SANJAY KUMAR JAINversusSTATE OF DELHI

              [2010] 14 (ADDL.) S.C.R. 1135


                  ·sANJAY KUMAR JAIN                                A
                             v.
                    STATE OF DELHI
           (Criminal Appeal No. 2400 of 2010)
                  DECEMBER 16, 2010
                                                                    B
   [DALVEER BHANDARI AND H.L. GOKHALE, JJ.]

     Penal Code, 1860 - ss. 3048 and 302 - Murder and
dowry death - Death of married woman within fourteen months
of marriage - Ante mortem bodily injuries on her body -             C
Husband charged ulss. 302 and 3048 - Held: There was no
consistency in the prosecution version with regard offence u/
s. 302 thus, accused cannot be convicted u/s. 302 - The
parents of the deceased however testified that deceased was
subjected to consistent cruelty and harassment by her               D
husband in connection with demand for dowry soon before her
death - Ingredients of s. 3048 having been satisfied,
husband convicted u/s. 3048 and sentenced to 9 years
rigorous imprisonment with fine - Dowry death - Evidence Act,
1872 - s. 1138 - Crime against women.                               E

     The appellant's wife died within the fourteen months
of marriage. The prosecution alleged that the deceased
was being subjected to consistent cruelty and
harassment by the appellant for not bringing sufficient
dowry which continued till her death. The post-mortem               F
report revealed that the deceased bore ten ante-mortem
injuries on her body. PW20, who conducted the post-
mortem, opined that the death was caused due to
asphyxia following strangulation by rope like material and
the injuries were sufficient to cause death in the ordinary         G
course of nature. The appellant was charged u/ss. 302
and 3048 IPC. On basis of the post mortem report and
the evidence of the parents of the deceased, the trial
court convicted the appellant u/s. 302 IPC and sentenced
                            1135                                    H
                                                                '
   1136 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A him to life imprisonment. While convicting the appellant,
  the trial court did not discuss the alternative charge under
  section 304 IPC. The conviction u/s. 302 IPC was upheld
  by the High Court. The High Court also did not deal with
  the charge under section 3048 IPC. Therefore, the
B appellant filed the instant appeal.

       Partly allowing the appeal, the Court

      HELD: 1.1 In a case of circumstantial evidence, all
  circumstances must lead to the conclusion that the
C appellant-accused was the only one who had committed
  the crime and none else. [Para 38] [1154-F-G]

       1.2 There is no consistency in the prosecution
  version on the aspect that the door leading to the house
0 of the deceased had free access and possibility of any
  other person entering the house of the deceased cannot
  be ruled out; that the landlord had clear access to the
  house of the deceased and non-examination of the
  landlord created serious doubt in the prosecution
E version; that the injuries found on the body of the
  appellant-accused remained unexplained and no
  question was put to the accused to explain the alleged
  injuries on the person; that there was a material
  contradiction as to the ornaments which the deceased
  was wearing and were missing from her body; that the
F string and wicket (stump) were not seized by the
  Investigating Officer on the same day as they were lying
  near the dead body; that the string and the wicket (stump)
  were not sent to Central Forensic Science Laboratory
  (CFSL) despite the opinion of the doctor telling the
G circumstances in favour of the accused for being used
  in the alleged crime; and that the string allegedly used
  for strangulating the deceased was 8 % inches in length
  and making it impossible to commit the offence in the
  manner alleged by the prosecution. [Para 39] [1154-G-H;
H 1155-A-F]
     SANJAY KUMAR JAIN v. STATE OF DELHI             1137


     1.3 In view of the infirmities in thu prosecution's     A
version, the conviction under Section 302 IPC cannot be
sustained. The impugned judgment of the High Court and
the judgment of the Additional Sessions Judge are set
aside and the appellant is acquitted as far as his
conviction under Section 302 IPC is concerned. [Para 40]     B
[1155-G-H]

    C. Chenga Reddy and Ors. v. State of Andhra Pradesh
(1996) 10 SCC 193; G. Parshwanath v. State of Kamataka
(2010) 8 SCC 593; Varun Choudhary v. State of Rajasthan      C
JT 2010 (11) SC 419; Ajay Singh v. State of Maharashtra
2007 (12) sec 341 - referred to.

