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Delhi District Court

In Case Titled As Ramesh Kumar vs . State (2001( (9) Scc 618 on 3 June, 2010

       IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
        ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.


            SC NO. 60/1/08

            State

            Versus
1-          Vikram Mudgal S/o Sh. Sudhir Mudgal,
2-          Smt. Sharda W/o Sh. Sudhir Mudgal,

            Both R/o H.No. 12/1, G.N. 8C, Uttranchal Enclave,
            Burari, Delhi.

            (i)Case arising out of        FIR No. 145/08
                                          U/S: 498A/304B/34 IPC
                                          P.S. Timar Pur
            (ii) Date of FIR              18.3.2008
            (iii) Date of Institution     03/07/08
            (iv) Date of Final Arguments 22/05/10
            (v) Judgment reserved on      22/05/10
            (iv) Date of judgment         29/05/10

JUDGMENT

This judgment shall dispose off the case arising out of the FIR No.145/08, P.S. Timar Pur, U/S 498A/304B/34IPC titled as State V/s Vikram Mudgal.

The allegation made against the accused persons are that on S.C. No. 60/1/08 Page1/40 17/03/08 at about 7.55 A.M. at House No.12/1C, Uttaranchal Enclave, Gali No.8 Burari, death of one married women namely Padma W/o Vikram Mudgal occurred under the circumstances other than natural i.e. due to hanging, within 7 years of marriage with Vikram Mudgal i.e on 12/07/07 and it is also alleged that both of the accused namely Vikram Mudgal and his mother Smt. Sharda being husband and mother of husband subjected Smt. Padma with cruelty and harassment for fulfillment of illegal demand of dowry and committed an offence punishable U/S 304B/34 IPC.

The prosecution story according to the statement of PW-4 ASI Gajender Kumar are that on 17/03/08 on receipt of DD No.8, ASI Gajender Kumar along with HC Sukhbir reached at 12/1C Uttaranchal Enclave, Burari . They found the room at ground floor was locked from inside and the side window was opened. They saw that a lady was in hanging condition tied with a chunni of white colour with the ceiling fan. Her name was revealed as Padma. PW-4 ASI Gajender Kumar informed the area SDM, Civil Line regarding the incident and also call crime team, photographers and gave information to the senior police officials also. Then Sh. Kuldeep Kishore SDM reached at the spot and the door of the room was broken. The photograph of the room and of the hanging body were taken from all sides. The body was removed by cutting the chunni from the roof portion and body was brought down on the floor. All the belongings of the deceased like her jewelery articles were removed and seized vide seizure memo Ext. PW-3/A. ASI Gajender Kumar also seized the Chatkani (Latch) of the door vide seizure memo Ext. PW-3/C. The body was sent in the custody of HC S.C. No. 60/1/08 Page2/40 Sukhbir to Sabzi Mandi Mortuary for preserving the same. Next day in the presence of Kuldeep Kishore, Executive Magistrate and other relatives of the deceased, the inquest proceeding papers were prepared and post mortem on the dead body was got conducted. At the request of the relatives of the deceased the dead body was handed over to Vikram Mudgal, husband of the deceased. ASI Gajender Kumar also recorded the statement of identifying the dead body by Tulsi Ram and Vikram Mudgal and the same are Ext. PW- 3/G and PW-3/H. The statement of Tulsi Ram, father of deceased, Sunil brother of the deceased were recorded by Executive Magistrate and he had shown the statements recorded by the executive magistrate to SHO who has directed to got register the case. An FIR No.145/08 u/s 498A/304B/34 IPC was registered and investigation was given to SI Bhupinder Sinch who along with PW-4 ASI Gajender Kumar reached at the spot and on his instance the site plan Ext. PW-4/A was prepared which bears his signatures at Point-A. The accused Vikram Mudgal also came at the spot on 18/03/08. IO after making the inquiry from Vikram Mudgal arrested him vide arrest memo Ext. PW-4/B. The personal search of accused Vikram was conducted vide memo Ext. PW-4/C. The disclosure statement of accused was also recorded which is Ext. PW-4/D. The statement of Sh. Sunil Kumar, brother of the deceased was also recorded by Sh. Kuldeep Kishore, SDM vide Ext. PW-5/A and on the basis of the said statement, the Rukka was prepared and an FIR U/S 498A/304B/34 IPC was prepared.

PW-5 Sh. Sunil Mishra deposed before the court, that on S.C. No. 60/1/08 Page3/40 12/07/07 his sister Padma was married with Vikram Mudgal the accused present in the court today and her mother in law Sharda is also present in the court. The marriage was performed in Delhi from the house of his elder sister Smt. Aruna Sharma PW16 at Uttam Nagar. They have spent sufficient amount as per their capacity in the marriage and had given dowry articles in the marriage. His sister Padma started living with the accused persons at Burari. His sister deceased Padma used to inform him at telephone that she was being harassed by her husband Vikram and her mother in law Sharda and they were demanding Rs.3Lacs from them as Vikram was in debt of Rs.3Lacs. The accused persons also did not permit her to come her house and she came to their house with accused Vikram only once and another time she came to his house alone and stayed there with them for 10 to 12 days and one day when she was talking to Vikram on telephone she started crying and on his inquiry when she started on the speaker phone. He heard that the accused Vikram was abusing her and was threatening her to divorce. His sister was also given beatings and she was tortured by accused persons. His sister Padma did not use to tell them, the complete happenings with her due to fear of the accused as she was threatened and she used to tell that she was being harassed by her in-laws. On 14/03/08 his sister Padma called him on telephone and informed regarding the harassment by the accused persons. On 17/03/08 he received a telephone call from the accused Vikram at 7.45 A.M. and he informed that my sister had hanged herself with the ceiling fan. PW-5 Sunil Mishra after some time tried to rang Vikram from his phone but he did not respond.

