IN THE COURT OF SHRI AJAY KUMAR KUHAR ADDL. SESSIONS JUDGE02 : SE : SAKET COURT : ND IN RE: ID No. DLSE010001482013 SC No. 1388/16 FIR No.551/13 PS Govindpuri State Versus (1) Mithun S/o Shri Nokhai (2) Nokhai S/o Shri Tirath Nishad (3) Sushila Devi W/o Shri Nokhai All R/o RZ3121, Gali No. 35, Tughlakabad Extension, New Delhi. __________________________________________________________ Date of Institution : 27.11.2013 Date of arguments : 08.11.2017 Date of judgment : 27.11.2017 JUDGMENT
1. The accused have been put to trial for the offences u/s 498 A IPC read with section 34 IPC; 302 IPC read with 34 IPC, 304B SC No. 1388/2016 1 of 30IPC read with 34 IPC and section 406 IPC read with section 34 IPC.
2. The facts of the case, in brief, are that on 04.08.2013, DD No. 6A was noted in the police station Govindpuri regarding the burning of a lady in H. No. 3121, Tughlakabad Extension. SI Rambir along with Ct. Surender had reached the spot where he came to know that the injured Sita has been taken by her husband namely Mithun (accused) to Majeedia Hamdard Hospital. SI Rambir called the crime team for inspection of the spot and picked up one empty plastic cane which was smelling of kerosene and some match sticks which he seized and converted into pulanda by putting his seal of RST on the same. He left Ct. Surender at the spot and reached Majeedia Hospital where he obtained the MLC no. 1003/13 of injured Sita. He was told by the doctors that the injured was having burn injury of 65 78 % and she has been referred to Safdarjung Hospital. SI Rambir obtained exhibits in the sealed pulanda from Hamdard Majeedia Hospital and reached Safdarjung Hospital where the injured Sita was found admitted. Doctors opined the injured as unfit for statement. SI Rambir learnt that the marriage between injured Sita with Mithun (accused) had taken place on 28.04.2010. Therefore, he informed the SDM, Kalkaji. Shri Ajit Kumar Chaudhary, Tehsildar, Kalkaji informed him that as and when the injured Sita becomes fit for statement, he should be informed. On 05.08.2013 at about 6.50 am, SC No. 1388/2016 2 of 30 information was received in the police station Govindpuri vide DD no. 106B that the injured Sita has succumbed to the injuries and has expired. SI Rambir informed the father of the deceased namely Shri Dal Singhar and he along with his son Ram Chander was produced before the SDM office, Kalkaji where Shri Ajit Kumar Chaudhary, Tehsildar had recorded their statement.
3. Shri Dal Singhar, father of deceased Sita gave the statement that deceased was his youngest daughter and she got married with Mithun (accused) son of Nokhai (accused) on 28.04.2010 as per Hindu rites and customs. He stated that he had spent about Rs.1.00 lac on the marriage and had given Rs.7,000/ cash, a cycle, a watch and some other household articles. After the marriage, his daughter came to Delhi with her inlaws. However, after few days, the inlaws started harassing her and she was left at her parental home by them. A settlement took place thereafter and his daughter again came to the matrimonial home. It is stated further that after some time again his daughter was subjected to beating and harassment and they started demanding a motorcycle, chain and Rs.5,000/. He further informed that about four months prior to the incident, his soninlaw namely Mithun had beaten her and had pushed her from the roof. He further informed that his daughter used to tell that she is not provided food and is harassed on account of dowry. He further stated that he had SC No. 1388/2016 3 of 30 received an information from one of his relative in Delhi that his daughter has been burnt by her inlaws.
4. On this statement of Dal Singhar, the FIR was registered for the offences u/s 498A/304/406 read with section 34 IPC. The postmortem of the deceased was got conducted and the cause of death in the postmortem was shown as burn injuries received by the deceased. The crime team which had reached the spot had found it a case of self immolation as per the report submitted by the Incharge, Crime Team dated 04.08.2013. Cause of death is shock as a result of antemortem thermal burn injuries caused due to flames of fire involving about 70% of total body surface area.