    2.1 In the instant case, though the appellant was also
charged under Section 3048, but in view of his
conviction under Section 302 IPC, the trial court did not    D
proceed with the charge under Section 3048 IPC. [Para
41] [1156-A-8]

     2.2 The marriage took place on 20.02.1990 and the
appellant's wife died on 10.4.1991 because of ten ante       E
morlem bodily injuries which were found on her body at
the time of her death. PW 2-father of the deceased and
PW 3-mother of the deceased were examined. They
categorically stated that the deceased was subjected to
consistent cruelty and harassment by her husband in
                                                             F
connection with demand for dowry. PW2 deposed that on
demand from the appellant, he was given Rs.15,000/- on
one occasion and later gave Rs.10,000/-. According to
him, there was consistent harassment on account of
demand for dowry all through. P.W.3 stated that the
appellant used to harass and beat her daughter in            G
connection with the demand of dowry. Thus, the
appellant's continuously harassing and beating the
deceased in connection with demand of dowry clearly
falls within the four corners of the Section 3048 IPC.
[Para 42] [1156-G-H; 1157-A-8]                               H
    1138 SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.


A        Ashok Kumar v. State of Rajasthan (1991) 1 SCC 166 -
    referred to.

       2.3 A proper analysis of Section 3048 IPC and
  Section 1138 of the Evidence Act, would show that there
B must be material to show that soon before her death the
  victim was subjected to cruelty or harassment. The
  prosecution is under an obligation to rule out any
  possibility of natural or accidental death. Where the
  ingredients of Section 3048 IPC are satisfied, the Section
C would apply. If death is unnatural, either homicidal or
  suicidal, it would be death which can be said to have
  taken place in unnatural circumstances and the
  provisions of Section 3048 would be applicable. The
  death, otherwise than under normal circumstances,
  under Section 3048 IPC would mean the death not in
D usual course, either natural or accidental death. [Paras
  48 and 49] [1159-C-E]

         The State of Punjab v. Iqbal Singh and Ors. (1991) 3 SCC
    1 - referred to.
E
       2.4 The evidence on record of the case clearly lead
  to the conclusion that all the three ingredients necessary
  in order to bring home the guilty under Section 3048 IPC
  are available in full measure in the instant case. The
  deceased was subjected to cruelty and harassment by
F the appellant-husband and the harassment was in
  connection with the demand of dowry. The victim
  (deceased) died within one year and two months of the
  marriage. On proper analysis of the entire evidence on
  record, it is abundantly proved that the appellant was
G clearly guilty of committing an offence under, Section
  3048 IPC. [Paras 51 and 52] [1160-8-C]

       3. The conviction of the appellant under Section 302
  IPC is set aside, but, in the facts and circumstances of
H the instant case, the appellant is convicted under Section
      SANJAY KUMAR JAIN v. STATE OF DELHI                  1139


3048 IPC and sentenced to 9 years rigorous                         A
imprisonment with fine of Rs.10,000/-. (Para 53) [1160-D-
E]
                      Case Law Reference:
     (1996) 10 sec 193           Referred to          Para 15      B
     (201 O) s sec 593           Referred to          Para 16
     JT 2010 (11) SC 419         Referred to          Para 17
     2001 (12) sec 341           Referred to          Para 25
                                                                   c
     (1991) 1 sec 166            Referred to          Para 45
     (1991) 3 sec 1              Referred to          Para 47

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 2400 of 2010.                                                  D

    From the Judgment & Order dated 12.11.2009 of the High
Court of Delhi at New Delhi in Criminal Appeal No. 63of1997.

    U.N. Bachawat, Alok Bachawat, Hara Prasad Sahu,
Sankalp Kashyap, K.V. Bharathi Upadhyaya for the Appellant.        E

   P.P. Malhotra, ASG J.S. Attri, Anjani Aiyagari, Chetan·
Chawla, Gaurav Sharma, Anil Katiyar for the Respondent.

     The Judgment of the Court was delivered by                    F
     DALVEER BHANDARI, J. 1. Leave granted.

    2. This appeal arises out of the judgment and order of the
High Court of Delhi passed in Criminal Appeal No.63 of 1997
dated 12.11.2009.                                                  G

     3. The brief facts giving rise to this appeal are as under:

     The appellant Sanjay Kumar Jain was married to Smt. Anju
Jain (since deceased) on 20th February, 1990. After marriage,
                                                                   H
    1140 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A only both of them started residing at house No.2803, Gali No.6,
  Chander Puri, Kailash Nagar, Delhi. It is the case of the
  prosecution that the deceased was harassed for insufficient
  dowry and the harassment continued till her death. Admittedly,
  Smt. Anju Jain died within one year and two months of marriage
B on 10.4.1991.

        4. A call was received from one Nanak Chand, P.W.1 on
  10.4.1991 at 8.50 p.m. at the police control room about the
  murder of the deceased and accordingly DD Entry No.11 A was
  recorded. On reaching the spot, the police found Sub-Inspector
C Budh Sain along with police staff was already present there. A
  bunch of keys was provided by neighbour Sadhna PW8 and
  one of the keys fitted the lock and after opening the door, they
  climbed to the first floor where the appellant and the deceased
  resided. The dead body of the deceased was found lying on
D the floor. At the scene of the crime, broken bangles were found
  lying on the floor and a hair strand was also found on the chest
  of the deceased. Rukka was sent by making endorsement on
  the DD to the police station and on this basis FIR No.83of1991
  was registered. The inquest proceedings were conducted
E through the area Sub-Divisional Magistrate and the spot was
  photographed whereafter the body of the deceased was sent
  for post-mortem.
    ~




       5. Dr. L.K. Barua, P.W. 20 who conducted the post-mortem
F found ten ante-mortem injuries on the body of the deceased and
  the cause of the death was opined as asphyxia following
  strangulation by rope like material and the injuries were
  sufficient to cause death in the ordinary course of nature.

