000/ and jewelery articles. An amount of Rs.50,000/ and motorcycle was demanded by accused Ranvir Dass. After the marriage, deceased Anu Devi was mentally and 4 / physically tortured and misbehaved by accused persons for demand of dowry and for not fulfilling the demand of an amount of Rs.50,000/ and motorcycle. Deceased Anu Devi used to narrate regarding the said demands as and when she used to visit her father's house.
2. On 02.10.2009, PW5 Kamli Dass, received information regarding death of his daughter, he went to her matrimonial house, where she was not found present and reached Mata Chanan Devi Hospital. She was found dead due to strangulation.
3. Deceased Anu also used to tell to her brother PW11 Rajesh that "Bhaiya ye roj hume pareshan karte hai, 50,000/ rupaiye aur motorcycle ke liye pareshan karte hain" and she narrated these facts to her brother prior to 1012 days from her death. Deceased Anu was killed by accused persons as her parents and brother could not fulfill the demand of Rs.50,000/ and a motorcycle.
4. On 02.10.2009, on receipt of DD No.41 which is Ex.PW10/A, PW10 SI 5 / Shiv Kumar along with Ct. Sonu went at Mata Chanan Devi hospital where lady was found dead, SDM was informed.
5. On 03.10.2009, on receipt of information regarding death of one lady namely deceased Anu Devi who has died within 7 years of his marriage under unnatural circumstances, statement of Kamli Dass was recorded vide Ex.PW4/A by SDM, who also conducted the formality regarding conducting postmortem which is Ex.PW4/B. On 02.10.2009, PW6 Dr.Ankit Kumar of Mata Chanan Devi Hospital, medically examined patient Anu Devi vide MLC Ex.PW6/A.
6. On 05.10.2009, PW12 Dr. Manoj Dhingra along with Dr. J.V. Kiran conducted postmortem on the dead body of Anu Devi, vide PM report Ex.PW12/A and after the postmortem viscera was taken and it was kept in a box and sealed vide seizure memo Ex.PW8/A.
7. During the course of investigation marriage card and photographs were seized by the IO, vide Ex.PW5/B and C. PW10 SI Shiv Kumar 6 / prepared site plan Ex.PW10/C. Accused persons were arrested and booked for the offences punishable u/s 498A/304B/34 IPC.
8. After the completion of the investigation challan was filed to the court of ld. MM concerned and the same was committed to the court of Sessions which was received on 30.03.2010. Consequent upon the committal of the case to the Court of Sessions charge against accused persons namely 1.Ranvir Dass 2.Mahender Dass and 3.Urmila Devi was directed to be framed for the offences punishable under section 498A/302/304B IPC vide court order dated 09.04.2010 and 13.09.2010.
9. To prove and substantiate its case the prosecution has examined 14 witnesses namely PW1 Insp. S K Rana - formal IO; PW2 HC Randhir Singh Rathee - formal witness being D.O.; PW3 HC Ram Gopal -
formal witness being MHCM at PS Ranhola; PW4 Ashish Mohan, SDM, Narela; PW5 Kamil Dass (father of deceased); PW6 Dr. Ankit Kumar; PW7 W. Ct. Meenakshi - formal witness; PW8 Ct. Raj 7 / Kumar ; PW9 Ct. Sonu Yadav formal witness; PW10 SI Shiv Kumar
- IO of the case; PW11 Rajesh (brother of deceased); PW12 Dr. Manoj Dhingra; PW13 Dr. Aadesh Kumar; PW13 SI Ved Prakash (inadvertently he has also been marked as PW13 in stead of PW14).
Formal witnesses:
10.PW1 Insp. S K Rana came to the witness box and deposed that on 22.12.2009 present case file was marked to him for further investigation. Accused Ranvir was already in JC. He tried to arrest other accused persons namely Mahender Dass, Urmila and Chhotu, who were avoiding their arrest. He made efforts to apprehend them but these accused persons could not be traced. Thereafter, on completion of investigation he filed the challan in the court. This witness has not been crossexamined.
11.PW2 HC Randhir Singh Rathee appeared in the court and deposed that on 22.10.2009 he was posted at PS Sarai Rohilla as duty officer from 5pm to 8am. He deposed that on the basis of rukka handed over
8 / by SHO he recorded the FIR of the present case. This witness got exhibited the carbon copy of FIR as Ex.PW2/A. He deposed that after registration of the FIR, copy of FIR and original rukka was handed over to SI Shiv Kumar for further investigation. This witness has also not been crossexamined.
12.PW3 HC Ram Gopal is also a formal witness being MHC(M). He deposed that on 05.10.2009 he made entry in register no.19 at serial no.4 with regard to deposit of two pulandas along with sample seal of SGMH Mortuary Mangolpuri Delhi vide photocopy of entry Ex.PW3/A. He further deposed that exhibits of this case were sent to FSL Rohini on 27.11.09 vide RC no.15/21/09 through SI Shiv Kumar. In this regard he got exhibited the photocopy of RC as Ex.PW3/B. This witness has not been crossexamined.
13.PW4 Ashish Mohan, SDM Narela came to the witness box and deposed that on 03.10.2009 he was posted as SDM Punjabi Bagh. On that day he received information from PS Ranhola that a lady by the 9 / name of Anu Devi has died within 7 years of her marriage under unnatural circumstances. He further deposed that he had conducted the inquest proceedings and recorded statement of Mr. Kamli Dass, father of deceased and issued directions for registration of case under the relevant provisions of law. He also issued directions for getting postmortem conducted on the dead body of Anu Devi. This witness got exhibited the statement of Kamli Dass as Ex.PW4/A. This witness has also got exhibited the requirement for getting the postmortem conducted as Ex.PW4/B. This witness has been crossexamined at length. I have perused the same. No contrary evidence has come on record which may go to the root of this case.
