Full Text
HIGH COURT OF DELHI
ROZA BAI & ANR. ..... Appellants
Through: Mohd. Yusuf, Advocate alongwith appellants
Through: Mr. Naresh Kumar Chahar, APP for the State.
JUDGMENT
1. The present appeal has been filed by the appellants under Section 374 of Code of Criminal Procedure, 1973 („Cr.P.C.‟) seeking setting aside of the impugned judgment dated 09.04.2009 and order on sentence dated 21.04.2009 passed by the learned Additional District & Sessions Judge, Patiala House Court, New Delhi, in Sessions Case NO. 20/09 vide which the appellants had been convicted for the offences punishable under Section 498A of the Indian Penal Code, 1860 („IPC‟) and sentenced to undergo rigorous imprisonment for a period of 15 months. The appellants were further sentenced to payment of fine of Rs.4,000/- each and in default of same, to undergo simple imprisonment for six months.
2. The case of prosecution before the learned Trial Court was that a complaint had been received on 26.10.2004 whereby it was informed that one Smt. Rakhi, who had married to Babu on 22.06.2004, had committed suicide by hanging herself from ceiling fan of the room of first floor of her house. The death being unnatural and the deceased having been married recently, the SDM, Kalkaji was informed and investigation was carried out. Statements of witnesses were recorded and FIR for committing offences punishable under Sections 498A/304B/406/34 of IPC was registered. The post-mortem of the deceased was got conducted where the cause of death was opined as asphyxia as a result of ante-mortem hanging. The viscera was preserved to rule out common poisoning, and the exhibits were sent to FSL, Rohini. On completion of investigation, charge-sheet was filed under Section 498A/304B/406/34 of IPC against four accused persons. However, separate charge-sheet had been filed against Babu and Sarita before learned Juvenile Justice Board, Kingsway Camp, Delhi.
3. Vide order dated 28.04.2005, charge for offences punishable under Sections 498A/304B/34 of IPC was framed by learned Trial Court against appellants to which they pleaded not guilty and claimed trial.
4. During course of trial, the prosecution examined 19 witnesses.
5. After perusing the testimony of all the witnesses, learned Trial Court vide detailed judgment was pleased to convict the appellants for the offences punishable under Section 498A of IPC. Vide the same judgment, the appellants were acquitted for the offences punishable under Section 304B of IPC.
6. The operative portion of the findings regarding reasons to convict the appellants under Section 498A of IPC is reproduced as under:
7. Learned counsel for appellants states that there is no legal evidence against appellants to testify the conviction. He also states that there are no allegations regarding harassment, cruelty or torture on account of demand of dowry against appellants and therefore, the conviction is not sustainable under law. It is also stated that there are contradictions in the statement of father of deceased. It is further stated that no demand was ever made by any of the appellants and the discrepancies in the statement of witnesses point out towards innocence of appellants.
8. It was specifically argued by learned counsel for appellants that as per PW[1], the demand of dowry was made by Babu who is husband of deceased whereas as per PW[2] and PW[3], the dowry was demanded by appellant no. 2. It is stated that this fact is not mentioned in FIR and thus, it is a material contradiction overlooked by the learned Trial Court.
9. It is also argued that the learned Trial Court has not appreciated that as per PW[2], when he had gone to bring his sister to the parental home along with his friends, the deceased had informed him about illtreatment at the hands of the in-laws. However, she had not specifically named the appellants either to PW[2] or to SDM or in her statement under Section 161 Cr.P.C. It is also stated that learned Trial Court has failed to appreciate that according to PW[3], the motorcycle was given voluntarily at the time of marriage to the husband of the deceased, therefore, there is no question of demand of motorcycle in marriage. It is also stated that as per PW[4], who was mediator of the marriage, the appellants had pressurized the deceased for transferring the motorcycle and Rs. 10,000/- in the name of the deceased to the name of her husband Babu. However, since Rs. 10,000/- had already been paid by the parents of the deceased, there was no question of demand of it again. It is also stated that one Mr. Anil with whom the deceased was allegedly in relationship with was the actual cause of entire trouble in the marriage of deceased and Babu. It is also stated that according to PW[1] and PW[2], they were not known to Mr. Anil, however, according to PW[3], Mr. Anil was the relative of deceased and the deceased had gone with him for two days, which was in the knowledge of PW[1] and PW[2]. It is also argued that PW[1] and PW[2] themselves had objected to the relationship of deceased with Mr. Anil and had married the deceased with Babu. It is stated that the motorcycle was being used by husband of deceased and, therefore, there was no question of the deceased being pressurized to transfer the motorcycle in his name or transfer of Rs. 10,000/- in the name of accused Babu. It is, therefore, stated that order of conviction under Section 498A of IPC be set aside.