5. The articles seized by SI Rambir from the spot were sent to FSL i.e. one empty small brown colour plastic cane, burnt match sticks and partly burnt and torn purpose colour sari, petticoat and a towel and some broken pieces of glass bangles. The FSL report dated 30.04.2014 shows that there was no residue of any kerosene, diesel or petrol on these articles.
6. The chargesheet in this case was filed and since the offences u/s 304B IPC was a Sessions triable offence, the case was committed to the Sessions court for trial. On 21.05.2014, my learned Predecessor framed charges against the accused persons for the offences u/s 498A/302/304B/406/34 IPC. All accused had pleaded SC No. 1388/2016 4 of 30 not guilty to charge and claimed trial.
7. Prosecution in order to prove its case, examined following witnesses : i. PW1 is Dal Singhar. He has deposed that his daughter Sita was married to Mithun. He had spent about Rs.1.00 lac in the marriage. The inlaws of his daughter has started beating her for demand of dowry and she was sent to the parental home. A compromise thereafter took place and she returned back to her matrimonial home. However, his daughter Sita was again beaten by her inlaws with a demand of motorcycle and cash of Rs.5,000/. He also deposed that four months prior to the incident, his soninlaw accused Mithun had pushed his daughter from the roof as a result of which she received injuries. He has proved his complaint made to the SDM, Kalkaji Ex.PW1/B. He has also placed on record the compromise which was entered into between the parties vide Ex.PW1/A.
This witness was not crossexamined by the accused. However, he was summoned again u/s 311 Cr.P.C. on the application of the accused on 07.10.2015. However, it was reported that he has suffered a paralytic attack and has become mentally weak and thus unable to stand on his own legs. Therefore, my learned Predecessor directed on 21.12.2016, not to SC No. 1388/2016 5 of 30 summon this witness considering his medical and physical condition.
ii. PW2 in this case is Ram Chander, brother of deceased Sita. His deposition is on the same lines as that of PW1.
iii. PW3 is Pushpa Devi. She was a neighbour of the accused persons. She has not supported the case of the prosecution and has only deposed that on 04.08.2013 at about 9.30 am, she had helped the accused Mithun to board a TSR, with his wife wrapped in the sari. She deposed that there was a quarrel between the accused persons and the deceased but the matter later on was compromised.
iv. PW4 is Anita. She is the cousin sister of Sita. She has also not supported the case of prosecution.
v. PW5 is Ct. Anita, who had joined the investigation with IO Madan Pal Bhati on 07.08.2013 when the accused Sushila Devi was arrested vide arrest memo Ex.PW1/E.
vi. PW6 is ASI Yadram. He was the Duty Officer on 07.08.2013. He deposed that at 4.15 pm, SI Rambir had produced one rukka, on the basis of which, he registered the FIR Ex.PW6/A and has sent the FIR for investigation to Insp. Madan Pal Bhati. vii.PW7 is HC Satbir Singh, who was the Duty Officer on 04.08.2013. He deposed that at about 10.10 am, he had received SC No. 1388/2016 6 of 30 information regarding burning of a lady which he noted vide DD no. 6 (Ex.PW7/A). He deposed that this DD was assigned to SI Rambir for necessary action. He further deposed that on the same day, he received another telephonic information regarding admission of Sita wife of Mithun in Safdarjung Hospital vide MRD No. 80837/13 with 60% burn injuries, which information he noted vide DD no. 42B (Ex.PW7/B). He also proved DD No. 106B (Ex.PW7/C) with regard to the death of Sita in Safdarjung Hospital.
viii.PW8 is HC Ved Parkash. He was the MHC(M) and deposed that SI Rambir, who had deposited one sealed pulanda with seal of HAH, Centrary Hospital, Jamia Hamdard, New Delhi and another sealed pulanda with the seal of RST, which he deposited in the maalkhana vide entry in Register No. 19 (Ex.PW8/A). He further deposed that on 17.09.2013, the exhibits were sent to FSL through Ct. Hari Mohan.
ix. PW9 is Ct. Surender Singh. He was beat officer in Tughlakabad Extension on 04.08.2013, who had reached the spot after learning that a lady was burnt in H. No. 3121, Gali No. 35, Tkd Extension. He deposed that SI Rambir has also reached the spot, who had seized one plastic cane smelling of kerosene, some broken glass bangles, broken artificial mala, burnt match sticks and empty SC No. 1388/2016 7 of 30 match box.