Thereafter, he along with his family members reached Delhi at 7.30 P.M. at the house of his elder sister Aruna and thereafter they went to the house of the accused persons. He along with his other family members also met the Police officials who took them to the office of SDM. PW-5 Sunil Mishra's statement was recorded by the SDM which is Ext. PW-5/A. The statement of his father was also recorded by the SDM. The photographs of the marriage of his sister with the accused were also handed over to the police which were seized vide memo Ext. PW-5/B and it bears his signatures at Point-A. The photographs are Ext. PW-5/B1 to B3. The marriage card was also seized by the police vide memo Ext. PW-5/C and the same is Ext. PW- 5/C1. The accused Vikram was arrested vide arrest memo Ext. PW-4/B and his personal search was conducted vide memo Ext. PW-4/C. He has also identified the dead body of deceased Padma vide statement PW-3/G which bears his signatures at Point-B. The dead body was handed over against the receipt Ext. PW-5/D and her last rites were performed at Delhi by accused persons.

PW-10 Tulsi Ram Mishra the father of the deceased Padma also corroborated the deposition of PW-5 Sunil Mishra and allegations made against the accused persons with respect to the demand of Rs.3 Lacs as well as harassment by the accused persons. His statement given to the SDM is Ext. PW-10/A. PW-11 Smt. Kela Devi, W/o Tulsi Ram, mother of the deceased also stated regarding the demand of Rs.3Lacs from her daughter Padma. It is submitted that her daughter informed that she was beaten by the accused S.C. No. 60/1/08 Page5/40 Vikram and her mother Sharda and her daughter was killed by the accused persons by hanging her on account of dowry demand and she was also subjected to harassment by the accused persons for demanding dowry.

PW-13 Smt. Asha Dubey a friend of the deceased Padma, stated that after marriage Padma started living at Delhi at her in-laws house and when she came to Jhansi second time she became very weak and informed that her husband and mother in law Sharda were demanding Rs.3 Lacs as accused persons were under some debt and she was very worried.

PW-16 Smt. Aruna Sharma younger sister of the deceased Padma also stated that her sister used to tell her that accused persons are harassing her on various small issues including demand of dowry. Accused persons were asking for Rs.3Lacs as they were under some debt. The accused Vikram was also asking for a car.

PW-3 Sh. Kuldeep Kishore stated regarding the hanging of one lady i.e. Padma @ Prya with the fan and a Chunni tied around her neck and the other portion of the chunni was tied with the fan. The crime team was called, photographs were taken. The dead body was taken down from the fan after cutting the chunni with the help of the knife and all the belongings of the dead body were taken into possession by the IO after preparing the seizure memo Ext. PW-3/A. The other witnesses are the police officials who has proved the document prepared during the investigation and also deposed regarding preparing of the document and participation in the investigation.

After the completion of the prosecution evidence, the statement of S.C. No. 60/1/08 Page6/40 the accused persons were recorded U/S 313 Cr.P.C. and all the incriminating facts in the evidence led by the prosecution was put to the accused one after another for which were denied with the submission that the witnesses are deposing falsely and they are interested witnesses and it is a false case.

It is further submitted by the accused persons in their statement u/s 313 Cr.P.C that they have been booked in a false case. They never demanded any money or dowry articles from the deceased of her parents or any other relatives of the deceased. They never tortured or maltreated her in any manner nor used abusive language to her in any manner. It is further submitted that Vikram was on his service tour with effect from 10/03/08 up till evening of 17/03/08 and was not present at the time of committing suicide. The deceased also told him that she was not happy with the married life as her parents married her against her wishes and used to said and pressurize him to live her parents house at Jhansi which he refused as his mother h as no one to look after her, after settling at Jhansi as he is the only son. She used to remain in depression and I was keeping quite and used to talk on telephone usually with some one at Jhansi.

Smt. Sharda Devi, mother of the accused also contended that she never demanded any dowry articles or cash from the deceased or her parents or any other relatives of the deceased and she never tortured or maltreated her in any manner or also not used abusive language upon her. There was no loan on their house, the house was built at their own. She has cordial relation with her daughter in law and never had any quarrel with her. It is further submitted that she is innocent and falsely implicated in the case.

In his defence, the accused person examined DW-1 Sh. Kailash Chand Mishra who has stated that the distance from his residence to the temple is about 1Km. He stated that the sister of Padma approached for her younger sister Padma aged about 31years and I gave a proposal of the accused Vikram for the marriage of Padma. The sister of Padma also used to came in the temple and also requested that they can made a simple marriage as do not have so much fund. The mother of Vikram Sharda also used to come in the temple and he got arranged meeting of both the parties and both the parties agreed for the marriage of Padma with Vikram. The marriage was attended by him and there were only 40 to 50 persons who attended the marriage from the side of Vikram and it was a simple marriage. There was not much any specific article was given in the marriage by the family member of the Padma, only household utensils and cloths were given by the parents of Padma to the Vikram. There was no demand of dowry from the accused Vikram and his family members. She did not made any complaint against the accused and his family members and her sister also did not made any complaint against the accused persons. He met to the Padma after 3-4 months of her marriage when she came to her sister house."