14.PW6 Dr. Ankit Kumar MBBS Mata Chanan Hospital came to the witness box and deposed that on 02.10.2009 he was posted in Mata Chanan Devi Hospital Janakpuri in the casualty department as Medical Officer. On that day he had medically examined patient Anu Devi and he got exhibited the MLC no.2035 as Ex.PW6/A. In the cross examination he deposed that patient did not have any external injury 10 / when he had medically examined her.
15.PW7 W. Ct. Meenakshi is also a formal witness. She came to the witness box and deposed that on 02.10.2009 she was posted at Police Control Room at channel no.107. She stated that she received a call from telephone no.1145582000. Said information was sent to net for further circulation and informing to the PCR. She deposed that information was that "Jo Ki ghar par sidiyon se gir gayi hai aur hospital main deadly aai hai, MLC no.2035/09." She further deposed that after searching record it came to know that this call was not received by this witness. This call was received by Ct. Usha, 8183 PCR. She brought the form which is mark A and as per this form this call was received at extension no.102 on 02.10.2009 by lady Ct. Usha. This witness has not been crossexamined.
16.PW8 Ct. Raj Kumar came to the witness box and deposed that on 05.10.2009 he was posted at PS Ranhola. He had gone to Sanjay Gandhi Hospital along with SI Shiv Kumar. After postmortem doctor 11 / handed over one sample seal and pulanda of viscera sealed with the seal of SGMH Mortuary, Mangolpuri. He handed over the same to SI Shiv Kumar, who seized the same vide seizure memo Ex.PW8/A which bears my sign at point A. Thereafter, dead body was handed over to the relatives. This witness further deposed that on 03.12.2009 he had again joined the investigation in this case along with SI Shiv Kumar and went to the house of Ranvir Dass from where he was arrested after verification. This witness got exhibited the arrest memo of accused as Ex.PW8/B, personal search memo of accused as Ex.PW8/C. He correctly identified the accused. This witness has been cross examined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
17.PW9 Ct. Sonu Yadav is also a formal witness. He came to the witnes box and deposed that he was posted at PS Ranhola on Emergency duty from 8pm to 8am. HE received a telephone call in PS and on the basis of the said call he had gone to Mata Chanan Devi Hospital along 12 / with SI Shiv Kumar. He deposed that one deceased Anu was found admitted in the hospital who was declared dead by the doctor. the dead body was sent to Mortuary and she was deputed to guard the body. He deposed that on 03.10.2009 postmortem of the dead body was got done. This witness has been crossexamined.
MATERIAL WITNESSES:
18.PW12 Dr. Manoj Dhingra, Sanjay Gandhi Memorial Hospital, Delhi came to the witness box and deposed that on 05.10.09 he was posted at SGMH hospital. This witness deposed that on that day he along with Dr. J V Kiran had conducted the postmortem of deceased Anu Devi, 22 years old female. This witness got exhibited the detailed MLC report vide Ex.PW12/A. This witness opined the cause of death is Asphyxia due to antimortem hanging". He deposed that viscera was taken. He further deposed that on 10.07.2010 after receiving FSL report no.FSL/2009/C4984 dated 25.06.2010, common poisoning could not be detected in viscera. This witness got exhibited the report in this regard as Ex.PW12/B. This witness has not been cross
13 / examined.
19.PW5 Mr. Kamli Dass being the complainant of the case is most material witness in this case. He also happens to be the father of the deceased. For the sake of brevity and convenience his statement is being reproduced verbatim which is as under: "On 3.6.2009 my daughter Anu Devi was married to accused Mr. Ranvir Dass. Accused Ranvir Dass present in court today and the witness has identified. I had given in dowry Rs.30,000/ and jewellery articles in the marriage. Accused Ranvir Dass had demanded from me one motor cycle and Rs.50,000/ I told the accused that if I would have Rs.50,000/ and motor cycle only then I shall give him and if it would not be there with me I shall not give him. When my daughter had gone to the matrimonial home she was being tortured. My daughter told me that the family members of accused are misbehaving with her. On 02.10.2009 I received information that my daughter had died. I went to the house of my daughter, my daughter was not found in her matrimonial home. Some one told me that my daughter is admitted in Mata Chanan Devi Hospital. When I reached the Mata Chanan Devi Hospital I came to know that my daughter had died. The death of my daughter is due to strangulation by her husband and his relatives. (Gala Ghot Diya). I had made a complaint to the police on which accused had been arrested and produced before the court. My statement was recorded by the SDM which is Ex.PW4/A which bears my signature at point E. Statement of my son Rajesh was also recorded. I had also identified body of my daughter and had received the same. My statement regarding identification of the body is Ex.PW5/A and it bears my signature at point A. I had received the body and had performed the last rites. I had also given the photographs of the marriage of my daughter as well as marriage card to the police which were seized vide memo Ex.PW5/B which bears my signatures at point A. The marriage card is Ex.PW5/C. The four photographs are Ex.PW5/D to G. My daughter was harassed by husband Ranvir Dass, fatherinlaw Mahender Dass, motherin law and Devar Chhotu for demand of dowry. (objected to). My 14 / daughter had died because I could not fulfill demand of Rs. 50,000/ and one motor cycle. After fourth day of marriage accused persons had demanded the motor cycle and Rs. 50,000/. My daughter had told me about this demand when she visited my house after the marriage. This demand continued till she died."
This witness has been crossexamined. In the crossexamination it has come on record that he had inquired from the neighbourer of Mahender Dass who stated that when his daughter was murdered at that time television was playing in high volume. He could not tell the name of the neighbourer. HE told this fact to the police that he was told by the neighbour of Mahender Dass that when his daughter was murdered the music was playing at high volume. He had also told this fact to the SDM who had only signed on his statement. It has also come in the crossexamination that Police had not recorded his statement at the house of Mahendser Dass. His statement was recorded by police on 03.10.2009 on Nangloi Court. His statement was recorded only once. It has also come on record that his daughter had never made any complaint to the police or any authority that the accused and his family used to harass and torture her.