x. PW10 is Shri Ajit Kumar Chaudhary, Tehsildar, Kalkaji. He had recorded the statement of Dal Singhar and Ram Chander, father and brother of the deceased respectively. He deposed that on 05.08.2013, he was informed about the death of the deceased lady in the hospital and the relatives of deceased came to him on 07.08.2013 and he recorded their statement Ex.PW1/B and Ex.PW2/A. He also asked for the postmortem of the deceased lady vide his letter Ex.PW10/A. He also deposed about the identification on the dead body of the deceased on 08.08.2013 vide identification memos Ex.PW2/B and Ex.PW1/C. He also proved the death report prepared by him as Ex.PW10/B. xi. PW11 is Dr. Mohd. Aftab. He was working in HAHC Hospital, Jamia Hamdard. He deposed that on 04.08.2013, he had examined Ms. Sita (injured/deceased), who had suffered burn injuries and has opined that patient was unable to open the eye and patient was conscious and drowsy. There was a smell of kerosene on her body. He prepared the detailed MLC No. 1003/13 (Ex.PW11/A). xii.PW12 is Insp. K. P. Sah, who was the Incharge of Crime Team which had been visited to H. No. RZ3121, Tughlakabad Extension and examined the place of occurrence between 11.55 am to 12.20 pm. He has proved his report Ex.PW12/A.
SC No. 1388/2016 8 of 30 xiii.PW13 is Insp. Madan Pal Bhati, who was assigned the investigation after the registration of FIR and he arrested accused Nokhai, Mithun and Sushila Devi vide arrest memo Ex.PW1/D, Ex.PW1/E and Ex.PW1/F respectively. He deposed that on 17.09.2013, the exhibits of the case were sent to FSL, Rohini through Ct. Hari Mohan. During the investigation, he took Insp. Mahesh Kumar, Draftsman on 16.10.2013 to the spot where the draftsman prepared the rough notes of the spot at the instance of SI Rambir and thereafter prepared scaled site plan (Mark X1). xiv.PW14 is Dr. Shadab Raheel from Department of Forensic Medicine and Toxicology, Safdarjung Hospital. He deposed that the postmortem report no. 1212/13 dated 08.08.2013 was prepared by Dr. Shabarish Dharampal and Dr. Anshuman Tripathi vide Ex.PW14/A on which he identified their signatures at points A and B as he was familiar with the writing and signatures of these two doctors.
xv.PW15 is W/Ct. Kiran Yadav, who had recorded the call on 04.08.2013 at PCR Control Room, PHQ, New Delhi. The copy of the said call was placed by her on record as Ex.PW15/A. She deposed that this call was received from mobile number 8826462300.
xvi.PW16 is Dr. Amol Dhopte from Safdarjung hospital, who SC No. 1388/2016 9 of 30 deposed that a death report dated 05.08.2013 of Ms. Sita is in the handwriting of Dr. Shabnam with whom he had worked and therefore, was able to identify her signatures. The death report Ex.PW16/A was prepared by Dr. Shabnam with her signature at point A.
xvii.PW17 is Ct. Hari Mohan, who deposed that on 17.09.2013, he was directed by the IO to deposit the exhibits of the case to FSL, Rohini vide RC No. 162/21/13. He deposed that he kept the exhibits in safe custody and there was no tampering with them while they were in his custody.
xviii.PW18 is Dr. Sameer Prabhakar, from Safdarjung Hospital, who deposed that he had examined lady Sita vide MLC No. 14399 and she was having 60% deep thermal burn with facial and inhalation burn. The injuries were dangerous in nature and the patient was intubated and could not speak. He proved the MLC as Ex.PW18/A.
xix.PW19 is Dr. Nikhil S. Shetty from Department of Burns and Plastic Surgery, Safdarjung Hospital. He deposed that on 04.08.2013 at about 1.15 pm, he declared a patient Sita as not fit to give statement. He proved his endorsement Ex.PW19/A. He further deposed that on 05.08.2013, Sita had died at about 1.15 am and he prepared the death summary Ex.PW19/B. The cause of SC No. 1388/2016 10 of 30 death was opined by him as burn shock due to 60% deep thermal burns with facial and inhalation burns.
xx.PW20 is Ct. Puneet, who was a member of the crime team, who had taken the photographs of the place of incident from different angles. He proved the photographs Ex.P1 to Ex.P4 and the negatives Ex.P5.
xxi.PW21 is HC Mahender Singh, who was duty officer and recorded DD No. 106B (Ex.PW7/C).
xxii.PW22 is Insp. Mahesh Kumar, who has prepared and proved the scaled site plan of the spot (Ex.PW22/A).
xxiii.PW23 is Insp. Rambir Singh Tomar. He is the Investigating Officer of the case.
