$~R-1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 1/2004 % Judgment dated 4th February, 2016 SMT. SONIA ..... Appellant Through : Mr. M. L. Yadav with Mr. Lokesh Chandra, Advocates versus STATE OF DELHI ..... Respondent Through : Ms. Aashaa Tiwari, APP for the State with Inspector Ram Kishor, P.S. Shalimar Bagh CORAM: HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL G.S.SISTANI, J. (ORAL)
1. Present appeal arises out of the judgment dated 06.12.2003 and order on sentence dated 10.12.2003 by which the appellant has been convicted under Section 498-A of the Indian Penal Code and sentenced to rigorous imprisonment for one year with fine of Rs.3,000/- and in default further rigorous imprisonment for three months.
2. The facts of this case, as noticed by the Trial Court, are as under:
“2. The brief facts of the case as made out from the record are that deceased was married to accused Deepak Srivastava on 07.12.1996 at 9, Mahila Colony, Delhi-110031 as per Hindu rites and customs. In the marriage, she was given a large number of dowry articles including three kilogram of silver jewellery, 40 tola gold jewellery, a Maruti-car, fridge, colour T.V., V.C.R., household furnitures and several other items. Sh. Roop Kishore Srivastava, father of the deceased spent around Rs.12,50,000/- (Rs.twleve lacs fifty thousand only) in the marriage.
3. For two months, the deceased remained quite well at her matrimonial house. Thereafter accused Deepak Srivastava, Rajinder Srivastava, Veena Srivastava, Jitender Srivastava, Poonam Srivastava and Sonia Srivastava started harassing her for bringing a Maruti 800 car in marriage and taunted her that it was humiliation for them and she ought to have brought „Maruti Esteem car‟ in the marriage. They all started finding fault with other articles brought by her in marriage. They also taunted her that nothing has been given to their relatives by the parents of the deceased.
4. Thereafter father of the deceased gave the accused Rs.10,000/-, Rs.15,000/- and Rs.25,000/- on different dates. On the wedding anniversary of the deceased, her father sent Rs.11,000/-, but accused Rajinder, Jitender and others asked that Rs.51,000/- ought to have been sent. In the marriage of accused Sonia in February 1999, the parents of the deceased sent Rs.15,000/- and one golden ring, but the accused humiliated Sh. Dalip Srivastava brother of deceased stating that they had only one daughter and at least Rs.50,000/- ought to have been sent. The accused would not allow the deceased to speak to her family members nor would they allow her to make a telephone call. The harassment of the deceased continued thereafter. On 23 rd of February 1998, accused Rajinder, Deepak and Jitender along with the deceased came to her parental house and demanded Rs.Two lacs for getting a business started for accused Deepak Srivastava. However, Sh. Roop Kishore Srivastava father of the deceased, expressed his inability to pay such a huge amount, but asked for sometime to pay the same. Thereafter all the accused persons along with Arti returned to her matrimonial house. The demand for Rs.Two lacs continued thereafter.
5. On 29th May 1998, accused Deepak came to her parental house and left her down-stairs asking her to take Rs.Two lacs from her parents. The deceased informed her family members about this demand. In the evening accused Deepak Srivastava came to her parental house and demanded Rs.Two lacs, but the amount was not paid and thereafter accused Deepak Srivastava left the parental house of the deceased leaving her there. The father and brothers of the deceased tried to reason with accused Deepak Srivastava and expressed their inability and also regretted their inability to pay the amount, but to no use. In the evening, they took Arti to her matrimonial house and again tried to assure the accused persons that the amount would be paid, but sought sometime. Accused Deepak Srivastava, Rajinder Srivastava, Veena Srivastava, Jitender Srivastava, and Poonam Srivastava were adamant and stated that by not paying the amount, they had dug a well for the deceased. They left the deceased at her matrimonial house. On 30.05.1998, Sh. Dalip Srivastava brother of the deceased, made a telephonic call at her matrimonial house and he was informed that the deceased was lying unconscious up-stairs. Father of the deceased along with other family members rushed to Shalimar Bagh, matrimonial house of the deceased. Accused Poonam Srivastava and Veena Srivastava were bringing the deceased outside the house. Thereafter she was removed to hospital by her father and brother in their own car, where she expired on the same day. Thereafter the instant case was registered on the complaint of her father Sh. Roop Kishore Srivastava.”