10. Learned APP for the State, on the other hand, argued that there are no major contradictions in the statement of witnesses and the testimonies of all the witnesses, who are material have been consistent with regard to the demand of dowry and harassment of the deceased. Therefore, learned Trial Court has rightly convicted them under Section 498A of IPC.
11. The arguments addressed on behalf of both the sides have been heard. Records of the case have also been perused by this Court.
12. After hearing arguments and having gone through the case file, this Court notes that PW[1] is the father of the deceased who is also the complainant in the present case. PW[1] has categorically stated in his statement that after the cards of marriage were printed, appellant Guljari Lal had told him that his son was demanding a motorcycle and therefore, he should speak to him. Though on the intervention of Shri Ram Prasad, who was co-brother of appellant Guljari Lal, accused Guljari Lal agreed not to insist on demand of motorcycle at the time of marriage, however, when the lagan was being taken to the house of accused, fresh demand for motorcycle was raised by appellant Guljari Lal. PW[1] has further deposed that he had to purchase the motorcycle make Victor. However, Babu demanded motorcycle make Pulsar which he could not afford. However, finally, motorcycle make Victor was given along with other dowry articles. It is also categorically stated by PW[1] that after one week, Babu had insisted that motorcycle be transferred in his name. PW[1] has specifically deposed that deceased had told PW[1] when she had visited her parental home after one month of marriage that Rs. 10,000/- were being demanded by the accused persons. She had also told him on telephone one day that she was being harassed, beaten up and abused by all the accused persons since their demand for Rs. 10,000/- was not met. PW[1] has further specifically deposed in his statement that he had met the accused persons in the hospital at Raghuvir Nagar and had persuaded them not to harass his daughter for demand of Rs. 10,000/- but to no avail.
13. PW[2] who is brother of the deceased has also corroborated the statement of PW[1] and has deposed that few days before the wedding, a demand of motorcycle was made by the accused persons and by that time, the marriage cards had already been printed. He has also specifically deposed that the deceased was being troubled by the accused persons for not fulfilling their demands for Rs. 10,000/- which had been deposited in the name of deceased.
14. PW[3], mother of the deceased had corroborated the statement of PW[1] and PW[2] and has deposed on similar lines regarding demand of motorcycle by accused persons, few days prior to the marriage and regarding harassment to their daughter for payment of Rs. 10,000/-.
15. PW[4], who is the mediator, has also supported the prosecution case and has stated that at the time of fixing of marriage, no demand was raised by accused persons, however, at the time of Sagai demand of motorcycle was made by accused Guljari Lal in his presence. He has also deposed that finally, accused had agreed to being given motorcycle at the time of marriage instead of engagement. He has also deposed that all the accused were pressurising the deceased for transferring the motorcycle in the name of their son and for being given Rs. 10,000/which they were promised to be paid at the time of marriage.
16. The cross-examination of the witnesses was conducted at length, however, no major discrepancy emerged on record. The discrepancy which has been pointed out by learned counsel for the appellants regarding the deceased telling her brother that she was being troubled by her in-laws but she had not specifically mentioned their names, is meritless since she had only the appellants as her in-laws. The brother already knew prior to the marriage itself as to how the accused persons had been troubling them for fulfilment of demand of motorcycle.
17. The arguments of learned counsel for appellants that motorcycle was given by the parents of the deceased themselves at the time of marriage, therefore, there was no question of demand of motorcycle is also without merit. It has specifically emerged in the testimonies of the witnesses that demand for motorcycle had been raised by the appellants prior to marriage and was given under pressure, though they could not afford it. They were able to give motorcycle at the time of marriage though they were being pressurized to give it at the time of engagement. Later on, the deceased was continuously threatened, harassed and troubled, even abused and beaten, since the registration of the motorcycle was not being transferred in the name of the son of the appellants. Therefore, this argument of learned counsel for appellants is of no help to them.
18. The mediator i.e. PW[4] has also corroborated the statement of witnesses regarding demand of motorcycle and the harassment meted out to the deceased after the marriage for transferring the motorcycle and Rs. 10,000/- which were in the name of deceased to the name of son of the appellants. The argument that since Rs. 10,000/- already stood deposited in name of deceased, there was no occasions to trouble or harass the deceased is also devoid of merit since the witnesses have deposed that though under pressure, they had paid Rs. 10,000/- at the time of marriage, and had deposited the same in the name of the deceased.