       6. The parents of the deceased Mohan Lal, P.W. 2 (father)
G and Raj Bala, P.W. 3 (mother) were examined and in their
  statements it was clearly stated that the deceased was
  continuously being harassed on account of insufficient dowry.

        7. Mohan Lal, P.W.2 in his statement clearly stated that:
H
     SANJAY KUMAR JAIN v. STATE OF DELHI                 1141
           [DALVEER BHANDARI, J.]

    "On the demand of accused, I paid a sum of Rs.15,000/-       A
    at one time and Rs.10,000/- another time after about 617
    months of marriage of my daughter with the accused. The
    accused demanded the said amount as he started tent
    business."
                                                                 B
    He further stated that:

    "The accused again started harassing my daughter and
    used to compel her to bring money from her parents. My
    daughter had told the said facts to me."
                                                                 c
    In the cross-examination, Mohan Lal, P.W.2 also stated
    that:

    "I had given the amount of Rs.10,000/- and Rs.15,000/- to
    the accused out of my saving which was lying in my house
                                                                 0
    and also by taking some amount from my friends."

    In the cross-examination, he further stated that:

    "My daughter had met me in my house about 1 or 1~
    months prior to her death. Even at that time she told me     E
    that the accused used to harass her and she was perturbed
    and she told me that she was hard of money and the
    accused had again demanded money from her. She did
    not tell the particular amount which the accused had
    demanded."
                                                                 F
     8. Similarly, Raj Bala, P.W.3, the mother of the deceased
also clearly stated in the statement that:

    "Deceased Anju was my daughter and she was married
    with the accused on 20.2.90. My daughter used to tell us     G
    that accused Sanjay used to harass her because of
    insufficient dowry. She also used to tell us that accused
    used to give her a beating and that the accused used to
    demand money. The accused demanded a sum of
    Rs.50,000/- but my husband had paid Rs.25,000/- to the       H
    1142 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A       accused once after 14 months of marriage of my
        daughter."

         9. It is abundantly clear from the statements of P.W.2 and
    P.W.3 that the deceased was harassed on account of dowry
    right from the point of marriage till her death.
8
       10. The appellant was charged under sections 302 and
  3048 of the Indian Penal Code. The trial court held that the
  charge under section 302 IPC was established against the
  accused, therefore, there was no necessity to discuss the next
C alternative charge under section 3048 IPC. In the impugned
  judgment, the High Court also did not deal with the charge under
  section 3048 IPC. The trial court on the basis of evidence and
  other material on record found the appellant guilty under
  Section 302 IPC. He was convicted and was awarded life
D imprisonment. The conviction was upheld by the High Court.
  The appellant aggrieved by the impugned judgment of the High
  Court has preferred this appeal

       11. We have heard the learned counsel for the parties at
E length.

         12. Mr. U.N. 8achawat, learned senior counsel, who
    appeared on behalf of the accused/appellant submitted that in
    this case the prosecution has failed to establish the motive for
    committing the crime.
F
        13. He submitted that it is well settled law that in a case
  of circumstantial evidence, the circumstances from which the
  conclusion of guilt is to be drawn should in the first instance be
  fully established and all the facts so established should be
G consistent only with the hypothesis of the guilt of the accused.
  Again the circumstances should be of a conclusive nature and
  they should be such as to exclude every hypothesis but the one
  proposed to be proved. In other words there should be a
  complete chain of evidence so far complete as not to leave any
H reasonable ground for a conclusion consistent with the
     SANJAY KUMAR JAIN v. STATE OF DELHI                    1143
           [DALVEER BHANDARI, J.]

innocence of the accused and it must be such as to show that         A '
within human probability the act must have been done by the
accused. Mr. Bachawat submitted that motive to commit crime
acquires greater significance in a case based entirely on
circumstantial evidence. The prosecution in this case has failed
to establish the motive, therefore, the courts have to be            B
extremely careful in convicting an accused in a case of
circumstantial evidence without any motive.

     14. Mr. Bachawat also submitted that apart from the fact
that there is no eye witness in this case, there is also no
scientific evidence to connect the accused with the crime. The       C
prosecution failed to establish the motive behind the
commission of the offence of murder of the deceased.