DW-2 Dayawati stated that "at the time of incident i.e. on 17/03/08 she was residing at the opposite to the house of the accused persons. They have visiting terms with the accused persons. Vikram's marriage was performed about one year prior to the incident. I did not attend the Barat as my husband was sick but I attended all the ceremonies at their house. It was a simple marriage and there was nothing much was given in S.C. No. 60/1/08 Page8/40 the marriage except the furniture, double bed, utensils, cloths, etc. were given by the parents of the deceased. The deceased was residing with the accused persons in very cordial atmosphere and no quarrel took place between the accused and deceased. The deceased remained usually upset and used to cry and on inquiry from her she replied that her parent married with the accused Vikram without her consent and that is why she remained always upset and unhappy."

On 17/03/08 at about 7.00 A.M. the accused Sharda raised hue and cry and started saying that her daughter in law has committed suicide by hanging herself with the fan. Hearing this, lot of people gathered there and after 10 to 15 minutes police arrived at the spot. It is further submitted that she did not notice that the accused persons have ever been demanded any specific articles from the deceased Padma or from her parents. Accused Vikram had gone to Bombay on 10/03/08 and came back to Delhi on 17/03/08 at night when he was telephonically informed regarding the said incident.

After completion of the defence evidence the matter was fixed for the final arguments. After hearing the arguments of the Ld. Defence Counsels and the Ld. APP for the State and material placed on record.

The Ld. APP for the State submitted that prosecution have examined all the material witnesses including the parents of the deceased and independent witness PW3 Kuldeep Kishore SDM and PW-13 Asha Dubey and all of them with a one voice stated that demand was made from the accused persons for a sum of Rs.3Lacs as the accused Vikram was under S.C. No. 60/1/08 Page9/40

some debt. The PW-5 Sh. Sunil Mishra, PW-10 Tulsi Ram Mishra, PW-11 Kela Devi and PW-16 Aruna Sharma are member of the one family and the deceased Padma is also in their blood relations. They have also made the bald allegations of the harassment, cruelty and demand of Rs.3Lacs by the accused persons.

The deposition of all the prosecution witnesses are believable and trustworthy. All the testimonies are inspiring confidence and on the other hand the defence witnesses does not have consistent and credible statement. Under these circumstances the both the accused persons are liable to be convicted to the charges framed against them.

Per contra the counsel for the accused persons submitted that the marriage was arranged at the instance of Panditji, DW-1 Sh. Kailash Chand Mishra who had categorically stated in his deposition that it was a very simple marriage and there was no demand whatsoever from any corner either from the accused Vikram Mudgal or her mother or any other relative was made to the deceased or her parents. There was no specific article was given in the marriage by the family member of the Padma, only household utensils and cloths were given. The deceased was living happily in her matrimonial house. The deceased or her family member never made any complaint to the accused persons, to the relative or police.

The real facts are that the Vikram Mudgal was on official tour w.e.f. 10/03/08 to 17/03/08. The deceased told him that she is not happy with the married life as her parents married her against her wish and pressurize him to live near her parents house at Jhansi which he every time S.C. No. 60/1/08 Page10/40 refused because his mother has no one to look after her after settling at Jhansi as he is the only son. The deceased remained under depression and she was used to talk on telephone usually with some one at Jhansi.

It is further contended by PW-5 Sh. Sunil Mishra in his cross- examination admitted that there was no complaint till one month after marriage. There was no demand of money was raised by the accused persons at the time of marriage. It is also admitted that her deceased sister had never lodged any complaint either in Delhi or at Jhansi nor deceased Padma was got medically examined regarding her physical assault. They did not came to know as to where and to whom the debt of Rs.3 Lacs was to be given by the accused persons. No money was paid to the accused persons when they demanded. At the time of marriage 40 to 50 thousand Rupees were paid to the accused persons.

PW-10 Tulsi Ram in his deposition stated that his daughter was harassed by the accused persons after the marriage. After the one month of marriage he had came to know that her daughter Padma was not being kept well and accused Vikram and his mother used to beat her. After the 2 - 3 months of marriage he came to know that the accused persons are harassing his daughter. He did not suggest to his daughter for lodging complaint on 17/03/08.

PW-10 Tulshi Ram also stated the demand of Rs.3 Lacs and a car. It has also been stated by PW-16 Aruna Sharma that before two days prior to the death of Padma she had spoken and she was normal and she has not been informed about the incidence of beating by the accused at the S.C. No. 60/1/08 Page11/40 telephone. She heard a demand of dowry and did not made any complaint. In these circumstances, the deposition made by prosecution witnesses is inconsistent, unbelievable, untrustable and does not carry any substance, therefore, both the accused persons are liable to be acquitted.

In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn ;must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.

The demand for dowry or money from the parents of the bride has shown a phenomenal increase in last few years. Cases are frequently coming before the Courts, where the husband or in-laws have gone to the extent of killing the bride if the demand is not met. These crimes are generally committed in complete secrecy inside the house and it becomes very difficult for the prosecution to lead evidence. No member of the family even if he is a witness of the crime, would come forward to depose against another family member. The neighbours, whose evidence may be of some assistance, are generally reluctant to depose in court as they want to keep aloof and do not S.C. No. 60/1/08 Page12/40 want to antagonize a neighborhood family. The parents or other family members of the bride being away from the scene of commission of crime are not in a position to give direct evidence which may inculpate the real accused except regarding the demand of money, dowry and harassment caused to the bride. But, it does not mean that a crime committed on secrecy or inside the house should go unpunished.

If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offfence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstances evidence as noticed above, is insisted upon by the Courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v Director of public prosecution 1944 AC 315-quoted with approval by Arijit Pasayat, J, in State of Punjab v.Karnail Singh (2003) 11 SCC 271) The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that "when any fact is especially within the knowledge of any person, the burden of proving the fact is upon him."

Illustration (b) appended to this section throws some of this provision and it S.C. No. 60/1/08 Page13/40 read: (b) A is charged with traveling on a rail way without ticket. The burden of proving that he had a ticket is on him.

Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led but it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.

The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus legal proof is not necessarily perfect proof; often it is nothing more than a prudent men's estimate as to the probabilities of the case.

The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered to use the words of Lord Mansfield in Blatch v. Archer(1774) I Cowp.63 at p.65 " according to the proof which it was in the power of one side to prove, and in the power of the other to have S.C. No. 60/1/08 Page14/40 contradict" Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.

Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. ON the principle underlying Section 106 of the Evidence Act the burden to establish those facts is cast on the person concerned;and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person and in the result prove him guilty. As pointed our by Best in Law of Evidence, ( 12th Edn. Article 320, page 291) the presumption of innocence is no doubt, presumption juries ; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent ( unexplained) possession of stolen property though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect S.C. No. 60/1/08 Page15/40 of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice.

The aforesaid principle has been approved and followed in Balram Prasad Agrawal v State of Bihar & Ors. AIR 1997 SC 1830 where a married woman had committed suicide on account of ill-treatment meted out to her by her husband and in-laws on account of demand of dowry and being issue less.

The question regarding burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors .(2000) 8 SCC 382. "In this case the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of the accused and took him away at about 2.30 in the night. Next day in the morning his mangled body was found lying in the hospital. The trial Court convicted the accused under Section 364 read with Section 34 IPC and sentenced them to 10 years RI. The accused preferred an appeal against their conviction before the High Court and the State also filed and appeal challenging the acquittal of the accused for murder charge. The accused had not given any explanation. as to what happened to Mahesh after he was abducted by them. The learned Sessions Judge after referring to the law on circumstantial evidence had observed that there was a missing link in the chain of evidence after the deceased was last seen together with the accused persons and the discovery of the dead b;body in the hospital and S.C. No. 60/1/08 Page16/40 had concluded that the prosecution had failed to establish the charge of murder against the accused persons beyond any reasonable doubt."

In the present case SDM PW3 Sh. Kuldeep Kishore on receipt of information from PS Timarpur that one lady had committed suicide on 17.3.2008 and thereafter he visited at H.No. 12/1C, Uttaranchal Enclave, Kamalpur Majra, Burari, Delhi where on ground floor after opening t he door entered in the room and saw that one lady whose name was known as Padma @ Priya was found hanging with the fan and chunni tied around her neck . On 18.3.2008 Sunil Mishra along with Tulsi Ram Mishra and Vikram Mudgal came to his office and got recorded their statement , which is in his hand writing and proved the same vide Ex. PW3/D to F. PW5 Sunil Sharma stated that " My sister Padma used to inform me on Telephone that she was being harassed by her husband Vikram and her Mother -in-law Sharda and they were demanding rupees three lakhs from us as there was debt of Rs. Three lakhs on accused persons. Accused persons also did not permit her to come our house and my sister had come to our house with accused Vikram only ones and another time she came to my house alone and stayed their with us 10/12 days and One day when she was taking to Vikram on telephone she started crying my inquiry when she started the speaker Phone I heard that accused Vikram was abusing her and was threatened her to divorce . my sister was also given beatings and she was tortured by accused persons. My sister did not use to tell us the complete happenings with her, due to fear of the accused as she was S.C. No. 60/1/08 Page17/40 threatened and she used to tell that she was being harassed by her in-laws. On 14.03.2008 my sister Padma had called me on my telephone and informed me regarding her harassment by the accused persons On 17.03.2008 I received a telephone call from accused Vikram at 7.45 AM and he informed me that my sister had hanged her self with the ceiling fan......."

In cross examiantion on behalf of accused, PW5 Sunil Sharma has stated that " when I had visited the house of accused he and his mother had demanded Rs. Three Lakhs from me. No demands of money was raised by accused persons at the time of marriage. When the demand of Rs. Three Lakhs to me then my elder sister Aruna and my mother Kela Devi were present in the house of accused and demand was made in their house.........my sister has not gone to any hospital or visited any nursing home when she was beaten. We had not lodged any complaint her harassment either in Delhi or at Jhansi..."

PW10 Tulshi Ram Sharma i.e father of the deceased also repeated the demand of Rs. 3 lakhs and also came to know the death of her daughter by hanging from, his son Sunil on 17.3.2008 and further stated that death of her daughter was caused due to harassment given to her by accused Vikram and Sharda Devi and his daughter had only once come to his house with her husband after marriage and also came to his house two three time of her own.

PW11 Smt. Kela Devi i.e. mother of the deceased also repeated S.C. No. 60/1/08 Page18/40 made the allegation of demanding of Rs. 3 lakhs by accused Vikram and her daughter has also informed that she was beaten by accused Vikram and her mother in law Sharda. His daughter was killed on account of dowry demand and she was also subjected to harassment by the accused persons for demanding dowry.

In cross examination PW11 Smt. Kela Devi mother of the deceased stated that her daughter had disclosed that accused persons were demanding money and a car and her deceased daughter has also informed about the harassment caused to her on telephone.

PW13 Smt. Asha Dubey the close friend of deceased Padma stated that deceased informed that her husband and her mot her in law Sharda were demanding Rs. 3 lakhs as her husband Vikram was under some debt and she was very worried.

In cross examination she has further repeated that after about one month of marriage Padma told her that her in laws were asking from money and they were demanding Rs. 3 lakhs and a car. The suggestions made by the defence counsel were denied by her.