15 /
20.PW10 SI Shiv Kumar is also the most material witness in this case came to the witness box and deposed that on 02.10.2009 he was posted at PS Ranhola on Emergency duty from 8.00p.m. to 8.00am.
On the date DD no.41A was marked to him vide Ex.PW10/A (attested copy). On the basis of said DD he along with Ct. Sonu went to Mata Chanan Devi hospital where Anu was found admitted in the hospital in dead condition. The lady was sent to mortuary and Ct. Sonu was deputed to guard the dead body. SDM was informed. Statement of family members of deceased were recorded by the SDM. In the night IO/PW10 went to C112, Ambedkar Place where father of accused met there. PW10 further deposed that he tried to verify the fact of this case, whether lady had fallen from staircases but after verification he came to know the fact that lady had fallen from the stair cases is "wrong". He further deposed that on 03.10.2009 doctor of Sanjay Gandhi Memorial Hospital had conducted the postmortem on the body of Anu. After the postmortem Ct. Raj Kumar handed over viscera box and the sample seal. Again said postmortem was conducted on 05.10.2009. (objected to by the defence counsel) 16 / Viscera box and the sample seal was seized vide seizure memo Ex.PW8/A, which bears his signature at point B. During investigation he had also seized marriage card and the photograph of marriage.
Same were seized vide seizure memo Ex.PW5/B, which bears his signature at point B. marriage card is Ex.PW5/C. This witness further deposed that on 03.12.2009 accused Ranvir Dass was arrested in this case vide arrest memo Ex.PW8/B and his personal search was conducted vide memo Ex.PW8/C. Both the memos bears his signature at point C. During investigation exhibits of this case were deposited to FSL Rohini vide RC no.15/21/09. Photocopy of RC is Ex.PW10/A. Acknowledgment of FSL is Ex.PW10/B. He further categorically stated that he had also prepared the site plan on 22.10.2009 which is Ex.PW10/C. FIR in this case was registered as per the direction of SDM. SDM gave direction for registration of case on 22.10.2009 as SDM told that he would issue direction after receiving the postmortem report. This witness further deposed that during the course of trial SHO collected the FSL report and filed in the Court, which is Ex.PW10/D. On 18.12.2009 he was transferred from the PS and the case file was 17 / deposited with the MHCR. This witness has been crossexamined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
21.PW13 SI Ved Prakash came to the witness box and deposed that on 03.03.2010, he was posted at PS Ranhola. On that day, investigation of the present case was assigned to him. He inspected the file. On 06.03.2010, he got issued NBWs against accused Mahender Dass and Urmila and also got issued the process under section 82 Cr.P.C.
against them. On 26.05.2010, accused Mahender Dass and Urmila Devi surrendered themselves before the concerned court. He attended the court and after obtaining the permission from the court, interrogated both accused persons and later on arrested both of them, vide arrest memo and personal search memo Ex.PW13/A, B, C and D. Both accused persons were produced before the concerned court and from there they were sent to JC. I identify accused persons present before the court. On 25.06.2010, FSL report was got received and opinion 18 / was sought from the doctor. He recorded the statement of witnesses and after completion of the investigation, challan was prepared. This witness has been crossexamined by defence counsel. No contradictory evidence has come on record which may go to the root of this case.
22.PW11 Rajesh is the most material witness in this case being brother of the deceased Anu. For the sake of brevity his statement is also being reproduced verbatim which is as under: "Anu was my sister. Marriage of my sister Anu was solemnized on 03.06.2009 along with Ranvir Dass s/o Mahinder Das, R/o Bakrola, Delhi. The marriage was solemnized in District Begusarai, Bihar. At the time of marriage we had given Rs.30,000/ and the jewellery articles but the accused persons had demanded Rs. 50,000/ and motor cycle. My father had told whenever he will arrange money, he will give Rs.50,000/ and motor cycle (mere pitaji ne kaha tha ki hamare pass jab bhi intejaam hoga hum tumhari yeh mang puri kar deinge).
After the marriage, I came to Delhi. Whenever I talk to my sister on telephone she told me that "Bhaiya yeh log humein pareshaan kart hain pachas hazar rupe aur motorcycle ke liye pareshaan karte hain" I had talked to my sister about 10 or 12 days prior her death.
When conversation between me and my sister was going on her telephone was snatched by her motherin law. My sister was harassed by her husband Ranvir Dass, her Dever Chhotu, fatherinlaw Mahinder Dass and her motherinlaw. My sister is killed by the 19 / accused Ranvir Dass and his family members as we could not fulfill their demand of Rs.50,000/ and motor cycle. My statement was recorded by the SDM. My statement is Ex.PW11/A which bears my signature at point A. Only accused Ranvir Dass is present in the court. On 02.10.2009 I came to know about the incident. The accused persons were not telling the correct address of the hospital some time they were telling Chhaju Ram hospital, Mahindra Hospital but dead body of my sister was found in the Mata Chanan Devi Hospital."
This witness has also been crossexamined at length. I have gone through the crossexamination very carefully. No contradiction has come on record which may go to the root of this case.
23.After closing prosecution evidence, statements of accused persons u/s 313 Cr. PC were recorded. Accused persons have denied all the allegations and deposed that they have been falsely implicated in this case. They deposed that they had never demanded any dowry. They also pleaded that they had never tortured the deceased. They are innocent and they have been falsely implicated in this case. However, they did not lead any defence evidence in their defence.