3. At the outset, we may notice that the husband of the deceased, mother-in-
law, father-in-law, brother-in-law and sister-in-law stand convicted under Section 304-B read with Section 498-A of the Indian Penal Code. Separate appeals filed by them are pending.
4. Mr. Yadav, learned counsel for the appellant submits that the judgment of the Trial Court is contrary to law and facts established on record. There is no evidence against the present appellant which would justify her conviction under Section 498-A of the Indian Penal Code. Learned counsel for the appellant has highlighted the fact that in this case, the deceased was married on 07.12.1996 whereas the appellant got married on 01.02.1998. Mr. Yadav submits that four months prior to the incident, the appellant had married and was staying in her matrimonial home and thus there was no occasion for the appellant to harass or demand dowry. It is also contended that she did not have any direct contact with the deceased and even otherwise on careful reading of the entire testimonies of various witnesses would show that except for vague allegations with a view to rope in the entire family the appellant was named. It is submitted that no specific allegation has been made against the appellant that at any stage she had made a specific demand for dowry either from the deceased or her father or brother. Mr. Yadav further contends that soon after the marriage of the deceased, the appellant also got married and thus, there was no occasion for her to make any demand of dowry or to harass her. Counsel contends that the rukka was made on 30.05.1998 on the day of incident itself, which would show that while other family members had repeatedly been named, the name of the appellant figures only at one point that she had taunted the deceased along with other family members as to why a Maruti car had been given instead of a Maruti Esteem car. The Trial Court has discussed the role of this appellant in paragraphs 72 and 80 of the judgment. Counsel submits that the evidence sought to be relied upon by the prosecution is very weak which is not supported by the testimony of any other witness except the immediate family members.
5. Per contra, Ms. Aashaa Tiwari, learned APP for the State submits that a young girl within seven years of marriage was forced to commit suicide in her matrimonial home on account of illegal demands of dowry by the entire family of her husband including the appellant herein. At the time of marriage, the appellant was residing with her parents and she was also part of the family and used to taunt the deceased for bringing insufficient dowry and thus, the Trial Court has rightly convicted the appellant under Section 498-A of the Indian Penal Code and sentenced her to rigorous imprisonment for one year.
6. We have heard the learned counsel for the parties, considered their rival submissions and carefully examined the record of the Trial Court which has been produced before us.
7. As noticed hereinabove, the deceased was married to Deepak Srivastava on 07.12.1996. It is the case of the prosecution that a large number of dowry articles including gold, silver, maruti car, fridge, colour TV and household articles were given in dowry. The father of the deceased claims to have spent Rs.12,50,000/- at the time of marriage of his daughter. The father of the deceased had made a statement to the police soon after the incident wherein he had given a detailed account of the facts that his daughter was being harassed by her in-laws from the very beginning. The names of the family members i.e. husband, father-in-law, mother-in-law and sister-in- law and the appellant herein has also been mentioned as married nanad. Upon reading of the allegations qua the appellant herein is that she had taunted the deceased that why a Maruti car was given instead of a Maruti Esteem along with other family members. The only reason for highlighting this factor is because thereafter there are specific incidents mentioned in the testimonies of the witnesses to show that at different points of time the in-laws of the deceased had tortured or demanded dowry from the deceased and her parents, but while referring to those incidents the name of the appellant has not been mentioned.
8. In the detailed judgment as we have noticed hereinabove, the Trial Court has taken note of the role of the appellant only in paragraphs 72 and 80 of the judgment, which read as under:
“72. In the cross-examination of these witnesses, there is nothing of any significance, which could discredit the evidentiary value of these witnesses. All the four witnesses have corroborated the version of each other on the demands of dowry by the accused persons. As such, after going through the testimony of material witnesses, it can be easily found that names of all the accused persons figure in the evidence regarding the demands raised by them. Moreover, it is also clear that all the six accused persons i.e. Deepak Srivastava, Rajinder Srivastava, Smt. Veena Srivastava, Jitender Srivastava, Poonam Srivastava and Sonia Srivastava were acting in concert as none of them was coming to rescue of the hapless girl, when she was being subjected to cruelty for bringing insufficient dowry or in connection with demands for more dowry. As such, it is clear that all the above mentioned six accused persons played their part in harassing the deceased for bringing insufficient dowry and there is clear and cogent evidence against each accused.