     15. This court in the case of C. Chenga Reddy and Others
v. State of Andhra Pradesh (1996) 10 SCC 193 held as under:          D

          "In a case based on circumstantial evidence, the
    settled law is that the circumstances from which the
    conclusion of guilt is drawn should be fully proved and such
    circumstances must be conclusive in nature. Moreover, all
                                                                     E
    the circumstances should be complete and there should
    be no gap left in the chain of evidence. Further, the proved
    circumstances must be consistent only with the hypothesis
    of the guilt of the accused and totally inconsistent with his
    innocence .......... "
                                                                     F
     16. In the case of G. Parshwanath v. State of Karnataka
(201 O) 8 sec 593 this court has observed as under:

           "In deciding the sufficiency of the circumstantial
     evidence for the purpose of conviction, the court has to        G
     consider the total cumulative effect of all the proved facts,
     each one of which reinforces the conclusion of guilt and if
     the combined effect of all these facts taken together is
     conclusive in establishing the guilt of the accused, the
     conviction would be justified even though it may be that one
                                                                     H
    1144 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A       or more of these facts by itself or themselves is/are not
        decisive. The facts established should be consistent only
        with the hypothesis of the guilt of the accused and should
        exclude every hypothesis except the one sought to be
        proved .......... There must be a chain of evidence so
B       complete as not to leave any reasonable ground for the
        conclusion consistent with the innocence of the accused
        and must show that in all human probability the act must
        have been done by the accused, where various links in
        chain are in themselves complete, then the false plea or
c       false defence may be called into aid only to lend
        assurance to the court."

        17. Both the above cases were followed in the latest case
    in Varun Choudhary v. State of Rajasthan JT 2010 (11) SC
    419 para 23.
D
         18. Mr. Bachawat further submitted that the prosecution
    examined a neighbour Sadhna, P.W.8 who stated that the
    accused and the deceased lived happily. The relevant part of
    the statement reads as under:
E
        "I know the accused for the last about 12/13 years. Anju
        used to come to my house sometimes. I have never seen
        any quarrel between the accused and the deceased. I have
        always seen them living merrily."

F        19. Mr. Bachawat also contended that according to the
    testimony of Mohan Lal, P.W. 2, it is abundantly clear that the
    said demand cannot be termed as dowry demand as the said
    amount was paid for the business purpose.

G      20. Learned seriior counsel for the appellant submitted that
  the accused appellant along with his wife was living on the first
  floor of the house No.2803, Kailash Nagar, Delhi as a tenant.
  The house had three doors on the ground floor, out of which
  one door which leads to staircase was in possession of the
H appellant. The other two doors were meant for the landlord
      SANJAY KUMAR JAIN v. STATE OF DELHI                     1145
            [DALVEER BHANDARI, J.]     •

which were undi=r th~ lock and key of the landlord. From one           A
door out of these two doors, which were under the occupation
of the landlord, any one could have an access to the first floor
i.e. the tenanted premises whereas the case of the prosecution
was that the door was locked and had to be opened by the
police after getting report from Nanak Chand, P.W.1.                   B

     21. Mr. Bachawat referred to the statement of Sadhna,
P.W. 8 in which she stated that there was no lock on the door
of the staircase. However, two locks were found affixed on the
two doors of the ground floor of the house. The door of the            C
staircase which was in possession of the accused appellant
was found bolte·d from inside. Sadhna P.W.8, stated as under:

     "I had given bunch of keys to brother of Sanjay and one
     key out of the said bunch was operative on the lock fixed
     on the ground floor door. Due to which ground floor door          D
     was opened. Other way also leading to the first floor of the
     house. In fact, the door of the staircase meant for the
     accused was in the street, which was locked and the other
     way to the said staircase was in the room at ground floor
     which was in possession of the landlord. So we went               E
     upstairs after opening the lock of ground floor as stated
     by me earlier through the way. There we found Anju lying
     dead. Several persons had collected there. The key which
     was in my bunch and with which the said lock was opened
     was not of the said lock. It was operative by chance. I had       F
     taken back my said key thereafter from Baldev."

     22. According fo Mr. Bachawat there is major contradiction
as regard to two doors which were under occupation and use
of the landlord. As per the site plan, one door, i.e., the door from
the gallery was bolted from inside whereas, according to               G
Sadhna, P.W. 8, both the doors which were in the occupation
and use of the landlord had locks on them. Mr. Bachawat
referred to the following observation of the High Court:

     "If the scene of the crime is carefully analysed, it is obvious   H   ,
         1146 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.
                    •
     A       that there was no get-away passage for a third person to
             have committed the crime and disappear lrom the scene.
             The main access was found locked for which the key was
             provided by the appellant. The other access through the
             staircase was found bolted from inside. Thus the appellant
     B       alone had an access to the place of occurrence, which
             factor itself is sufficient to prove his guilt."