24.Thereafter, case was fixed for final arguments. During the course of 20 / arguments ld. counsel for the accused persons filed written submission in support of contentions that in the testimonies of material witnesses there are improvements. Ld. counsel for the accused persons also argued and submitted that witnesses are interested witnesses. He also argued and submitted that allegations are vague in nature. Ld. counsel for accused persons also argued and submitted that PW5 and PW11 have not put any allegations against the accused persons that is why accused persons were not arrested on the day of the alleged incident. Story of the prosecution is manipulated.
There is nothing against accused persons and prosecution has failed to prove the allegations against accused persons without any doubt and they have failed to discharge their burden against the accused persons. The burden of proof cannot be shifted to the accused persons for innocence unless or until the prosecution proves the same in accordance with law. He further submitted that in this case, same is missing and benefit of doubt should be given to the accused persons. In support of his contentions ld. counsel has also relied upon the following judgments which are as under: 21 /
i) Crimes to 1995 (1) page 611 - Jai Ram Vs State of Rajasthan, in this case it has been observed that: "14. A combined reading of Section 2 of the Dowry Prohibition Act, 1961, 304B, IPC and Section 113B, Evidence Act unmistakably shows that in order to draw the presumption as to "dowry death," the prosecution must prove (i) that the death of the deceased had taken place within seven years of her marriage; (ii) that she had met with an unnatural death either due to any burns or bodily injuries or under abnormal circumstances and (iii) that soon before her death, she was subjected to cruelty or harassment or by her husband or any relative for or in connection with any demand for dowry. (Emphasis added) Therefore, the initial burden lies on the prosecution to prove the aforementioned basic ingredient including the fact that such woman soon before her death was subjected to cruelty or harassment in connection with any demand for dowry. If this initial burden is successfully discharged by the prosecution then the provisions of Sec 113B, Evidence Act can be pressed into service to lake a presumption that such person had caused the dowry death."
"21. As regards the offence Under Section 498A IPC, PW 1 Sultana Ram in FIR Ex. D.1 has made an omnibus allegation that the appellant, coaccused Necku Ram, Smt. Surji and Menpal etc. subjected the deceased to cruelty and used to make demand for dowry. During the trial also, PW I Sultana Ram and PW 3 Smt. Guddi have stated likewise, but the learned trial Judge has disbelieved their testimony and acquitted coaccused persons. Hence on the basis of same evidence, the learned trial Judge had no jurisdiction to practise discrimination in respect of the appellant and to convict him for the offence Under Section 498A IPC. Moreover, the evidence regarding the alleged cruelty towards the deceased is also quite vague, incomplete, contradictory, replete with material contradictions and unworthy off credence. Therefore, in my considered opinion, the learned trial Judge has fallen into grave error in finding the appellant guilty for the offence Under Section 498A IPC."
ii) 2001 (2) JCC (SC) 261 - Sunil Bajaj Vs State of M.P. wherein it has been observed that : 22 / "We have given our attention and consideration to the submissions made by the learned counsel for the parties. Normally this Court will be slow and reluctant, as it ought to be, to upset the order of conviction of the trial court as confirmed by the High Court appreciating the evidence placed on record. But in cases where both the courts concurrently recorded a finding that the accused was guilty of an offence in the absence of evidence satisfying the necessary ingredients of an offence; in other words, when no offence was made out, it becomes necessary to disturb such an order of conviction and sentence to meet the demand of justice. In order to convict an accused for an offence under Section 304B IPC, the following essentials must be satisfied:
1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;
2) Such death must have occurred within 7 years of her marriage;
3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
4) Such cruelty or harassment must be for or in connection with demand of dowry."
iii)2001 (2) JCC (SC) 203 - Kalyan and Ors Vs State of UP, in this case it has also been observed that: "What weighed most to the trial court for acquitting the accused persons was that the prosecution had failed to prove the case beyond reasonable doubt and the sequence of circumstances narrated by the witnesses in the court was totally different than the occurrence detailed in the First Information Report. In the First Information Report it is stated that while attacking the deceased persons the accused persons had used only guns with which they were armed. Only Ram Murti and Ram Dayal(PWs) are stated to have been assaulted with lathi, ballam and kanta. The aforesaid two persons are stated to have been assaulted when they were running from the house of the complainant. It may be worth noticing that according to the FIR, at that time, only such accused persons who were armed with guns were on the ground whereas others are suggested to have climbed the roof tops to murder the deceased persons, namely,
23 / Mulaim Singh, Munshi Singh, and Itwari. None of the persons who were on the ground are stated to be armed with any weapons other than the guns. Similarly it is not evident from the FIR that who of the accused persons went on the roof top and with what weapons they were armed with. The incident stated in the FIR, being the first version of the occurrence has to be given due weight. The trial court does not appear to have committed any glaring irregularity in disbelieving the alleged eye witnesses whose testimony was concededly contrary to the case of the prosecution as projected in the FIR. It is true that the statements of PWs 1, 4, 5, and 6 cannot be thrown out merely on the ground that they are partisan witnesses or have any enmity with some of the accused persons. However, the testimony of such witnesses require to be judged with more circumspection. The case of the prosecution, as sought to be proved at the trial, appears to be different than the one as narrated in the FIR. When the testimony of eyewitnesses is totally different from the story set out in the FIR, the trial court cannot be held to have taken a view which was not at all possible. The view taken by the trial court could have been disturbed only if there were compelling reasons. We do not find any compelling reason noticed by the High Court while setting aside the order of acquittal."
iv)2004 (1) JCC 627 - Baljeet Singh & Anr. Vs. State of Haryana, it has been observed that: "A perusal of this section clearly shows that if a married woman dies otherwise than under normal circumstances within 7 years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand for dowry, such death shall be called "dowry death" and such husband or relative shall be deemed to have caused the death. The conditions precedent for establishing an offence under this Section are as follows: (a) that a married woman had died otherwise than under normal circumstances; (b) such death was within 7 years of her marriage; (c) and the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death.
