Ajay Kumar vs State of NCT of Delhi

Sunil Gaur, J.—Challenge in the present appeal is to the conviction of the appellant-husband for the offence of ''dowry death''. Vide Judgment and order on sentence of 12th April, 1999 and 19th April, 1999, respectively, appellant- Ajay Kumar has been convicted and sentenced to RI for two years and fine of Rupees two thousand u/s 498-A of the IPC and in default thereof, RI for six months and to a further sentence of RI for ten years with fine of Rupees fifty thousand u/s 304-B of the IPC, and in default thereof, to RI for three years by the court of Sessions. Out of the fine, if realised, sum of Rs. 50,000/- has been given to heirs of deceased by the trial court.

The case of the prosecution is that appellant-Ajay Kumar was married to Anju on 11th November, 1997. He subjected her to cruelty with a view to coerce her for bringing money from her parents and harassed her and that on 1st March, 1998, Anju committed suicide by hanging herself in her parental house.

Prosecution version as unfolded by Inder Sain Jain PW-1 is that a sum of Rupees one lac fifty thousand was spent on the wedding of his daughter- Anju, who after about eight days of her marriage with Ajay Kumar, came to her parental house and complained of being harassed and beaten by her husband (appellant) after consuming liquor, on the pretext that the said marriage was against his wishes and he wanted to marry some other girl named- Kajal, whom he loved and was working in telephone exchange and also of being threatened by him that either he would desert her or would kill her. On the advice of mediator-Preety, Anju went back to her matrimonial house where she was again beaten by Ajay Kumar who demanded Rupees one lac for running a lottery counter. Inder Sain Jain (PW-1) gave a sum of Rupees fifty thousand to Ajay Kumar to fulfil this demand. On 27th February, 1998, Anju came back to her parental house at about 10:00 a.m. and complained of being beaten by her in-laws as they wanted Ajay to marry some other girl. While her mother-in-law had demanded a gold chain for herself and a saree worth Rupees twelve hundred, whereas her father-in-law had demanded a colour TV and fridge. She also stated that she apprehended danger and threat to her life while being in her matrimonial house, so she had escaped from her matrimonial house on the pretext of going for natures call. It is further asserted that on 1st March, 1998, while being in her parental house, Anju hanged herself and committed suicide on account of ill treatment by her in-laws and her husband. Legal action was taken on his statement (EX. PW1/A), which was recorded by the SDM concerned.

Yasbir Singh PW-7, Investigating Officer of this case, on receipt of DD No. 11-A (EX PW6/A), reached at the house of parents of the deceased, where the dead body of Anju was hanging from a ceiling iron rod with a saree. Inquest proceedings (EX PW7/A) were carried out by the SDM and the dead body was sent for post mortem. FIR No. 37 of 1998, u/s 498-A and 304-B r/w Section 34 of the IPC was registered at Police Station Geeta Colony, Delhi and accused persons were arrested in this case.

Trial began as appellant and his co-accused chose to contest charges u/s 304-B/498-A/34 of IPC, framed against them by trial court.

The prosecution, in order to prove its case, got examined six witnesses at trial. Inder Sain Jain PW-1 and Suman PW-2 are the parents of the deceased, PW-4 Mam Chand, is the maternal uncle (mama) of the deceased, Dr. Ashok Jaiswal PW-8 has proved the Medical record (EX. PW8/A) and Sub-Inspector Yasbir Singh PW-7 is the Investigating Officer of this case.

In his statement u/s 313 of the Cr.P.C., the appellant/accused- Ajay Kumar claimed to be innocent and claimed that no dowry or money was demanded and alleged that his wife Anju was murdered by her parents and he had been falsely implicated in this case. Defence witness stated that accused persons were innocent as there was no demand of dowry at the time of the marriage in question and no one had complained to him about any harassment of the deceased on account of any dowry demand and he claims to state so, as he had acted as a Mediator in arranging the marriage in question.

The trial culminated in the conviction of the appellant, not only for the offence of dowry death but also for committing the offence of subjecting the deceased to cruelty.

Learned Counsel for the parties have been heard in this appeal and with their assistance, the evidence on record has been analysed.

In this appeal, the impugned judgment is being questioned by the learned Senior Counsel for the appellant in respect of the nature of offence only and rightly so, in view of the suicide note (EX. P-2). On behalf of the appellant, it has been contended that at best, the offence made out would fall u/s 498-A of the Indian Penal Code only.

The fate of this case primarily rests upon the Suicide Note (Ex. P-2) which is beyond any challenge as it had been recovered from the person of Anju (since deceased) who had died unnatural death in her parental house. The Suicide Note (EX. P-2) reads as under:

Main Anju apni Zindgi se bahut tang aa gai hoon. Mere pati ne, ek ladki ke liye mujhe chod diya hai. Meri zindgi barbad kar di hai. Isliye main aise zindgi nahin zee sakti hoon. Main apni khushi se aatamhatya kar rahi hoon.

Even the parents of the deceased have stated so in their evidence and the trial court has commented upon their evidence in the following words:

It seems to me that these facts were added by this witness on account of psychological hatred which he bore for accused persons, since he thought that the accused persons were accountable for tragic end of his daughter. Same had been the situation of the testimony of Smt. Suman Jain. She had also improved facts on the counts as referred above. Therefore, testimony of Sh. Inder Sain Jain and Smt. Suman Jain on the aforesaid counts are to be discarded.

