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2015 Supreme(Del) 928
HIGH COURT OF DELHI
VIPIN SANGHI, J.
Sonu Kumar & Others - Appellants
Versus
The State of Delhi - Respondent
Crl. A. No. 852 of 2008
Decided On : 02-07-2015
Advocate Appeared:
For the Appellant:S.K. Duggal, Advocate.
For the Respondent:Lovkesh Sawhney, Advocate.
Headnote:
Penal Code, 1860 - Section 498A, 304B, 34 - Delayed FIR - Satisfactorily explained - Delay held immaterial - Delay in registration of the FIR - There was a delay of 32 hours in getting the FIR registered - Delay has not been explained - Police was informed of the incident on 27.12.2005 at about 9:35pm - Statement was recorded by the SDM and subsequently the FIR was registered - As the incident was reported at about 9:05 pm on 27.12.2005, it cannot be said that there was any delay in recording of the statements before the SDM on the next day i.e. 28.12.2005 - Delay of 32 hours in registration of the FIR has been satisfactorily explained by the prosecution.
Penal Code, 1860 - Section 498A, 304B, 34 - Dowry death - Harassment - Cruelty - Acquittal - Prosecution has not led any evidence to establish the alleged harassment of the deceased - No any specific acts of harassment were resorted to by the accused to persuade or compel the deceased - Deceased was suffering from tuberculosis - She was so suffering she was not able to bear a child led her to take her own life, appears to be probable - Prosecution has failed to establish that the demands made by the appellants had a reasonable connection with the death of the deceased - Demand of dowry was made as per the statements of the father, mother and brother of the deceased, but no culpable harassment has been established by them - Un-natural death of the deceased cannot be the consequence of the demand alone - 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 - 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 - Impugned judgment is set aside - Appellants are entitled to the benefit of the doubt and stand acquitted.
1. 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 SDM, Ex.PW1/A has n