Section 113B permits a presumption to be drawn against the accused in regard to dowry death provided the prosecution establishes that soon before her death the woman was subjected to cruelty or harassment.
24 / Having noticed the requirement of law both under Section 304B of the IPC as also under Section 113B of the Evidence Act, we are of the considered opinion that both the courts below erred in drawing an adverse presumption against the accused by shifting the onus on them to prove the date of marriage, which, in our opinion, is not the requirement of law. On the contrary, the law requires the prosecution to establish first by cogent evidence that the death in the case occurred within 7 years of the marriage. Therefore, we will have to consider whether the prosecution has established the factum of Darshana having died within 5 years of her marriage as contended by PW4. A perusal of his evidence shows that according to him marriage of Darshana was solemnized in the year 1982 but he was not aware which Sambat it was. He says it was the month of Jaistha but was not sure whether it was Sambat 2035. He specifically states that a Bahi entry was made by his nephew Satbir in regard to the date of marriage and expenses incurred in connection therewith, but this document was not produced in the court. Existence of such a document is established not only from the evidence of PW4 but also from the evidence of the Investigating Officer PW10 who says that he was made known of the existence of such a document but he did not either seize the said document or verify the date of marriage from the said document. He also states that he made an inquiry about the year of marriage of Darshana and nobody was able to tell the date but year of marriage was told to him. He goes further to state that he did not record the statement of those persons who told him about the year of marriage. Therefore, it is clear that the prosecution has failed to produce the available evidence regarding the date of Darshana's marriage thereby failed to discharge its initial onus of proof. The defence in this case has unequivocally challenged the correctness of the date of marriage, as stated by the prosecution. It even examined defence witnesses in this regard. Be that as it may the question whether the defence has been able to establish its version of the date of marriage is immaterial because in the first instance it was for the prosecution to establish this fact which for reasons stated above, it has failed to do. Both the courts below, thus, have clearly erred in shifting the onus of proving the date of marriage on the defence and drawing a presumption against it. This is evident from the finding of the trial court which is as follows : "Accused Baljeet in this case has not been able to rebut the mandatory presumption under Section 113B of the Indian Evidence Act thus prosecution has been able to prove him the guilt". This finding which is 25 / concurred to by the High Court, in our opinion, is wholly erroneous and unsustainable in law.
PW5 the mother of the deceased in her examinationin chief repeats whatever her husband has stated in his evidence which we have already considered and not found it safe to rely on. In her crossexamination she stated that after the death of Rohtas, who was her only brother, Darshana used to be depressed. She further states that she was also depressed because she had no children. This indicates that there is a possibility of Darshana having committed suicide in a state of depression."
v) 2009 (3) JCC (SC) 1840 - Raman Kumar Vs. State of Punjab , it has been observed that : "15. The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its Twentyfirst Report dated 1081988 on "Dowry Deaths and Law Reform". Keeping in view the impediment in the preexisting law in securing evidence to prove dowry related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113B in the Evidence Act has been inserted. As per the definition of "dowry death" in Section 304B IPC and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been "soon before her death" subjected to cruelty or harassment "for or in connection with the demand for dowry".
Presumption under Section 113B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of a woman.
(This means that the presumption can be raised only if the accused is being tried for the offence under Section 304B IPC.) (2) The woman was subjected to cruelty or harassment by her husband or his relatives. (3) Such cruelty or harassment was for, or in connection with any demand for dowry. (4) Such cruelty or harassment was soon before her death.
26 /
16. A conjoint reading of Section 113B of the Evidence Act and Section 304B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. The prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the "death occurring otherwise than in normal circumstances". The expression "soon before" is very relevant where Section 113B of the Evidence Act and Section 304B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led in by the prosecution. "Soon before" is a relative term and it would depend upon the circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304B IPC and Section 113B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration
(a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods soon after the theft, is either the thief who has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence."
vi)2010 (3) AIR Karnataka High Court Reports, 27 / Vol.3 (SC) 467 - Durga Prasad & Anr. Vs. State of M.P., in this case it has also been observed that :
14. Having carefully considered the submissions made on behalf of the respective parties, we are inclined to allow the benefit of doubt to the Appellants having particular regard to the fact that except for certain bald statements made by PWs.1 and 3 alleging that the victim had been subjected to cruelty and harassment prior to her death, there is no other evidence to prove that the victim committed suicide on account of cruelty and 13 harassment to which she was subjected just prior to her death, which, in fact, are the ingredients of the evidence to be led in respect of Section 113B of the Indian Evidence Act, 1872, in order to bring home the guilt against an accused under Section 304B IPC.
15. As has been mentioned herein before, in order to hold an accused guilty of an offence under Section 304B IPC, it has to be shown that apart from the fact that the woman died on account of burn or bodily injury, otherwise than under normal circumstances, within 7 years of her marriage, it has also to be shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. Only then would such death be called "dowry death" and such husband or relative shall be deemed to have caused the death of the woman concerned.
17. The decision cited by Mr. R.P. Gupta, learned Senior Advocate, in Biswajit Halder's case (supra) was rendered in almost similar circumstances. In order to bring home a conviction under Section 304 B IPC, it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the victim, but that such treatment was in connection with the demand for dowry. In our view, the prosecution in this case has failed to fully satisfy the requirements of both Section 113B of the Evidence Act, 1872 and Section 304B of the Indian Penal Code.
