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DELHI HIGH COURT
Vipin Sanghi, J.
Sonu Kumar & Ors. —Appellant
versus
State of Delhi —Respondent
Crl.A.No.852 of 2008
Decided on 2.7.2015
Held: In the instant case, no specific instance of harassment has been alleged by either the father of the deceased in his statement before the SDM (Ex.PW 1/A), mother of the deceased in her statement recorded under Section 161 Cr PC (Ex. PW 8/DA), or by the brother of the deceased in his statement before the SDM (Ex. PW 1/B). These statements made by these 3 witnesses primarily pertain to the demand of Rs.30,000/- allegedly made by the Appellants.
Thus, the prosecution has not led any evidence to establish the alleged harassment of the deceased by the accused, much less harassment involving physical or mental torture by positive acts. It has not been established that any specific acts of harassment were resorted to by the accused to persuade or compel the deceased, or her relatives, to meet the unlawful demand of property or valuable security, or that the harassment was actuated by failure of the deceased, or her relatives, to meet the demand. The defence of the accused that the deceased was suffering from tuberculosis and on account of the fact that she was so suffering she was not able to bear a child led her to take her own life, appears to be probable. The prosecution has failed to establish that the demands made by the appellants had a reasonable connection with the death of the deceased. The facts point to the clear possibility of the deceased suffering from a disturbed mental state on account of her suffering from tuberculosis and on account of her not being able to bear a child.
It appears that, though, demand of dowry was made as per the statements of the father, mother and brother of the deceased, but no culpable harassment, per se, has been established by them and thus the un-natural death of the deceased cannot be the consequence of the demand alone.
The cruelty arising from the demand of dowry, so as to attract penal provisions contained in Section 498-A of IPC, should necessarily be willful conduct which is of such a nature, that it is likely to drive a woman to commit suicide, or cause grievous injury or danger to her life or health. Whether the conduct of the accused is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health – physical as well as mental, and how she is likely to perceive such a behavior. There is no evidence brought on record by the prosecution as to how the deceased was harassed to such an extent, that she was driven to take her own life. (Paras 18 & 22 to 24)
Result: Appeal allowed.
JUDGMENT
Vipin Sanghi, J.—This appeal is directed against the judgment dated 15.09.2008, in SC No. 73/2006, arising out of F.I.R. No. 885/05, passed by learned Additional Sessions Judge, Delhi, convicting the Appellants for the offence under Section 498A of Indian Penal Code, 1860 (‘IPC’), and the order on sentence dated 20.09.2008 whereby – for the offence under Section 498A, IPC, the appellants Sonu Kumar (hereinafter referred to as ‘Appellant No.1’), Ashok Kumar (hereinafter referred to as ‘Appellant No.2’) and Suraj (hereinafter referred to as ‘Appellant No.3’) were sentenced to undergo Rigorous Imprisonment (‘RI’) for a period of two and a half years and to pay a fine of Rs. 2000/- and in default of payment of fine, to undergo Simple Imprisonment (‘SI’) for period of four months.
2. The facts taken note of in the impugned judgment are that on 27.12.2005 a report was lodged with the police vide DD No. 50A. Consequently, SI Johnny Anto (PW-12) along with constable Hoshiyar Singh went to the spot at H. No. B-83 Shiv Puri II, Dinpur, Najafgarh, Delhi where they found deceased Seema, wife of Sonu (appellant no.1) lying dead. Police came to know that elder brother of the husband of the deceased Seema, namely Ashok Kumar, appellant no.2 saw the dead body of the deceased Seema tied with the rope and fan and then he raised an alarm and tried to open the room, but the door was closed from inside. In the meantime, neighbour Sukhdev (PW-6) also came there. Ashok and Sukhdev – by breaking the kundi, opened the door and un-roped the dead body and put it on the floor. The police also noticed one ligature mark on the neck of deceased Seema. Crime Team was informed, who took the photographs. Since the marriage of the deceased (Seema) and Appellant No.1 was solemnized on 16.6.2002, and Seema died within 7 years of marriage on 27.12.2005, the matter was brought to the notice of SDM (PW-1). On completion of investigation, the challan was filed against the accused persons.
3. Charges were framed against the accused for offences punishable under Section 498A read with Section 34 and under Section 304B read with Section 34 of the IPC. All the accused pleaded ‘not guilty’ and claimed for trial.
4. The prosecution examined thirteen witnesses in support of its case. They were: PW-1, Sh.V.K.Malhotra (SDM, Najafgarh); PW-2, ASI Shri Sri Nath (Duty Officer); PW-3, Inspector Ajit Singh; PW4, Hardeep Singh; PW-5, Ct. Shri Ajmer Singh; PW-6, Sh. Sukhdev S/o Bagga Singh (Neighbour); PW-7, Sh. Chunni Lal (father of the deaceased); PW-8, Channo Devi w/o Chunni Lal (mother of deaceased); PW-9, Dr. Deepak Mathur; PW-10, Sh. Itwari lal s/o Sh. Chunni Lal (brother of deceased); PW-11 HC Nihal Singh; PW-12 SI Johnny Anto, and; PW-13 Inspector Kailash Chander (Investigating Officer). The statement of the appellants was recorded under Section 313, Cr.P.C. They claimed to be innocent and stated that they were falsely implicated in this case. They further stated that deceased Seema was suffering from TB due to which she was not able to bear any child. This was the reason why she committed suicide. Appellants examined one Sh. Bahadur Singh as DW-1 (appellant No.3 was residing with him since 1979) in support of his defence.
5. The learned trial Court on an analysis of the evidence came to the conclusion that the case against the Appellant, that they had demanded dowry, had been proved by the prosecution beyond reasonable doubt. However, from the testimonies of PW-7, PW-8 and PW-10, the prosecution had not established that the said demand was made “soon before” the death of the deceased Seema. Thus, the appellants were acquitted of the charge under Section 304B IPC. Since, according to the learned ASJ, the demand of dowry had been established, they were convicted under Section 498A read with Section 34 IPC. The relevant extract from the impugned judgment reads as follows:
“In the present case, the complainant the father of the deceased Seema, in the statement before S
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