The contention of the Ld. Counsel is that there was some contradiction regarding the demand of Rs. 3 lakhs as some of the witness stated that there was issued of 3 lakhs and some of the witness stated that there was demand of Rs. 3 lakhs as well as of car. But none of the witness has given any specific date and event as to when the demand was made by them . Nor there is any medical examination of the deceased for treatment regarding the beating and harassment took place either at her parents S.C. No. 60/1/08 Page19/40 house or in the matrimonial house.

PW5 Sunil Sharma in his deposition has stated that he talked to his sister on 14.3.2008 on telephone and deceased informed him regarding harassment caused to her by accused persons. and demand of Rs. 3 lakhs was made in the house of the accused persons in presence of elder sister Aruna Sharma PW16 and Smt Kela Devi mother of the deceased PW11 and all other public witnesses have stated regarding the demand of Rs. 3 lakhs was continued till her last breath. All the witnesses in their examination in chief have stated regarding the said demand and in cross examiantion denied the suggestion made to this effect one by one. However, the evidence as brought on record , there is no ocular prove of the physical and mental harassment in pretext of demand of dowry. There is no complaint was lodged from 12.7.2007 to 17.3.2008. There was a sufficient gape to define the harassment/cruelty soon before the death.

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 concerned woman must have been " soon before her death". Presumption under section 113B is a presumption of law. On proof of the essential mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. Once the prosecution is able to establish the aforesaid ingredients, the presumption against the accused starts as enjoined under section 113B of the Evidence Act. Of course, it is a rebuttable presumption and the onus lies on the accused against whom the S.C. No. 60/1/08 Page20/40 presumption lies to discharge it.

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. Prosecution has to rule out the possibility of 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. 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 on circumstances of each case and no strait jacket 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 bring in the importance of a proximity test both for the proof of an offence of dowry death as well as for rising a presumption under section 113B of the Evidence Act. The expressions ' 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 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 or has received the goods knowing them to be stolen unless he can account S.C. No. 60/1/08 Page21/40 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 concerned cruelty or harassment 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 concerned death.

In case titled as Ramesh Kumar Vs. State (2001( (9) SCC 618 it was held that " Before the presumption may be raised, the foundation thereof must exit. A bare reading of section 113A shows that to attract applicability of section 113A, it must be shown that (i) t he woman has committed suicide (ii) such suicide has been committed within a period of seven years from the date of her marriage (iii) the husband or his relatives, who are charged had subjected her to cruelty. In existence and availability of above said three circumstances shall not, like a formula enable the presumption being drawn; before the presumption may be drawn the court shall have to regard to " all the other circumstances of the case" A consideration of all other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression- " he other circumstances of the case" used in section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the S.C. No. 60/1/08 Page22/40 presumption is not an irrebuttable one . In spite of presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase " may presume" used in section 113A is defined in section 4 of the Evidence Act. From the above, it is clear that certain conditions precedent by way of proved facts should be brought on record before the Courts can draw a presumption under section 113A or 113B of the Evidence Act. Having noticed the requirement of law both under section 304B of the IPC as also under section 113B of the Evidence Act, the court held that 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.

In a case titled as Gurbachan Singh AIR 1990 SC 209 it was observed that " In case of dowry death, husband was convicted of the offence under section 498A, on the basis of testimony of PW7, who deposed that the deceased had told her that her husband demanded a scooter and scolded deceased for not bringing a cot as dowry and had also shown her the injuries and complained that the accused husband had inflicted the injuries on her failure to bring the scooter. The conviction was held proper".

In the present case it revealed that deceased Padma made a call S.C. No. 60/1/08 Page23/40 to PW Sunil Mishra on telephone and informed regarding harassment caused by the accused persons but there is no where stated that the Padma has also told any harassment was in context of Rs. 3 lakhs and car by the accused persons nor specifically mentioned in what manner the accused Vikram Mudgal harassing the deceased and manner in which the accused Sharda harassing the deceased Padma either it was physical harassment or mental torture by making abuse and filthy language in a taunting manner and the statement of accused Vikram Mudgal was also recorded by the SDM on 18.3.08 when the statement of Sunil Mishra, Tulshi Ram was recorded. He stated that there was a minor quarrel on petty matter. Deceased Padama went to her parents house on 27.1.2008 as some of her relative was expired and told that she will came back on 1.2.2008 but she did not turned till 16.2.2008 and came to her matrimonial home on 17.2.2008 along with her brother and mother. They also discussed the material issues in their presence. The accused Vikram Mudgal has gone to the Bombay for his office work on 10.3.2008 till 17.3.2008 he came back at about 9 am on receiving of the call of the death of his wife Padma. Disclosure statement Ex. PW4/B of accused Vikram Mudgal was recorded on 9.5.2008. The disclosure statement of accused Sharda was also recorded simultaneously. The accused Vikram Mudgal in his disclosure statement has disclosed that he has debt of Rs. 3 lakhs and made requested to the family member parent of the deceased to give some loan for the re- payment of debt and in the similar manner the disclosure statement of accused Shardha was recorded.

The husband of the deceased was not present on 17.3.2008 at the place of occurrence and there is no specific date and event regarding demand of 3 lakhs or car. The evidence with respect to this effect remained are only of demand of 3 lakhs and car by the accused persons. However with respect to the harassment or cruelty there was a oral conversation between the parent of deceased with the deceased and her personal visit t o her parents house.

There is no details of call on her phone to Sunil Mishra. The mobile phone of Padma was handed over to his brother by IO but it was not made as case property. There was no inquiry made regarding the demand of loan has to be paid by the accused towards the debt and demand of Rs. 3 lakhs to be payable as covered u/s 498A IPC as unlawful demand. Counsel for accused has also relied upon case titled as Hansraj Sharma & Ors Vs. State Govt of NCT of Delhi 2010(2) JCC 972, where in it was observed that " Demand for dowry 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 articles usually given in a marriage- cannot be said to be connected with marriage for attract penal offence under section 304B.