8. The incriminating evidence of the witnesses was explained to the accused persons when they were examined u/s 313 Cr.P.C. The accused Nokhai, who is the fatherinlaw of the deceased stated that the deceased was not subjected to harassment for demand of motorcycle, chain and Rs.5,000/ nor they have misappropriated any dowry articles. He stated that he was not even present at the spot i.e. at the house at the time of alleged offence. Smt. Sushila Devi is the motherinlaw of the deceased. She also took the same defence as taken by her husband. She examined one witness in support of her defence. Accused Mithun also denied that he subjected the deceased SC No. 1388/2016 11 of 30 to harassment and he also said that he was not present at home when Sita sustained injuries.
9. The accused Sushila had examined Ms. Divya as DW1, who deposed that Sushila had been working in her house for about seven years as a domestic help and she used to work from 7.30 am to 6.00 pm. She deposed that on 04.08.2013 i.e. the day of incident, Sushila Devi had come at 7.30 am and was working in her house and she got a call from her home at about 1111.30 am and thereafter she left home.
10. I have heard the arguments from the learned Additional Public Prosecutor for the State and the counsel for the accused persons. The learned defence counsel has also filed written submissions, which I have perused. I have also gone through the evidence on the record carefully and the law applicable to the facts of the case.
11. The learned Public Prosecutor has argued that the evidence with regard to the offence u/s 304B IPC is available in the statement of PW1 and PW2 namely Dal Singhar and Ram Chander i.e. father and brother of the deceased Sita respectively. He placed heavy reliance on the statement of these two witnesses to show that deceased was subjected to demand of dowry and in that connection was also subjected to cruelty and harassment. He submitted that PW SC No. 1388/2016 12 of 30 1 Dal Singhar stated that after the marriage, the inlaws of his daughter has started demanding dowry and a compromise took place vide Ex.PW1/A. He further said that four months prior to the incident, the accused Mithun had thrown her daughter Sita from the roof in which she received injuries. He submitted that statement of PW1 has been corroborated by PW2 in all material aspects. He further submitted that the marriage between the deceased Sita and the accused Mithun had taken place in the year 2010 and the incident has happened in the year 2013. Thus, the death of deceased Sita had taken place within seven years of her marriage and it is not an accidental death nor a natural death. Therefore, the presumption of section 304B IPC and section 113B of Indian Evidence Act will be attracted. He also argued that the MLC Ex.PW18/A and the postmortem report Ex.PW14/A proved the fact that deceased Sita had succumbed to the burn injuries suffered by her. He also argued that PW11 Dr. Mohd. Aftab has also proved that there was smell of kerosene from the body of the deceased. He submitted further that the statement of PW1 was unchallenged and nothing has come in the crossexamination of PW2 to discredit the version of the incident.
12. Per contra, the learned defence counsel has argued that to establish the case u/s 304B IPC, the prosecution had to prove beyond doubt that the deceased was subjected to harassment / cruelty SC No. 1388/2016 13 of 30 on account of demand of dowry “soon before her death”. He argued that PW1 namely Dal Singhar has nowhere spoken about any demand of dowry being made at the time of marriage or thereafter. His statement is too vague and general without any specific incident of a demand for dowry and of subjecting his daughter to any kind of cruelty or harassment in connection with that demand. He submitted that the statement of PW2 would show that he is not a reliable witness because as per his own admission, he is residing in Punjab for the last ten years and he had not visited his sister Sita since she was residing in Delhi with her inlaws. He submitted that statement of PW1 cannot be read in evidence because he was summoned u/s 311 Cr.P.C. for crossexamination but he did not appear. He further argued that PW4 Smt. Anita through whom PW1 came to know about the incident has not supported the case of the prosecution. Similarly, the other public witness has also not supported the prosecution case. He has also argued that there is delay in registration of FIR. He submitted that the death occurred on 05.08.2013 while the FIR was registered on 07.08.2013. He argued that as per prosecution case, PW1 Dal Singhar was informed on 04.08.2013 itself regarding burning of his daughter by PW4 Smt. Anita, who happens to be their relative but they made their statement before the SDM on 07.08.2013. Therefore, he argued, there is unreasonable delay in SC No. 1388/2016 14 of 30 registration of the FIR. He concluded his argument saying that the basic ingredient of the offence u/s 304B IPC or 302 IPC have not been proved on record by the prosecution.