To convict the appellant/accused for the offence of dowry death, trial court has relied upon the evidence of father (PW-1) of the deceased who has stated in his evidence that the appellant/accused had demanded Rupees one lac from him on 4th or 5th February, 1998 and he had paid Rupees fifty thousand to him on 10th February, 1998. This incident is of 1st March, 1998. The scrutiny of the evidence of the father ( PW-1) reveals that it is neither his case, nor of any other witness that during the period intervening 10th February, 1998 and 1st March, 1998, the deceased was subjected to any cruelty by appellant/accused for having not paid the demanded amount i.e. Rupees fifty thousand. Had the deceased nursed any grievance on account of alleged demand of Rupees one lac by the appellant/accused, then she would have definitely made a mention of it, in her suicide note. No such grievance has been made in the suicide note. Thus, it is crystal clear that the alleged dowry demand was not the cause of the suicide of the deceased. Trial court has fallen into grave error in ignoring the contents of the suicide note (EX. P-2) and by relying upon the evidence of the father of the deceased to convict the appellant/accused for the offence of dowry death. It is so said because it has come in the evidence of father of the deceased that he was running a merchandise shop in the village and he had to borrow handsome amount for installing the lottery counter and he was not an income tax payee since beginning. He has stated in his evidence that he had borrowed the money from one Mukesh (PW-3). For reasons best known, Mukesh (PW-3) appeared before the trial court to depose, but he was given up as unnecessary by the State.

After carefully examining the testimonies of the material witnesses, i.e. of parents of the deceased and the Suicide Note (EX. P-2), I am of the considered opinion that in view of the demeanour of the parents of the deceased as noted by the trial court, it would not be safe to blindly rely upon what father of the deceased had to say about the dowry demand to bring the offence within the sweep of Section 304-B of the IPC. Had there been any harassment of the deceased on account of the dowry demands, certainly it would have found mention in the Suicide Note (EX. P-2). Therefore, without any hesitation, I extend the benefit of doubt to the appellant/accused in respect of the offence of dowry death. However, it remains to be seen as to what offence has been committed by the appellant/accused.

The contents of the Suicide Note (Ex. P-2) as referred to above, makes it abundantly clear that the wife of the appellant/accused was subjected to a mental cruelty as the appellant/accused had left her for another girl and for the hapless wife, there was no other option except to get frustrated by the aforesaid conduct of the appellant accused and out of extreme frustration, wife of the appellant/accused committed suicide. If not the appellant/accused, who else is to be blamed for it.

In my considered view, there remains no doubt that the appellant/accused by his aforesaid conduct, as reflected in the Suicide Note (Ex. P-2), he has abetted the commission of suicide by his wife. It is true that appellant/accused has been charged for a graver offence of dowry death but he can always be convicted for a lesser offence u/s 306 of the IPC.

In the case of Dalbir Singh Vs. State of U.P., , Apex Court has declared that in a given case it is possible to convict the accused for the offence u/s 306 of the IPC, if a charge for the said offence has not been framed against him and the relevant observations made are as under:

Therefore, in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict the accused for an offence for which no charge was framed unless the Court is of the opinion that a failure of justice would in fact occasion. In order to judge whether a failure of justice has been occasioned, it will be relevant to examine whether the accused was aware of the basic ingredients of the offence for which he is being convicted and whether the main facts sought to be established against him were explained to him clearly and whether he got a fair chance to defend himself. We are, therefore, of the opinion that Sangarabonia Sreenu (supra) was not correctly decided as it purports to lay down as a principle of law that where the accused is charged u/s 302 IPC, he cannot be convicted for the offence u/s 306 IPC.

While relying upon the Suicide Note (Ex.P-2), the conviction of the appellant/accused stands altered from the offence u/s 304-B to one u/s 306 of the IPC and the conviction of the appellant/ accused for the offence u/s 498-A of the IPC, is unimpeachable and is hereby maintained. The offence u/s 306 of the IPC does not carry any minimum sentence.

On the question of sentence, it needs to be noticed that at the time of this incident appellant/accused was in his early twenties and as per the Nominal Roll of the appellant/accused, he has remained in custody for a period of nine months. During the course of arguments, it was brought to the notice of this Court that the appellant/accused has faced the agony of trial and appeal proceedings in this case since March, 1998 and in the last decade or so, he has remained on bail and has remarried and is settled in life and has not only a wife and minor child to support, but also to support his old an ailing mother. Reliance has been placed upon a decision reported in 2004 (3) CCC (HC) 181 to contend that in a similar case, for the offence u/s 306 of the IPC custodial sentence of about five months was found to be sufficient and the sentence was reduced to the period already undergone by him. In the instant case also, imposing a hard punishment would not serve any useful purpose and would rather prove to be detrimental. In the peculiar circumstances of this case and in view of the nature of the offence committed by the appellant/accused, the substantive sentence of nine months, already undergone by the appellant, would serve the ends of justice. Resultantly, the conviction of the appellant/accused for the offence u/s 304- B of the IPC is set aside and the appellant/accused is convicted for the offence u/s 306 of the IPC and is sentenced to the period already undergone by him. However, the sentence of fine remains the same i.e. appellant/accused has to pay a fine of Rupees fifty thousand and in the event of his defaulting to pay this fine, he shall have to undergo Simple Imprisonment for one year. During the pendency of this appeal, the sentence imposed upon the appellant was suspended subject to his depositing fifty per cent of the fine imposed. Appellant/accused is granted three weeks time to pay the fine and if he defaults, then he will have to undergo the sentence in default, as stipulated above.

The substantive sentence for the offence u/s 498-A of the IPC is reduced to the period already undergone by the appellant but the sentence of fine is maintained. Trial court be apprised of this order, to ensure its compliance i.e. of disbursement of fine amount of Rupees fifty thousand to the heirs of the deceased.

This appeal is partly allowed to the extent as indicated above.