From the perusal of the deposition of the witnesses it is nowhere stated that demand of Rs. 3 lakhs or car is made as dowry given at the time of marriage was insufficient or there was any condition during the solemnization of the marriage as to where the deceased ha snot brought the S.C. No. 60/1/08 Page25/40 dowry as per desire of the accused persons or the articles brought in the dowry are not up to the quality or standard as desired by the accused persons.

The accused persons to controvert the issue also examined in their defence DW1 Kailash Chand who give the proposal of the accused Vikram for the marriage of Padma and also participated in the marriage and there was only 40-50 persons attended the marriage from the side of Vikram and it was a simple marriage. There was not much any specific article was given in the marriage by the family member of the Padma, only household utensils and clothes were given by the parents of Padma to the Vikram. There was no demand of dowry from the accused Vikran and his family members. She did to made any complaint against the accused persons and his family members. She was living happily in her matrimonial house. Her sister also did not made any complaint against the accused. He met to the Padma after three four months of her marriage when she came to her sister house.

DW2 Smt. Dawawati who is neighbour of the accused has stated that there was no such harassment or cruelty on the person of deceased or any demand of dowry. The accused Vikram had gone to Bombay on 10.3.2008 and came back on 17.3.2008 when he received the information regarding death of Padma. The deceased was residing with the accused person happily and there is cordial atmosphere, no quarrel ever took place between the accused and deceased. The deceased remained usually upset and used to cry and he made inquiry from her, on which she replied S.C. No. 60/1/08 Page26/40 that her parent married with the accused Vikram without her consent and that is why she remained always upset and unhappy. . In the cross examination both the witnesses have denied the suggestion made to them by the Additional Public Prosecution for State.

The FIR does not found mention of any demand of dowry by the accused persons. The postmortem report was proved vide Ex. PW11/A and the death of the deceased was due to hanging with the chunni in her neck and the cause of death was Asphyxia due to Antimortem hanging .

In the case of unnatural death of a married woman as in a case of this nature, the husband could be prosecuted under section 302. Section 304B and section 306 of the Indian Penal Code. T he distinction as regards commission of an offence under one or the other provisions as mentioned herein before came up for consideration before a Division Bench of this court in Satvir Singh and Ors. V. State of Punjab and Anr. (2001) 8 SCC

633. In view of the submissions of Ld. APP for state and Ld. defence counsel and material placed on record, the abatement of suicide is confined to the case of persons who aid and abet the commission of suicide by the hand of the person himself who commits the suicide. When another person, at the request of, or with the consent of, the suicide, had killed that person, he is guilty of homicide by consent, which is one of the forms of culpable homicide. The parameters of 'abatement' have been stated in section 107. Section 107 says that a person abets the doing of a thing, who instigated any person to do that thing or engages with one or more other person or persons S.C. No. 60/1/08 Page27/40 in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy or the person should have intentionally aided any act or illegal omission. The explanation to section 107 says that any willful misrepresentation or willful concealment of a material fact which he is bound to disclose, may also come withing the contours of 'abat ement'.

abatement involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under section 306.

The act of conduct of the accused, however insulting and abusive those may be, will not by themselves be sufficient to constitute abatement of commission of suicide, unless those are reasonably capable of suggesting that the accused intended by such acts consequence of suicide. Even if the words uttered by the accused or his conduct in public are sufficient to demean or humiliate the deceased and even to drive him to suicide, such acts will not amount to instigation or abatement of commission of suicide, unless it is established that the accused intended by his acts, consequence of a suicide. It is not enough if the acts of the accused caused persuasion in the mind of the deceased to commit suicide. It is not what the deceased 'felt' but what the accused 'intended' by his act which is more important in this context. Of course, the deceased's frail psychology which forced her to the suicide also may become relevant, but it is only after establishing the S.C. No. 60/1/08 Page28/40 requisite intention of the accused.

Before invoking the provisions of section 306, it is necessary to establish that the deceased has been subjected to cruelty within the meaning of section 498A IPC. Only in the event those facts are established, a presumption in terms of section 113A of the Evidence Act could be raised. It is immaterial for section 306 whether the cruelty or harassment was caused 'soon before her death' or earlier. If it was caused 'soon after her death' the special provision in section 304 B would be invocable, otherwise resort can be made to section 306 IPC. This view has been taken in case titled as Harjit Singh (2006) 1 SCC 463; Satvir Singh (2001) 8 SCC 633.

The ingredients for abatement for suicide would be satisfied only if the suicide is committed by the deceased due to direct and alarming encouragement/incitement by the accused leaving no option but to commit suicide. Further, as the action of committing suicide is also on account of great disturbance to the psychological imbalance of the deceased such incitement can be divided into two broad categories, one normally where the deceased is having sentimental tie or physical relations with the accused and the second category where the deceased is having relations with the accused in official capacity. In case of second category, the strict interpretation is called for. If on account of any abnormal reaction of an employer, the employee commits suicide, it cannot be said as abatement of incitement to commit suicide unless there is a direct action by the accused leaving no option but to commit suicide.

The mere fact that woman committed suicide within seven years S.C. No. 60/1/08 Page29/40 of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband. The court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. This view also observed in case titled as Hans Raj AIR 2004 SC 2790, 2004 Cri LJ 1759 (SC).

To prove whether the death is due to homicide or suicide, most important evidence is the medical evidence. Where the deceased died due to combined effect of smothering and aspiration of furadan i.e. carbofuran poisoning, it was held that it was a homicide and not a suicide.