13. The accused have been charged for the offence u/s 302/34 IPC, 304B/34 IPC, 498A/34 IPC and 406/34 IPC. Legally, there cannot be conviction of a person for the offence u/s 302 IPC as well as u/s 304B IPC. Conviction can be under either of these two offences. Therefore, first of all I shall deal with the offence u/s 302IPC, whether it stands proved or not?
14. As per the prosecution case, the first information with regard to the incident was recorded in DD No. 6A (Ex.PW7/A) wherein the burning of a lady was reported. The second information with regard to the incident was received vide DD No. 42B dated 04.08.2013 (Ex.PW9/B) regarding the admission of Sita at Safdarjung Hospital. Third, information is vide DD No. 106B (Ex.PW7/C) that Sita had expired in the hospital. Since the death has occurred in unnatural circumstances within seven years of marriage, information was sent to the SDM for necessary action. On 07.08.2013, the father and brother of the deceased namely Dal Singhar and Ram Chander i.e. PW1 and PW2 respectively came to Delhi and recorded their statement before Shri Ajit Kumar Chaudhary (PW10), Tehsildar, Kalkaji. In this statement, they have SC No. 1388/2016 15 of 30 spoken about the marriage, the dispute between the deceased and her husband and a demand of a cycle and Rs.5,000/ etc. So far during the investigation till the statement of these witnesses were recorded, nothing could be collected to indicate how the deceased got burnt. The prosecution alleges that all the three accused persons are liable for causing death of the deceased but there is no evidence that any of the accused had put the deceased to fire.
15. Section 300 IPC provides punishment for culpable homicide which amounts to murder : Murder.Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or SecondlyIf it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. or Thirdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such SC No. 1388/2016 16 of 30 injury as aforesaid.
However, there are certain exceptions to cases where culpable homicide will not be termed as murder. These exceptions are provided in section 300 which are as under: Exception 1.When culpable homicide is not murder. Culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
Exception 2.Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused.
SC No. 1388/2016 17 of 30 Exception 4.Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.
Exception 5.Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
16. In the present case, there is nothing to indicate even remotely that the accused persons had put the deceased on fire. The presence of the accused Sushila Devi at the house is doubtful in view of the statement of DW1. It is pertinent to mention that the statement of a defence witness cannot be treated with any suspicion or doubt unless and until there are circumstances to indicate so. DW1 has employed Sushila as a domestic help at her house at 218, Narmada Apartments, Alaknanda, New Delhi. She deposed that Sushila had reached at her residence on 04.08.2013 at about 7.30 am and she got a call from her home at about 1111.30 am and thereafter, she left the house. In the crossexamination by the State, nothing could be extracted from her to raise any doubt on her statement that Sushila was working at her residence on the date and time of incident. So the presence of Sushila Devi could not be proved on the record. There is no witness examined by the prosecution which could suggest that SC No. 1388/2016 18 of 30 Sushila Devi was present in the house.