           23. According to the learned counsel for the appellant, the
       above observations of the High Court are contrary to the
     C evidence on record for the following reasons:-

              A.    The prosecution has miserably failed to prove as
                    to which of the three doors was allegedly opened
                    by the key provided by the accused:-

     D               i.    it is clear from the statement of PW8 that the
                           door i.e. the main access meant for the
                           accused was bolted from inside and was not
                           locked from outside therefore this door
                           cannot be the door which was opened with
                           the key provided by the accused as held by
     E
                           the High Court.

                     ii.   It is further clear from the statement of
-I                         Sadhna PW8, that on 10.4.91 she had given
                           a bunch of keys to Baldev, PW12 i.e. the
     F                     brother of accused and one key out of said
                           bunch was operative on the lock fixed on the
                           ground floor door due to which ground floor
                           door was opened and they went on the first
                           floor. Probably this door was the one which
     G                     lead to the gallery and then to the first floor.
                           Thereafter this witness had taken back the
                           said bunch from Baldev, PW12. Therefore,
                           when this door was already opened on
                           10.4.91 and there is no evidence that on the
     H                     same lock was put back, either the door
SANJAY KUMAR JAIN v. STATE OF DELHI                     1147
      [DALVEER BHANDARI, J.]

               would have been left unlocked or would have      A
               been locked by the police by putting some
               other lock, giving no occasion for the
               accused to apply the alleged key on the lock
               on 13th. Thereafter, this door also cannot be
               the one which was opened with the key            B
               provided by the accused.

        iii.     That the third door was the door of the room
                 under the lock and key of the landlord and
               · from there was no access to the first floor,
                 therefore, this door also could not be the
                                                                c
                 door which was opened with the key
                 provided by the accused.

B.      That from the statement of Sadhna PW8 it is
        abundantly clear that Sadhna PW8 also had an            D
        access to the house in as much as the lock was
        opened by a key provided by Sadhna, which
        worked by chance. This fact goes to show that the
        lock was such that it could be opened by any key
        and therefore anybody could have a free access to       E
        the house after opening the lock with the same key.

C.      That from the statement of Sadhna PW8 it is also
        evident that the landlord also had the access to the
        other two rooms, which were locked from outside.
        Rather the lock on the two doors were that of the       F
        landlord and he was in possession. In view of the
        above stated facts the landlord was a very material
        witness and his non-examination creates a serious
        dent in the prosecution case. There is no
        explanation or attempt on behalf of prosecution to      G
 . ;t
        show as to why the landlord was not produced and
        examined.

D.      As per site plan Ex. PW22/B the room on the first
        floor, where the deceased was found dead, had two       H
    1148 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A              windows one bolted from inside and the other
               window i.e. W2 was open and it opened on Chajja,
               therefore giving an easy access to a stranger. The
               important aspect has not been noted and
               considered by the Id. trial court and the High Court.
B
         E.    It is alleged that on 13th the appellant opened the
               lock after taking out the key from his pocket. If the
               accused had the key with him it would have been
               found in his personal search which must have been
               taken at the time of his arrest in view of the
c              provision contained in section 51 Cr.P.C. which
               preceded the journey to his house for recovery of
               wicket and string, a fact evident from the statement
               of Ravi Dutt PW 22 quoted hereinbelow:

D                    "After recording disclosure statement of
                     accused, I arrested him in his case. It is
                     correct that after arresting accused I took him
                     to the house of accused for search."

E       24. Mr. Bachawat submitted that the injuries found on the
    body of the appellant as per the MLC (Ex.P.W. 14/A) have not
    been explained.

       25. He further stated that no question was put to the
  accused to explain the alleged injuries on his person as to how
F and when and the manner in which the allege injuries were
  caused. As per the settled law of this court the question for
  statement under section 313 Cr.P.C. must be framed in such
  a way so as to enable the accused to know what he is to
  explain. He referred to the judgment of this court in Ajay Singh
G v. State of Maharashtra 2007 ( 12) SCC 341 wherein the Court
  has held as under:

        "Th~ question must be framed in such a way as to enable
        the accused to know what he is to explain, what are the
        circumstances which are against him and for which an
H
     SANJAY KUMAR JAIN v. STATE OF DELHI                  1149
           [DALVEER BHANDARI, J.]

    explanation is needed. The whole object of the section is      A
    to afford the accused a fair and proper opportunity of
    explaining circumstances which appear against him and
    that the question must be fair and must be couched in a
    form which an ignorant or illiterate person will be able to
    appreciate and understand. A conviction based on the           B
    accused's failure to explain what he was never asked to
    explain is bad in law. The whole object of enacting section
    313 of the Code was that the attention of the accused
    should be drawn to the specific points in the charge and
    in the evidence on which the prosecution claims that the       c
    case is made out against the accused so that he may be
    able to give such explanation as he desires to give .