80. It is thus clear that accused Deepak Srivastava, Rajinder Srivastava, Veena Srivastava, Jitender Srivastava, Poonam Srivastava and Sonia Srivastava harassed the deceased for bringing insufficient dowry. The evidence against accused Sonia Srivastava is only to the extent that she harassed the deceased in the earlier days of her marriage and thereafter she was married. However remaining five accused persons i.e. Deepak Srivastava, Rajinder Srivastava, Veena Srivastava, Jitneder Srivstava and Poonam Srivastava continued harassing the deceased till her death for bringing insufficient dowry and their demands were unending.”
9. In Girdhar Shankar Tawade v. State of Maharashtra, reported in 2002 Cri LJ 2814, the Hon’ble Supreme Court held that “cruelty” has to be understood having a specific statutory meaning provided in Section 498A of the Indian Penal Code and there should be a case of continuous state of affairs of torture by one to another.
10. In the case of Smt. Neera Singh Vs. The State (Govt. of NCT of Delhi) and Ors. reported in 138 (2007) DLT152, it was held as under:
“1…..Learned Metropolitan Magistrate, after going through the evidence observed as under:
Perusal of record shows that the allegations of the complainant are against the accused person except the accused husband with respect of taunting for bringing insufficient dowry. But there is not a single allegation that the accused persons made any subsequent demand for dowry and consequent harassment for not meeting with their demands. Admittedly the complainant and her husband and in laws of the complainant were staying at Ghaziabad. Whereas the complainant most of the time resided with her husband at Riwari. It was held in AIR 1996 (Supreme Court) 67 that taunting for not bringing sufficient dowry is distinct from demand of dowry and should not be confused with. Though taunting for bringing insufficient dowry is also an uncivilized act but does not come within the purview of Section 498A, sufficient to constitute the offence i.e. the cruelty to the complainant with respect to not fulfillment of demand of dowry. There is not a single allegation that except for the alleged taunting the complainant was ever harassed with respect to further demand of dowry. Hence the prima facie case under Section 498A is not made out against accused Bishan Pal, Santosh Devi, Gazender Singh and Kaushan Singh.
2. Against this order, the petitioner preferred a revision petition before the Court of Sessions and the learned Sessions Judge after considering the entire material observed as under:
In the present case, husband, Yashwant Singh, after marriage was residing separately from his parent and brothers. He was residing at Rewari, Haryana. The Ld. Trial Court found that allegation of the complainant are against the husband only. There were no specific allegations against the accused persons, namely, Bishan Pal Singh, Smt. Santosh Devi, Gajender Singh and Toshan Singh. The Ld. Trial Court was of the opinion that there was not even a single allegation that the accused persons made any subsequent demand of dowry and harassed the complainant for not fulfilling their demand. The complainant most of the time was residing with her husband at Rewari, Haryana. There might have been one or two instances of taunting for not bringing sufficient dowry but they are not sufficient enough to attract Section 498A. There are not specific allegations with respect toentrustment of dowry items to the accused persons. Since, the complainant stayed with her husband at Rewari, Haryana, the entrustment of dowry articles can be presumed to be to the husband. There were no specific allegations of entrustment to the accused person, namely, Bishan Pal Singh, Smt. Santosh Devi, Gajender Singh and Toshan Singh.
6. I consider that the kinds of vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge. A perusal of the complaint of the petitioner would show that she made all kinds of allegations against her husband regarding beating, that her husband was having illicit relationship with 35 girls; he forced her to write suicide note, abused her, taunted her, threatened and told her that he was getting another bride of more richer family while she was in Rewari with her husband and she made telephone call to her parents who came to Rewari and took her to parental home. She had also given phone to one of her friends Jigyasa. A perusal of the statement of Jigyasa would show that she told Jigyasa that it was her husband who was torturing her and behaving with cruelty. However, in her complaint, she made vague and omnibus allegations against every other family members. The statement made by her and other witnesses have been scrutinized by me, except vague allegations and allegations of taunting, there are no allegations of perpetuating cruelty on her by any of the four respondents in order to compel her to bring more dowry or any particular items.
7. In view of my foregoing discussion, I find no reason to disagree with the order of two Courts below. The petition is hereby dismissed being devoid of merits.