17. Same is with regard to the accused Nokhai. He has deposed that he was not present in house at the time of incident. Although he should have come out with the details as to where he was present at the time of incident but his failure to give such details will not absolve the prosecution to prove his presence at the place of incident on 04.08.2013. Silence of accused is not a substitute for evidence by prosecution. No witness from the neighbourhood had been examined by the IO to prove that the accused Nokhai was also present at the house at the time of incident. PW23 Insp. Rambir Singh Tomar, IO of the case had admitted that he had not examined any independent witness in this case. So far as the presence of the accused Mithun is concerned, the prosecution evidence show that it was accused Mithun, who had brought the injured to the hospital. The prosecution case is that at the time of the visit of SI Rambir Singh Tomar, he had found some burnt matchsticks, some broken bangles and an empty case of matchbox with one empty plastic cane which was smelling of kerosene. If from the presence of these articles like broken bangles, one draw an inference of the presence of accused Mithun at the time of incident it being an indicator of struggle at spot, and a presumption that the accused Mithun had put the deceased on fire, then the subsequent conduct of the accused will restrain the court to draw any SC No. 1388/2016 19 of 30 such presumption. If there was any intention on the part of accused Mithun to cause death of his wife Sita, he would have left his wife unattended in the house. On the contrary, he took the deceased to hospital for the treatment. So any intention to cause death of deceased was absolutely absent in the present case. The other ingredients of the offence u/s 302 IPC i.e. the knowledge etc. will not be attracted in the case because there is no evidence that the accused Mithun had put the deceased on fire. Therefore, I am of the considered view that the offence u/s 302 IPC is not established against the accused persons.
18. Section 304B is based on a presumption that if a death of a woman had taken place by burn or bodily injury or occurs otherwise than under normal circumstances within seven years of marriage, a presumption of dowry death will be raised provided it is established that soon before her death, the said woman had been subjected to cruelty by her husband or any relative of her husband.
19. Section 304B IPC deals with dowry death which reads as follows:
“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 marriage and it is shown that soon before her death she was subjected to cruelty or harassment by SC No. 1388/2016 20 of 30 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 subsection ‘dowry’ shall have 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.”
The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven 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 relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304 B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her SC No. 1388/2016 21 of 30 marriage.
(iii)She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
20. Section 113B of the Evidence Act is also relevant for the case at hand. Section 113B reads as follows: “113B: 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 304B of the Indian Penal Code (45 of 1860).”
21. 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 SC No. 1388/2016 22 of 30 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.
22. 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 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. 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 SC No. 1388/2016 23 of 30 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 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 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 livelink between the effect of cruelty based on dowry demand and the concerned death. If alleged SC No. 1388/2016 24 of 30 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.
23. At this stage, it would be appropriate to look at the provision of section 498A IPC. The law is settled that even if charge under section 304B IPC fails, still a person can be held guilty under section 498A IPC. The accused here in have also been charged for the offence under section 498A IPC. Section 498A reads as follows:
“498A: 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.
Explanation – For the purpose of this section ‘cruelty’ means –
(a) any wilful 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 SC No. 1388/2016 25 of 30 demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
24. The question now before the court is whether the evidence on the record is sufficient to prove that the deceased was subjected to a demand of dowry and subsequently on account of and in connection with said demand of dowry, she was subjected to cruelty or harassment?
25. In the case of Baljeet Singh Vs. State of Haryana AIR 2004 SC 1714, it was observed that the presumption u/s 304B IPC will not be available to the prosecution without it proving the required preliminary facts i.e. the deceased was subjected to cruelty and harassment “soon before her death” and such cruelty and harassment was related to demand of dowry.
26. In another case in Amar Singh Vs. State of Rajasthan AIR 2010 Supreme Court 3391, the Hon’ble Supreme Court was of the view that mere allegation of dowry or harassment will not be sufficient and a mere demand of dowry without any proof of cruelty or harassment for or in connection with any demand of dowry will not be covered u/s 304B IPC or 498A IPC.