    . . . .. He must be question separately about each material
    substance which is intended to be used against him. The
    questioning must be fair and couched in a form which an D
    ignorant or illiterate person will be able to appreciate and
    understand. Even when an accused is not illiterate, his
    mind is apt to be perturbed when he is facing a charge of
    murder. Fairness, therefore, requires that each material
    circumstances should be put simultaneously and E
    separately in a way that even an illiterate mind, or one
    which.is perturbed or confused, can readily appreciate and
    understand."

     26. Mr. Bachawat submitted that the only questions put to     F
the accused under section 313 Cr.P.C. are as under:

     Q.8   It is further in evidence against you that your two
           hairs of head Ex.PB were also seized and taken into
           possession vide memo Ex.PW 4/E and you were
           also sent for medical examinations vide ML CEX          G
           PW 14/A, what you have to say?

     Ans.8 It is correct that two hair from my head were plucked
          by police. Rest 'I' do not know.
                                                                   H
    1150 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A       Note: It is of significant relevant to note that Q.8 was put
        to the accused under section 313 Cr.P.C. to connect the
        accused with the alleged crime. DNA report as regards
        the hair found from the Chest of the deceased and hair
        taken from the scalp of the accused was called for.
B
        27. Mr. Bachawat contended that The High Court in its
    impugned judgment as regards this DNA report has observed
    as under:

        "The DNA report had not been filed in this behalf. In our
c       considered view this fact itself cannot belie the story of the
        prosecution though the availability of the DNA report would
        have strengthened the prosecution story."

         28. Thereafter, Mr. Bachawat further contended that the
0   High Court in the above situation ought to have necessarily
    inferred and presumed that the seized hair from the chest of
    the deceased was not of the accused as such the accused is
    not the author of the crime.

       29. Mr. Bachawat referred to the following question put to
E the accused under the statement recorded under section 313
  Cr.P.C.:

         Q.23 It is further in evidence against you that on
              13.4.1991 you were medically examined by the
F            doctor at SON Hospital, Shahdara, vide MLC
             No.1276 Ex. PW14/A, what you have to say.

         Ans.23      I was medically examined.

       30. Mr. Bachawat also submitted that the as per MLC
G following injuries were found on the appellant:

         1.    Scratch mark over Rt. Knee and Lt. knee joint
               (Brown coloured).

         2.    One small bruise (blackish red) over exterior aspect
H
     SANJAY KUMAR JAIN v. STATE OF DELHI                  1151
           [DALVEER BHANDARI, J.]

           of Lt. Wrist Joint.                                     A

     3.    One scratch mark (pin point) reddish over redial
           margin of Rt. Thumb.

     4.    Linear 2-3 pinkish 5-6 ems below Rt. inperscapular
           region.                                                 B

      5.   Small irregular 1-2 pinkish bruise over Lt. Scapela
           region.

     31. The learned senior counsel for the appellants referred
to the statement of Dr. L.K. Barua, P.W.20 who conducted post-
                                                                   c
mortem examination on the body of the deceased and found
the following injuries:

      1.    Multiple prominent abrasions were present on front
            and sides of the neck, extending form sub-mental       D
            are to the supra-external notch. The abrasions were
            also present and both mendibular areas. The
            abrasions in front and on the right side showed four
            prominent ligatures marks almost parallel to each
            other and wee placed horizontally. Th.e margins of     E
            these abrasions were seen fusing at their outer
            ends on the right side of the neck. The linear
            abrasions were also seen on the left side of the
            neck but were comparatively faint in comparison to
            right side. The width of ligature abrasions varied     F
            from .06 c.m. to 1.2 c.m. The areas in between the
            individual marks also showed multiple small
            abrasions and bruising with evidence of grazing. On
            the back side of the neck a narrow interrupted
            abrasion mark could be seen running horizontally.      G
      2.    One small bruising was seen on left side front of
            upper part of chest just below the middle part of
            collar bones of size 3 c.m. x 2.5 c.m.

      3.    One abrasion on right side front of the chest just     H
    "


        1152 SUPREME COURT REPORTS [20101 14 (ADDL.) S.C.R.

A                   below the medial third of right collar bone of size 3
                    c.m. x 1.8 c.m.

              4.    One abrasion of size 1 c.m. x 0.5 c.m. were seen
                    on the right shoulder stop.
B             5.    Small abrasion size 0.5 c.m. x 0.2 c.m. were seen
                    on the left shoulder top.

              6.    Small abrasion size 2 c.m. x 1 c.m. on the medial
                    aspect of right arm.
c             7.    Abrasion size 2 c.m. x 1.5 c.m. on the medial
                    aspect of right elbow.