In case titled as Nirmala Devi 1983 Cri LJ (NOC) 230 (P&H) wherein it was observed that where the dying declaration categorically stated that the accused maltreated her and taunted her for bringing insufficient dowry owing to which she took the extreme step of burning herself, the conviction was upheld. The earlier positive suggestion by the husband to his wife to commit suicide and later the negative attitude adopted by him in not dissuading her to go ahead with his earlier suggestions to put herself to fire would bring the accused within the mischief of section 306 IPC.

In case titled as State Vs Siddaraju 2000 Cri LJ 4220 (Kar) it was observed that the wife committed suicide shortly after her husband contracted second marriage within two years of earlier marriage. First wife, S.C. No. 60/1/08 Page30/40 deceased, was being ill-treated by her husband and his second wife and she was not even given food. The court convicted the husband for the offence under sections 306 and 498A, holding that the evidence conclusively established a direct nexus between the cruelty and the suicide.

It was held in several cased that such a test is in appropriate circumstances always called for, it has also to be kept in mind that a test of proximity cannot be reduced to a cut and dried formula. From the statement of the witnesses, it was apparent that some cruelty in whatever manner was perpetrated upon the deceased on account of non-payment of a part of the dowry and once it was held that cruelty in any form was present from the accused before the suicide by the deceased within a period of 5 months from the date of her marriage, section 113A of the Evidence Act shifts the burden on the accused to rebut the presumption that the suicide has been abetted by her husband or his relatives.

In order to constitute abatement, the abettor must be shown to have "intentionally" aided the commission of the crime. The word "instigate" used in section 107 IPC, cannot be restricted to use of actual words. It has to be given wider meaning commensurate with common experience of life. When evidence showed that the accused prior to the incident threatened her, forced her to divorce and treated her with cruelty, inference can be drawn from such acts that such cruel conduct of the accused led the wife and provoked her to commit suicide. So he is guilty of abatement of suicide. Similar view was observed in case titled as Ram Kumar Vs State of Madhya Pradesh 1998 Cr LJ 952 (MP).

In view of the aforesaid discussion, facts and circumstances of the case as well as judgment cites, PW5 Sunil Mishra has categorically stated in his deposition that " accused person has beaten the deceased Padma and have also demanded a cash of Rs. 3 Lakhs and car." This fact has also been corroborated by deposition of PW Tulshi Ram, PW Kela Devi, Asha and Aruna and the deceased and the deceased has remained in her parents house on account of untoward behaviour with her by accused persons , as not being adjusted in the family of accused persons. The accused persons have also not taking care of her. Even though on 14.3.2007 a telephone received from the accused Vikram Mudgal and PW Sunil Mishra heard the same and the accused Vikram Mudgal was abusing the deceased Padma and also threatened her to divorce. This cumulative fact instigated the deceased to commit suicide. The post mortem report opined the cause of death. PW3 Kuldeep Kishore SDM recorded the statement of complainant, parents of deceased as well as of accused Vikram Mudgal. The accused persons has made the disclosure statement which is also being corroborated with the deposition of the prosecution witnesses. PW17 SI Bhupinder Singh, Investigating Officer the manner in which he investigated the matter does not found any flaw or any material lacuna in the investigation. The accused in his deposition u/s 313 Cr.P.C denied the allegation and the incriminating evidence led by the prosecution by stating that they are being falsely implicated int his case, but there is no ill will or motive to falsely implicated the accused in this case. PW Asha and the PW SDM Kuldeep Kishore are independent witness. There is no reason to be S.C. No. 60/1/08 Page32/40 falsely implicated the accused persons. The circumstances which has been created by the accused persons by way of physical and mental harassment to the deceased as deposed by the prosecution witnesses, are tantamount to the abatement to commit suicide. The deposition made by the prosecution witnesses are unimpeachable variety and inspired confidence against the accused Vikram Mudgal. There is no material contradiction found in the testimony of the prosecution witnesses. Nor any reason have been given to disbelieve them. There is no reason for falsely implication to the innocent person in this case. There is no cogent rebuttal evidence has been brought on record.

As per the provision of section 103 of Indian Evidence Act, the burden of proof as to any particularly fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. In the case in hand, the accused has simply stated that he has been falsely implicated in this case and he is innocent but there is no evidence to this fact.

Under section 106 of the Indian Evidence Act, the burden of proving fact, when any person is especially within the knowledge of any person, the burden of proving that fact is upon him. In case of dowry death when the occurrence took place in the house of the in-laws, the onus is on the inmates of the house to explain the circumstances leading to her death. The similar view was observed in case titled as Kundula Bala Vs State (1993) 2 SCC 684.

Therefore, in view of the aforesaid discussion, facts and S.C. No. 60/1/08 Page33/40 circumstances as well as the evidence led by the prosecution and the authority as cited above, the testimony of all the prosecution witnesses is unimpeachable, trustworthy, reliable and corroborative against the accused Vikram Mudgal. Their depositions are creditable and inspire confidence. There is no ill will or motive to falsely implicate the accused Vikram Mudgal in this case. The evidence of the prosecution witnesses are corroborative to the medical evidence are conclusive in nature which led to the guilt of the accused Vikram Mudgal beyond reasonable doubt. The prosecution has established its case beyond all reasonable doubt and the circumstances which pointed out the needle of guilt to prove its case against the accused Vikram Mudgal for offence punishable u/s 306 IPC as the accused Vikram Mudgal abetted and instigated the deceased Padma for committing suicide. Therefore, accused Vikram Mudgal S/o Sh. Sudhir Mudgal is hereby convicted for the offence punishable u/s 306 IPC. However, prosecution is unable to prove the guilt against the accused Sharda.