19. In that view of the matter, we allow the Appeal and set aside the judgment of the trial Court convicting and sentencing the Appellants of offences alleged to have been committed under Sections 498A and 304B IPC. The judgment of the 16 High Court impugned in the instant Appeal is also set aside. In the event, the 28 / Appellants are on bail, they shall be discharged from their bail bonds, and, in the event they are in custody, they should be released forthwith.
vii)2011 Cr.LJ (NOC) 449 (BOM) ND Deshpande,
i) Bharat Pandurang Patil Vs. State of Maharashtra, it has been observed that : "18. In the present case, when the accused returned home and found that Yogita had consumed poisonous medicines and lying unconscious in the house, he immediately helped her by removing her to hospital and borne the hospital expenses and was consistently attending for her survival. Such conduct is no doubt relevant and during such period of treatment there was no complaint or whisper by complainant ASI of the alleged cruelty or any allegations. All that came into light only after two days of the incident i.e. after death. Thus, this can be viewed with suspicion and therefore all allegations about harassment and beating appears to be after thought only because he lost his daughter.
19. In a Criminal Appeal for the above said reasons re appreciation of evidence is justified. In my opinion, there is no sufficient evidence or material brought on record to bring home the charge of cruelty leading to abetment of suicide. Appeal therefore deserves to be allowed. Hence, following order is passed:
ORDER (1) Appeal is allowed. The Appellant/Accused is held not guilty and is acquitted of the charges.
(2) The impugned judgment of conviction and order of sentence dated 7th September, 2006 is quashed and set aside. The appellant is acquitted of the charge under section 498A IPC and under section 306 IPC. He shall be set at liberty if not required in any other case.
Appeal is accordingly allowed and disposed of."
viii)ILR (2011) Delhi - Rani Vs. The State of NCT of Delhi, in this case it has also been observed that: "To prove an offence under section 304B IPC mere demand is not the prerequisite, there should be demand coupled with cruelty or harassment in connection with 29 / demand."
ix)2011 (2) CC Cases (HC) 47 - State Vs. Anoop Singh & Ors. wherein it has been observed that: "Section 304B - Vieo most plausible on basis of evidence. Not in dispute that deceased met with an unfortunate death within about 2 ½ years of marriage. As per evidence adduced, demand for money for purchase of a motor cycle was made in 2005, and alleged burn injuries with a heated iron given in 2007. As per PW2 father of deceased, matter regarding dowry demand was reconciled during his visit to place of accused persons when he had also stayed overnight in the matrimonial house of his daughter.
Held : For bringing a case within four corners of section 304 B, the cruelty or harassment has to be meted out to a woman soon before her death. Absolutely no evidence regarding any cruelty envisaged u/sec. 304 B after 2007. Alleged cruelty before Feb. 2007 though not proved, otherwise will not come in proximity test. View taken by ASJ w the most plausible view on basis of evidence produced during trial. Petition was dismissed."
25.On the strength of the above citations ld. counsel for the accused persons submitted that accused persons be acquitted by giving them benefit of doubt.
26.Contrary to the submissions of ld. counsel for the accused persons, ld. APP argued and submitted that death of deceased is unnatural death. Ld. APP again argued and submitted that prosecution has successfully proved its case against accused persons for causing cruelty and demand of dowry and unnatural death of deceased. He 30 / further argued and submitted that contradictions which have come on record are of minor nature. Ld. APP further argued and submitted that this is the case where an innocent girl has been murdered by accused persons by hanging her as per doctors opinion while on record it has also been established that accused persons tried to screen their offence by submitting before police and in hospital that deceased has fallen down from the staircase. In this regard, IO has also thrown the light, who affirmed the fact in his deposition that fact of falling down from staircase was found "wrong" after inquiry. Ld. APP further argued and submitted that deceased Anu has been murdered by accused persons within four months of her marriage since her marriage took place with accused Ranvir on 03.06.2009 and she was murdered on 02.10.2009. Ld. APP further argued and submitted that factum of demand of dowry has also been proved on record by PW5 and PW11 who in their deposition have deposed that accused persons demanded Rs.50,000/ and a motorcycle. On these grounds ld. APP prayed for convicting the accused persons for the offences u/s 498A/302/304B/34 IPC.
31 /
27.Having gone through the whole case file and arguments of both sides.
I would like to discuss the Section 113 B of the Evidence Act which is also relevant for the case in hand. Both Sections 304 B IPC and Section 113 B of the Evidence Act were inserted as noted earlier by the Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B which reads as follows : "113 B : Presumption as to dowry death When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation For the purposes of this section `dowry death' shall have the same meaning as in Section 304 B of the Indian Penal Code (45 of 1860)."
28.The necessity for insertion of the two provisions has been amply analyzed by the Law Commission of India in its 21st Report dated 10th August, 1988 on `Dowry Deaths and Law Reform'. Keeping in view the impediment in the pre existing law in securing evidence to prove dowry related deaths, legislature thought it wise to insert a provision 32 / relating to presumption of dowry death on proof of certain essentials. It is in this background presumptive Section 113 B in the Evidence Act has been inserted. As per the definition of `dowry death' in Section 304 B IPC and the wording in the presumptive Section 113 B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for in connection with the demand of dowry". Presumption under Section 113 B is a presumption of law. One proof of the essentials mentioned therein, it becomes obligatory on the Court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials :
(1) The question before the Court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304 B IPC ).
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.
29.A conjoint reading of Section 113 B of the Evidence Act and Section 33 / 304 B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment.
Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances'. The expression `soon before' is very relevant where Section 113 B of the Evidence Act and Section 304 B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. `Soon before' is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression `soon before her death' used in the substantive Section 304B IPC and Section 113 B of the Evidence Act is present with the idea of proximity test. No definite 34 / period has been indicated and the expression `soon before' is not defined. A reference to expression `soon before' used in Section 114, Illustration (a) of the Evidence Act is relevant. It lays down that a Court may presume that a man who is in the possession of goods `soon after the theft, is either the thief has received the goods knowing them to be stolen, unless he can account for his possession. The determination of the period which can come within the term `soon before death' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death.