              8.    Small linear abrasion were seen o the left .forearm
                    on its dorsal aspect of size 0.5 c.m. x 0.2 c.m. It was
D                   crecenestic in side and are possibly nail marks.

              9.    Abrasion size 3.2 c.m. x 3 c.m. were seen in front
                    and side of the nose.

              10.   Abrasion size 3 c.m. x 2 c.m. were seen on the left
E                   cheek prominent.

             32. Mr. Bachawat further submitted that the recovery of the
        ornaments is to be discarded as a matter of law. The recovery
        of ornaments is not admissible in evidence as the same is not
F       effected under section 27 of the Evidence Act inasmuch as the
        disclosure statement was recorded before the arrest was
        made, a fact evident from the following extract of the testimony
        of Ravi Dutt PW22:

            "After recording disclosure statement of accused, I
G
            arrested him in this case. It is correct that after arresting
            accused I took him to the house of accused for search."

      33. Learned senior counsel for the appellant contended that
  the High Court erred in not noticing these facts. He also
H submitted that there are material contradictions as to the
     SANJAY KUMAR JAIN v. STATE OF DELHI                   1153
           [DALVEER BHANDARI, J.]

ornaments which the deceased used to wear and which were            A
missing from her body. According to Mohan Lal, P.W. 2, the
deceased used to wear golden ear-rings, golden ring, silver
pajeb and silver mangalsutra. When he saw the deadbody of
the deceased, he saw that mangalsutra, ring and ear-rings were
missing from her body. Similarly, Raj Bala P.W.3 submitted that     B
her daughter used to wear ear-rings of gold, ring of gold, nose
pin of gold and silver necklace and the same were missing
from her body.

     34. According to Constable Anil Kumar, P.W.9, one ring
of rolled gold, one pair of pajeb and four toe-rings (bichhuas)     c;
which the deceased was wearing was removed from her body.
He produced the above stated articles before Ravi Dutt
Inspector, who had converted the broken bangles and ring,
pajeb and toe-rings into two separate pulandas and sealed with
the seal of GSS and took the possession of the said articles        D
vide memo Ex.P.W.9/A.

     35. Ramesh Kumar, P.W. 25 stated that sixth pulanda was
containing one gold ring, one pair of pajeb but Jagdish Chand
PW4 and Jukmal Chand Jain, PW5 deposed that the said gold           E
ring was recovered from a pit near the railway track at the
instance of appellant.

      36. According to Mr. Bachawat the string and cricket
wicket (stump) are planted. Had these articles been there the
investigating officer who had reached the spot on the 10th itself   F
would have definitely seized the same. The place was
accessible inasmuch as they had not locked and sealed the
premises so that nobody could have an access to the said
office. There is no explanation on behalf of the prosecution for
this illegality.                                                    G'

     37. Mr. Bachawat submitted that had these articles such
as cricket wicket (stump) and string (narrah) been used in the
alleged crime there ought to have been the finger prints of the
assailant and they must have been blood stained in view of the      H.
    1154 SUPREME COURT REPORTS [2010] 14 (ADDL) S.C.R.


A   injuries suffered by the deceased. In this regard, the opinion of
    the doctor is worth noting.

         Dr. L.K. Barua, P.W. 20 deposed as under:

        "I did not find any mark of blood or parts of skin in the
B       string. I did suggest the police that the nurrah Ex.16 be
        also sent to CFSL for opinion.

         I am not competent to give an opinion which my CFSL
         render in this particular situation. I did not indicate in my
c        opinion whether there was skin or blood mark on this
         nurrah. I did not put any mark of identification on this stump
         Ex.p.7. On naked eye, I did not find mark of blood or skin
         and only CFSL could say about this. I do not want to give
         opinion as to what could be the role of stamp in the present
D        situation.

         Not sending these articles to CFSL despite the opinion of
         the doctor is telling circumstance in favour of the accused
         and these articles cannot be attributed to the accused for
         being used in the alleged crime.
E
         That the stririg (narrah) alleged used for strangulating the
         deceased was eight and a half inches in length (as per
         Ex.PW4/C) making it impossible to commit the offence in
         the manner alleged by the prosecution."
F
        38. We find some merits in the statements of the learned
    senior counsel for the appellant that in a case of circumstantial
    evidence all circumstances must lead to the conclusion that the
    accused a!)pellant was the only one who had committed the
    crime and none else.
G
        39. On following aspects there is no consistency in the
    prosecution version:

          (1)   The door leading to the house of the deceased had
H               free access and possibility of any other person
     SANJAY KUMAR JAIN v. STATE OF DELHI                   1155
           [DALVEER BHANDARI, J.]

           entering the house of the deceased cannot be ruled       A
           out.