ANNOUNCED IN THE OPEN COURT TODAY ON 29.05.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No. 60/1/08 Page34/40 IN THE COURT OF SH. SATINDER KUMAR GAUTAM, ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.

SC NO. 60/1/08 State Versus Vikram Mudgal S/o Sh. Sudhir Mudgal, R/o H.No. 12/1, G.N. 8C, Uttranchal Enclave, Burari, Delhi.

U/S: 306 IPC P.S. Timar Pur ORDER ON SENTENCE:

Present: Sh. Mukul Kumar, Additional Public Prosecutor for State.

Convicted namely Vikram Mudgul is produced from J/C with counsel Sh. Satish Kumar Sharma.

Sh. Sunil Mishra, brother of deceased in person.

The accused/convicted has been convicted for offence punishable u/s 306 IPC vide separate detailed judgment dated 29.5.2010. .

I have heard submission of Ld. APP for State, brother of deceased in person and counsel for accused on the point of sentence and carefully gone through the material placed on record.

Ld. Additional Public Prosecutor for the State argued on the point of sentence with the contention that the prosecution has succeeded in proving the case against the accused. The prosecution witnesses namely PW5 Sunil Mishra , PW10 Tulsi Ram Mishra, PW11 Smt. Kela Devi , PW13 Smt. Asha Dubey and PW16 Aruna Sharma made direct allegation for cruelty and harassment against the accused/ convicted Vikram Mudgal and also specifically stated that the convicted Vikram Mudgal demanded 3 lakhs and car from the deceased Padma and her parents and it is also contented that it also reveals by PWs that the accused Vikram is guilty of harassing to the deceased on account of aforesaid unlawful demand and abated her to commit suicide , no leniency in sentence deserve by the convicted Vikram Mudgal. The deceased Padma was a young lady and accused had taken a flimsy defence that the deceased was died due to depression which is seems to be concocted and after thought. Under these circumstances the accused is liable for the maximum sentence as provided under the law.

Sunil Mishra, brother of the deceased has also submitted that the accused has committed the offence but he has come to receive the jewelery articles which was seized during the investigation, wear by the deceased Padma.

Ld. Counsel for the convicted submitted that the convicted is having clean antecedent he is innocent and falsely implicated in this case. The convicted have nothing to do with the alleged offence. The deceased S.C. No. 60/1/08 Page36/40 was being died due to the depression which are clear from testimony of defence witnesses. The accused also remained in J/c for more then seven months and having responsibility to look after his old widow mother and kid of his sister who is also living with him. He is only bread earner in his family by doing private job and facing rigor trial regularly for the last two years. As such prayed to release the convicted for undergone imprisonment.

Therefore in view of the submission made by the counsel's, since the evidence against accused is conclusive and consistence. The evidence of the all the aforesaid material witnesses are ocular and trustworthy. It is true that counsel has brought slight discrepancies among their deposition which a obvious error. The discrepancies does not in any way affect the general credibility of the prosecution evidence. All the aforesaid witnesses have categorically stated that the accused has started making demand of Rs. 3 lakhs and car and also harassed the deceased. The behaviors of the convicted was also cruel and he himself disassociated with the company of the deceased and segregated her from the other family members and also did not take care of her.

In a case titled as Dennis Councle MCG Dautha Vs State of California (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess S.C. No. 60/1/08 Page37/40 various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.

In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.

The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.

In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 "It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. 2008 X AD SC 648, in this case, the accused's lustful acts have indelible scar not only physically but also emotionally on the victim. No sympathy or leniency is called for.

The convicted has been punished for the offence punishable u/s 306 IPC , wherein the maximum sentence is awarded to the extent of 10 years and there is no barrier to award a minimum sentence. The fact that the accused is neither a habitual criminal nor does he have any criminal antecedents. The Apex Court observed that it is virtually a matter of shame to civilization that indiscriminate attack and violence are directed against married women for obnoxious and anti social demand of dowry and the accused are let off imposing sentence already undergone without verifying whether the accused has undergone any sentence. However, where the deceased committed suicide as the accused had been harassing and torturing the deceased and she did not want to live in her matrimonial house, but her parents sent her back to her matrimonial house where she never reached and committed suicide near her parents house, the fact that deceased was frustrated at the time of committing suicide was taken as a mitigating factor and considering the case had been pending for last more than five years, sentence of six months imprisonment was held justified as has been observed in a case titled as Ajit Singh 2000 Cri LJ 2370 (HP).

The Apex Court while considering the Conviction of mother in law for the offence of cruelty, considering her age, her sentence was reduced to the period already undergone provided she deposited a sum of Rs. 5,000 in addition to the fine already imposed. The supreme court emphasized that it is the duty of the court to pass appropriate order of sentence and not raising of any argument by counsel for the accused for acquittal is hardly any ground for reduction of sentence in exercise of revisional jurisdiction.

Since the convicted a remained in J/C for about more than seven months having clean antecedents and regularly appearing and facing the rigor trial for the last two years. Therefore, considering all mitigating facts and circumstances of the case, the convicted Vikram Mudgal S/o Sh Sudhir Mudgal is hereby sentenced to the period already undergone by him during investigation, inquiry and trial of this case and also liable to pay fine of Rs. One Lakh, in default of payment of fine the convicted shall under go simple imprisonment for six month u/s 306 IPC. The fine amount of Rs. One Lakh be payable to the legal heir of the deceased as compensation u/s 357 Cr.P.C. I thing the sentence awarded to the convicted will meet the ends of justice.

A copy of this order as well as of judgment be given to the accused free of cost. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT TODAY ON 03.6.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No. 60/1/08 Page40/40