If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
30.The presumption u/s 113B of the Evidence Act for the purpose of 35 / section 304B can only be used when the death of deceased must have been "soon before her death subjected to cruelty or harassment" "for or in connection with the demand of dowry". Presumption u/s 113 B is a presumption of law. The Hon'ble Apex Court in 'Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, (SC)' reiterating and elaborating the similar principles defining section 498 A IPC and 304 B IPC observed that:
"12. Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC. Cruelty has been defined in the Explanation for the purpose of Section 498A. Substantive Section 498A IPC and presumptive Section 113A of the Evidence Act have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498A gives the meaning of `cruelty'. In Section 304B there is no such explanation about the meaning of `cruelty'. But having regard to common background to these offences it has to be taken that the meaning of `cruelty' or `harassment' is the same as prescribed in the Explanation to Section 498A under which `cruelty' by itself amounts to an offence. Under Section 304B it is `dowry death' that is punishable and such death should have occurred with seven years of marriage. No such period is mentioned in Section 498A. If the case is established, there can be a conviction under both the sections. (See Akula Ravinder and others v. The State of Andhra Pradesh, 1991(3) RCR(Crl.) 97 (SC) : AIR 1991 SC 1142). Period of operation of Section 113B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage."
"13. Section 2 of the Dowry Prohibition Act, 1961 (in short `Dowry Act') defines "dowry" as under : Section 2. Definition of `dowry' In this Act, `dowry' means any property or valuable security given or agreed to be given either directly or
36 / indirectly
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents 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 or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mehr in the case of persons to whom the Muslim personal law (Shariat) applies. Explanation I For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II The expression `valuable security' has the same meaning in Section 30 of the Indian Penal Code (45 of 1860)."
"14. The word "dowry" in Section 304B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punjab, 2001(4) RCR(Crl.) 355 (SC) :
2002(1) SCC 633). As was observed in said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused.... or occurs otherwise than under normal circumstances" as expressed in Section 304B IPC."
31.Careful perusal of the aforesaid citations one of the most ingredients of the offence u/s 304 B IPC is that cruelty and harassment must be on account of demand for dowry.
32.In light of the above discussion the findings of this Court are as follows:
(a) The marriage of deceased Anu took place with accused Ranvir Dass on 03.06.2009 vide depositions of PW5 and 37 / PW11 vide their depositions Ex.PW4/A recorded by SDM, seizure memo of marriage card vide Ex.PW5/B; marriage card vide Ex.PW5/C, 4 photographs of marriage are ex.PW5/D to PW5/G.
(b) Death of deceased Anu took place about 4 months after her marriage i.e. on 02.10.2009 vide depositions of PW5 Kamil Dass (father of deceased), PW11 Rajesh (brother of deceased), PW6 Dr. Ankit Kumar; PW10 SI Shiv Kumar - IO of the case; PW12 Dr. Manoj Dhingra; and PW13 Dr. Aadesh Kumar, which proves that death of deceased was within 7 years of her marriage;
(c) At the time of marriage of deceased Rs.30,000/ and jewellery articles were given to the accused but accused persons demanded Rs.50,000/ and motorcycle vide depositions of PW5 and PW11 and Ex.PW4/A(Statement recorded by SDM of PW5) and statement Ex.PW11/A;
(d) PW11 talked to his sister on telephone she told him that :
"Bhaiya yeh log humein pareshaan kart hain pachas hazar rupe aur motorcycle ke liye pareshaan karte hain"
He talked to his sister about 10 or 12 days prior her death, vide deposition of PW11 Rajesh and Ex,PW11/A;
(e) Deceased was subjected to cruelty by accused persons just after the marriage since dowry demands of accused persons were not fulfilled vide depositions of PW5 and PW11 and statement Ex.PW4/A and statement Ex.PW11/A;
(f) Deceased Anu suffered mental and physical torture at the hands of accused persons vide deposition of PW5 and PW11 and statements Ex.PW4/A and Ex.PW11/A;
(g) As per doctors' opinion the cause of death is Asphyxia due to antimortem hanging vide depositions of PW6 Dr. Ankit Kumar; PW10 SI Shiv Kumar - IO of the case; PW12 Dr. Manoj Dhingra; and PW13 Dr. Aadesh Kumar and postmortem report Ex.PW4/B while accused persons stated to the doctors that she has fallen down from the staircase;
(h) The death of deceased Anu is unnatural death;
38 /
33.To rebut the presumption for the offence against section 304B IPC, accused persons have not examined any defence witness. However, in the statement recorded u/s 313 Cr. PC accused persons have pleaded that deceased suffered death on falling from the staircase.
The simplicitor plea that deceased Anu suffered death on account of falling from staircase does not come to rescue to the accused persons precisely for the reasons that it does not meet the standard to rebut the presumption of dowry death against accused persons as it is not followed by any other supportive material.
34.For the purpose of section 498A IPC, "cruelty" means :
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any properly or valuable security or is on account of failure by her or any person related to her to meet such demand.
35.For the sake of brevity and convenience let the relevant sections be reproduced verbatim which are as under: "304B. Dowry death.(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her 39 / marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation.For the purpose of this sub section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.] Section 498A IPC: Husband or relative of husband of a woman subjecting her to cruelty.Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
36.The determination of the period which can come within the term `soon before death' is left to be determined by the Courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression `soon before death' would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is 40 / remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence.