11. In Mohd. Hoshan v. State of A.P. reported in 2002 Cri LJ 4124, the Apex Court while dealing with the similar issue held that mental or physical torture should be “continuously” practiced by the accused on the wife. The Hon’ble court further observed as under:
“Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not.”
12. In Kans Raj v. State of Punjab and others reported in AIR 2000 Supreme Court 2324, the Hon’ble Supreme Court of India noticed the tendency to rope in all the relatives of the in-laws and held as under:
“5. ….. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.
14. …..Proximate and live link between the effect of cruelty based on dowry demand and the consequential death is required to be proved by the prosecution. The demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time which, under the circumstances, be treated as having become stale enough.”
13. In the case of Smt. Raj Rani v. State (Delhi Administration) reported in AIR 2000 SC 3559, the Hon’ble Supreme Court held that while considering the case of cruelty in the context to the provisions of Section 498A of the Indian Penal Code, the court must examine that allegations/accusations must be of a very grave nature and should be proved beyond reasonable doubt.
14. Our view is further fortified by the recent judgment of the Hon’ble Supreme Court rendered in Ramesh Kumar and others vs. State of Tamil Nadu, reported in AIR 2005 SC 1989, wherein their Lordships while quashing the proceeding against sister-in-law who was staying at a different place observed that there were bald allegations to rope in as many relations of the husband.
15. In Sushil Kumar Sharma vs. Union of India and others reported in 2005 (3) R.C.R.(Criminal) 745, wherein their Lordships observed as under:
“18. The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the anomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”
16. In the light of the aforesaid dictum, we observe that the demand of dowry must be clear and specific and a person cannot be convicted merely on the basis of a casual statement, vague and general allegations. The brother of the deceased, PW-1 Dalip Kumar Srivastava, in his testimony has made detailed allegations against the family members, but as far as the appellant is concerned, he has testified “after two months of the marriage, when my deceased sister visited our house, she told that all the above mentioned accused persons, used to tell her that by giving a Maruti car in the marriage, we have insulted them in the marriage. She also told us that we should have given a Sony TV instead of the one of Philips given by us to her. She also told us that the above mentioned accused persons had also been complaining her that the clothes given in the marriage were also of inferior quality and Vimal clothes should have been given. Deceased Arti also told us that the accused persons on account of the said reasons, used to taunt her and that they also used bad words for us also.” Barring this generalised statement, there is no specific allegations against the appellant with regard to harassment or any demand of dowry. The other star witness of the prosecution is PW-2, Roop Kishore Srivastava, father of the deceased in relation to allegations with regard to dowry and torture. In relation to the appellant, the witness has testified as under:
“Accd. persons started saying that they were insulted by giving a maruti car in fact, they should have been given an Esteem Car. They also pointed out that the household articles were also given to them of some inferior company. Nothing was given to their relatives (Bride grooms relative) and thus, they were insulted as claimed by the accd. Party. All these talks were told to me by my daughter when she happened to come to us. Thereafter, I sent money to the accd. Party once I sent Rs.10,000/-, once I sent Rs.15,000/- and I also sent Rs.25,000/- also in order to distribute the money among the relatives of the accd. party. This money was sent through my son Dalip. Thereafter, I sent Rs.11,000/- and sweets on the eve of celebrations of marriage of my daughter after one year (salgiraha). This was also sent to the accd. party by me through my son Dalip Srivastava PW1.”
17. The mother of the deceased, PW-3 Smt. Yashoda has also deposed on similar lines. She has also stated that Deepak and Jatinder used to beat her daughter for no reason. She stated that Poonam and Sonia also used to torture her daughter and wanted that her daughter Aarti should be beaten.
18. In our view, the prosecution has not been able to establish allegations against the appellant herein. There is no evidence against the appellant, allegations against the appellant are only vague and general in nature. In the case of Smt. Rani & Anr. v. The State, 1996, JCC 119, it was held that a taunt for not bringing dowry is quite distinct from demand of dowry. We find the allegations against the appellant very weak, vague and generalised in nature.
19. Accordingly, the impugned judgment is set aside qua the appellant herein.
The appeal is allowed. The bail bonds are cancelled.
G.S.SISTANI, J SANGITA DHINGRA SEHGAL, J FEBRUARY 04, 2016 pst//