27. It means that cruelty and harassment having nexus with the demand of dowry is to be proved on the record before the presumption u/s 113B of Indian Evidence Act and for the offence u/s SC No. 1388/2016 26 of 30 304B IPC can be attracted. Having considered this position of law, I would appreciate the statement of PW1 Dal Singhar and PW2 Ram Chander. The salient aspect of the statement of these two witnesses are that the marriage between the accused Mithun and deceased Sita took place in 2010; that after the marriage, the inlaws of deceased Sita started beating her for demanding dowry; that deceased Sita was sent to her parents home but thereafter a compromise took place; that after the matter was compromised, sometime thereafter, the accused demanded a motorcycle, a chain and Rs.7,000/ and that four months prior to the incident, the accused Mithun allegedly pushed Sita from the roof. The prosecution was relying on the statement of PW3 Pushpa Devi to prove that 23 days prior to 04.08.2013, deceased Sita was beaten by the accused Mithun and she was taunted by her motherinlaw for not knowing how food is prepared. However, PW 3 Pushpa Devi did not support the prosecution in this regard. She simply deposed that on 04.08.2013 at about 9.30 am, she had helped the accused Mithun to put his wife Sita in a TSR, who was wrapped in a sari. PW4 Smt. Anita also did not support the prosecution though through her the prosecution wanted to prove that Sita used to tell her that her husband used to beat her under the influence of liquor. In the crossexamination, she said that she did not speak to Sita for about one and a half year prior to her death though she told SC No. 1388/2016 27 of 30 that she used to hear about the quarrel between the deceased and her inlaws. So the statement of PW3 and PW4 does not even remotely indicate any demand of dowry or any cruelty or harassment on account of said demand. PW1 and PW2 had stated about the demand of dowry but their statements are vague, uncertain and non specific and therefore an implicit reliance cannot be placed on their statement to draw any inference of demand of dowry or consequent act of cruelty or harassment. There is no evidence in the statement of PW1 and PW2 as to when, how and by whom the demand was made and there is no evidence that “soon before her death”, the deceased was subjected to any cruelty on account of dowry demand. The expression “soon before death” has to be considered in the light of surrounding circumstances of the case and this term cannot be put in any time bracket. The incident which PW1 and PW2 talk about that four months prior to the incident, accused Mithun had pushed Sita from the roof is too remote in time to fall under the terminology of soon before death. There is no evidence about this incident, no medical report of deceased in this regard has been collected during investigation nor there is any police complaint of this incident. Moreover, this incident even if accepted to be correct and true, though would amount to harassment or physical cruelty but there is nothing to suggest that this incident was in consequence to demand of SC No. 1388/2016 28 of 30 dowry. Therefore, the ingredients of section 304B will not be attracted on these allegations.
28. The allegations of demand of dowry by the accused persons is not substantiated by the prosecution, rather a compromise placed on record by PW1 as Ex.PW1/A would negate any demand of dowry by the accused persons. This agreement although is a photocopy but has been produced by the prosecution witness during his examination by the prosecution, therefore, it can be read. This document is dated 23.06.2011. The deceased and accused Mithun are signatories of this document amongst others. It refers to certain terms and conditions which were agreed upon between the parties by which they settled their dispute. The terms and conditions of settlement are that whenever the child of Mithun and deceased Sita would be ill, he would be taken to doctor with the knowledge of her motherinlaw and husband. Sita would be provided with necessary expenses and whenever she would like to go to her parents home, she will take necessary permission from her husband and motherinlaw. This compromise letter Ex.PW1/A does not even indicate that the dispute between the deceased and her inlaws was ever related to any demand of dowry or any cruelty or harassment given to her. Had there been any demand of dowry and a consequent harassment and cruelty, there would have been something in this compromise deed with regard to SC No. 1388/2016 29 of 30 the said demand of dowry and cruelty or harassment to the deceased Sita. Moreover, once matter was resolved between parties vide settlement deed Ex.PW1/A, there can not be any presumption of section 113B in absence of subsequent act of cruelty or harassment. (Ref. Kans Raj Vs. State of Punjab AIR 2000 SC 2324).
29. For the above reasons, I am of the considered view that offences under sections 304B IPC and 498A IPC are not proved against the accused persons. So far as section 406 IPC is concerned, there is no evidence of any handing over of any dowry articles to the accused persons and any demand from them to return those dowry articles and they having failed to return those articles to the deceased.
30. Therefore, in view of the above discussion, I have come to conclusion that the prosecution has failed to prove its case against the accused persons for the offences u/s 302/304B/498A/406/34 IPC. Accordingly, all the accused are acquitted of these charges. Accused are in custody, they be released if not required in any other case.
31. They are directed to furnish bail bonds u/s 437A Cr.P.C.
Announced in the open (AJAY KUMAR KUHAR) court today i.e. 27.11.2017 Addl. Sessions Judge02 SouthEast, Saket Courts, New Delhi SC No. 1388/2016 30 of 30