19. The mediator cannot be termed as an interested witness as he had given a neutral statement as to what had happened in his presence and also what he had been told by the father of the deceased on many occasions. It is clearly mentioned by all the PWs i.e. PW[1], PW[2], PW[3] and PW[4] who were in the knowledge of the incidents since the deceased used to speak to them, categorically and specifically that she was being harassed, beaten and troubled & pressurized for transferring a sum of Rs. 10,000/- from her name to them. Therefore, learned Trial Court committed no error by holding that statements of material witnesses were consistent regarding demand of motorcycle shortly prior to the date of marriage and that the complainant father PW[1] was compelled to give motorcycle make Victor pursuant to the demand made by accused persons. Learned Trial Court also rightly held that the prosecution has been able to establish by consistent testimony of witnesses that a sum of Rs. 10,000/- had been deposited in the name of deceased at the time of marriage which the accused persons were demanding to be handed over to them.
20. Learned counsel for the appellants also argued that allegations which are on record cannot be covered under Section 498A of IPC since there are no clear allegations of harassment. In this regard, it will be useful to discuss Section 498A of IPC to ascertain as to whether the demand by accused persons for the motorcycle as well as transfer of Rs. 10,000/- from the name of the deceased to the accused persons will be covered under Section 498A of IPC or not. “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 pun-ished 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 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.”
21. Clause (b) of explanation of Section 498A of IPC provides that harassment of the woman with a view to coerce her to meet any unlawful demand or property or valuable security would amount to cruelty.
22. In the present case, as discussed in detail in the preceding paragraphs, the prosecution has proved by consistent testimonies of the witnesses i.e. PW[1], PW[2], PW[3] and PW[4] that the deceased was being harassed, abused, beaten and coerced to meet their unlawful demand for being given motorcycle and Rs. 10,000/- and thereafter harassing and troubling her as well as coercing her persistently to transfer the motorcycle and Rs. 10,000/- which were in her name to them. Thus, the same will be covered under clause (b) of explanation to Section 498A of IPC.
23. The argument of learned counsel for appellant that the statement of PW[4] is hearsay evidence and does not even have corroborative value is also of no help to him. PW[4] in his statement stated that he had accompanied Shri Hari Ram to the house of the accused persons when they had demanded motorcycle. They were persistent on their demand and later on PW[4] and father of the deceased PW[1] were finally only able to convince them that motorcycle will be given at the time of marriage and not Sagai/engagement. PW[4] has also categorically stated that in his presence, when he had accompanied PW[1] to the house of the appellants, PW[1] was pressurized to agree to give motorcycle at the time of marriage.
24. The argument of learned counsel for appellants is that the deceased had spoken to her father PW[1] as per his admission in his cross-examination on 18.10.2004 and 20/21.10.2004 before her death and to her sister on 26.10.2004 when she had stated that she was all right at her matrimonial home. Learned counsel for appellants argued that this shows that there was cordial relationship of the appellants and the family of the deceased and the deceased was not harassed. However, this Court notes that the deceased had died within four months of her marriage and she was still making efforts to settle in her matrimonial life. It is not known in what circumstances & in whose presence she was speaking to her family from her matrimonial home on phone. She could not have said anything else except telling them that she was all right since she must have been surrounded by accused persons. It is also of some significance that the testimony of PW[2] who is brother of the deceased, PW[3] mother of the deceased and PW[4] who is mediator remained consistent regarding harassment of the deceased for transfer of Rs. 10,000/- in the name of accused persons & has not been challenged in the cross-examination.
25. The argument regarding the deceased being in relationship with one Mr. Anil and that being the cause for her suicide is without merit as it is stated by PW[3] in her cross examination, that Mr. Anil is her real nephew and thus the first cousin of the deceased. The discrepancy regarding the person named Mr. Anil, known or not known to the PWs, is not of much significance since it has not been proved by defence witnesses themselves that there was any inappropriate relationship between them and she was upset about anything related to him. Statement of DW[2] that deceased had confided in her regarding she having a relationship with Mr. Anil is of no help to the appellants since identity of the said person Mr. Anil was not proved, neither any evidence was on record to even remotely to suggest that she had committed suicide because of him. In any case, the appellants have already been acquitted of the charge for the offence punishable under Section 304B of IPC and this Court is only dealing with allegations regarding harassment due to demand of dowry and this argument is of no help to the appellants. The discrepancies thus, pointed out by learned counsel for appellants are not significant and the learned Trial Court has committed no error while holding so.
26. Therefore, this Court is of the considered opinion that learned Trial Court committed no error in convicting the appellants for committing the offence punishable under Section 498A of IPC.
27. In view thereof, the appellants are directed to deposit the fine imposed vide order on sentence dated 21.04.2009, if not deposited, within a period of fifteen (15) days.
28. Accordingly, the present appeal stands dismissed.
29. The judgment be uploaded on the website forthwith.
SWARANA KANTA SHARMA, J MARCH 06, 2023