In the case in hand, deceased Anu was subjected to cruelty by accused persons just after the marriage i.e. from 03.06.2009 till her death on 02.10.2009 since unlawful demands of accused persons for dowry i.e. Rs.50,000/ and one motorcycle could not be fulfilled by the parents of deceased Anu vide depositions of PW5 Kamil Dass (Father of deceased) and PW11 Rajesh (brother of deceased) and their statements Ex.PW4/A and statement Ex.PW11/A. Unnatural death of deceased Anu took place within 7 years of her marriage. Besides, accused persons did not produce any defence witness in respect of their plea that deceased had fallen from the staircase. Their defence has not been corroborated by any medical evidence. Ingredients of cruelty for section 498A IPC are met out under clause (b) of Section 498A IPC of the case in hand. The factum of death of deceased Anu within 04 months of her marriage directly reflects that she had been subjected to torture and harassment at the hands of the accused persons. Therefore, citations as relied upon by the ld. counsel for the 41 / accused persons and contentions of ld. counsel for accused persons that they have not caused any cruelty upon the deceased Anu are not sustainable in light of the observations made by Hon'ble Supreme Court in judgment 'Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, (SC)' (supra).
37.Careful analysis and findings arrived at by this court in preceding paras it has been observed in the deposition of PW5 Kamil Dass who happens to be the father of deceased Anu, that accused Ranvir Dass, who happens to be the husband of deceased had demanded one motor cycle and Rs.50,000/ at the time of marriage on 03.06.2009.
This deposition is the material and cogent deposition of PW5 and demand for dowry is proved only qua accused Ranvir Dass.
38.So long as other two coaccused persons namely Mahender Dass and Urmila Devi are concerned, no such demand in specific and discrete particular has come on record. Therefore, to my view the prosecution has failed to prove the charge u/s 304B IPC against both accused persons.
42 /
39.So long as the cruelty aspect suffered by the deceased is concerned, in this regard the allegations against all the three accused persons are proved beyond reasonable doubt as in the deposition of PW5 and PW11 it has specifically pointed out that the cruelty was suffered by the deceased in view of my findings at page no. '35'.
40.Taking into consideration the depositions of PW5 Kamil Dass (father of deceased), PW11 Rajesh (brother of deceased), PW6 Dr. Ankit Kumar; PW10 SI Shiv Kumar - IO of the case; PW12 Dr. Manoj Dhingra; and PW13 Dr. Aadesh Kumar and postmortem report Ex.PW4/B, statement Ex.PW4/A (of PW5 recorded by SDM) and statement of brother of deceased Ex.PW11/A the prosecution has successfully proved its case for the offence punishable u/s 304B IPC qua accused Ranvir Dass in light of the judgment i.e. Crimes to 1995 (1) page 611 - Jai Ram Vs State of Rajasthan,(Supra) that death of deceased Anu had taken place within seven years of her marriage;
that she had met with an unnatural death under abnormal 43 / circumstances; and that soon before her death, she was subjected to cruelty and harassment by accused persons for demand of dowry i.e. Rs.50,000/ and a motorcycle. In the present case the incident took place between 03.06.2009 to 02.10.2009 and the deceased Anu suffered death at the instance of accused in light of the preceding discussion.
41.So long as offence u/s 498A IPC is concerned, in this regard allegations causing cruelty to the deceased Anu has been proved beyond reasonable doubt against all the three accused persons vide depositions of PW5 Kamil Dass (father of deceased), PW11 Rajesh (brother of deceased); and PW10 SI Shiv Kumar - IO of the case.
42.Though, no specific dates of causing cruelty and demand of dowry has been proved but the factum of death of deceased Anu suffered at her matrimonial home reasonably leads to conclude that she expired within 4 months of the marriage i.e. she was married with accused Ranvir Dass on 03.06.2009 and expired on 02.10.2009. Therefore, the cross examination conducted by the ld. counsel for the accused persons though has brought on record contradictions in the depositions of PW5 and PW11. These contradictions falls within the domain of minor 44 / contradictions and Hon'ble Supreme Court in case of Jaskaran Singh Vs State 1997 SCC (Crl) 651 observed in the following words: "When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
Again, Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution".
The observations made in the aforesaid two cases by the Hon'ble Supreme Court are exfacie indicative of the fact that a clear distinction be made between the major contradictions and minor contradictions when the contradictions are minor the truthfulness of the witness cannot be discredited in all and contrary to it when the contradictions are major these affect the root of the case and leave an impression of untruthfulness of the witnesses. Therefore, the citations relied upon by the ld. counsel as discussed in the preceding paras are not applicable in the present case. Besides, in light of the judgment 'Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, (SC)' (supra), the stand taken by the accused persons that deceased Anu suffered death on account of falling from staircase does not meet 45 / out the standard of creating doubt that she suffered death on account of falling from staircase since neither it is supported by any other material nor any defence has been produced by the accused persons.
Rather, PW10 IO/SI Shiv Kumar in his deposition has categorically proved that the fact of finding regarding suffering of death by the deceased from staircase, was found "wrong". In the present case the incident period i.e. 03.06.2009 to 02.10.2009 and causing cruelty, harassment and torture for dowry demand falls within the principle of reasonableness for the conclusion of soon before the death. Thus, I convict accused Ranvir Dass for the offences u/s 498A/34 & 304B IPC and accused persons namely 2.Mahinder Dass and 3.Urmila Devi for the offence u/s 498A/ 34 IPC.
Accordingly, I convict accused 1.Ranvir Dass for the offence punishable u/s 498A/34 & 304B IPC for the reasons as discussed in the preceding paras; and I convict accused persons namely 2.Mahinder Dass and 3.Urmila Devi for the offence u/s 498A/ 34 IPC for the reasons as discussed above in the preceding paras.
Prosecution has failed to prove the case under section 302 IPC, so I acquit them for the offence u/s 302 IPC ANNOUNCED IN THE OPEN COURT ON THIS 30.11.2011 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 46 /