     (2)   The landlord had clear access to the house of the
           deceased and non-examination of the landlord
           creates serious doubt in the prosecution version.
                                                                    B1
     (3)   Injuries found on the body of the accused/appellant
           remained unexplained. No question was put to the
           accused to explain the alleged injuries on the
           person ..
                                                                    c
     (4)   There is a material contradiction as to the
           ornaments which the deceased was wearing and
           were missing from her body.

     (5)   The string and wicket (stump) were not seized by
                                                                    DI
           the Investigating Officer on the same day as they
           were lying near the dead body.

     (6)   The string and the wicket (stump) were not sent to
           Central Forensic Science Laboratory (CFSL}
           despite the opinion of the doctor telling the            E
           circumstances in favour of the accused for being
           used in the alleged crime.

     (7)     The string (narrah) allegedly used for strangulating
             the deceased was 8 % inches in length and making
                                                                    F,
           . it impossible to commit the offence in the manner
             alleged by the prosecution.

     40. In view of the aforementioned infirmities in the
prosecution's version the conviction under Section 302 of the
Indian Penal Code cannot be sustained. Consequently, the            G
impugned judgment of the High Court and the judgment of the
Additional Sessions Judge are accordingly set aside and the
appellant is acquitted as far as his conviction under Section
302 of the Indian Penal Code is concerned.
    1156 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.

A        41. Now the question arises is whether the appellant can
    be convicted under Section 3048 of the Indian Penal Code?
    In the instant case the appellant was also charged under
    Section 3048, but, in view of his conviction under Section 302
    of the Indian Penal Code the trial court did not proceed with
B   the charge under Section 3048 of the Indian Penal Code.
    Section 3048 reads as under:

        "3048. Dowry death

          (1)   Where the death of a woman is caused by any
c               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 relative of her husband for,
D               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.

E               Explanation:-For the purpose of this sub-section,
                "dowry" shall have the 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
F               than seven years but which may extend to
                imprisonment for life.

       42. In the instant case the marriage took place on
  20.02.1990 and Anju died on 10.4.1991 because of ten ante
G mortem bodily injuries which were found on her body at the
  time of her death. Anju died within seven years of her marriage.
  In the instant case the father of the deceased Mohan Lal, P.W.2
  and the mother of the deceased Raja Bala, P.W.3 were
  examined. They have categorically stated that the deceased
H was subjected to consistent cruelty and harassment by her
      SANJAY KUMAR JAIN v. STATE OF DELHI                   1157
            [DALVEER BHANDARI, J.]

husband in connection with demand for dowry. PW2 deposed             A
that on demand from the appellant, he was given Rs.15,000/-
on one occasion and later gave Rs.10,000/-. According to him,
there was consistent harassment on account of demand for
dowry all through. P.W.3 had stated that the appellant used to
harass and beat her daughter in connection with the demand           B
of dowry. In this view of the matter, the appellant's continuously
harassing and beating the deceased in connection with
demand of dowry clearly falls within the four corners of the
Section 304B of the Indian Penal Code.

     43. Section 304B of the Indian Penal Code was inserted          c
by the Dowry Prohibition (Amendment) Act, 1986 with a view
to combating the increasing menace of dowry death. It
provides that where the death of a woman is caused by any
burns or bodily injury or occurs otherwise than under the normal
circumstances within seven years of her marriage and it is           D
shown that soon before her death she was subjected to cruelty
or harassment by her husband or any relative of her husband
for or in connection with any demand for dowry shall be guilty
under Section 304B of the Indian Penal Code. It is most
unfortunate that instances of dowry death are rapidly increasing.    E
     44. This dowry system is a big slur and curse on our
society, democracy and the country. It is incomprehensible how
such unfortunate and condemnable instances of dowry deaths
are frequently occurring in our society. All efforts must be made
                                                                     F
to combat and curb the increasing menace of dowry death.

    45. This court in Ashok Kumar v. State of Rajasthan
(1991) 1 sec 166 has laid down as under:

     " ......... Bride burning is a shame of our society. Poor       G
     never resort to it. Rich do not need it. Obviously because
     it is basically an economic problem of a class which
     suffers both from ego and complex. Unfortunately, the high
     price rise and ever increasing cost of living coupled with
     enormous growth of consumer goods effacing difference           H
         1158 SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A                  between luxury and essential goods appear to be luring
                   even the new generation of youth, of the best service, to
                   be as much part of the dowry menace as their parents and
                   the resultant evils flowing out of it. How to curb and control
                   this evil? Dowry killing is a crime of its own kind where
B                  elimination of daughter-in-law becomes immediate
                   necessity if she or her parents are no more able to satiate
                   the greed and avarice of her husband and their family
                   members, to make the boy available, once again in the
                   marriage market. Eliminate it and much may stand resolved
c                  automatically .......... "

              46. The legislature was seriously concerned about this
         unfortunate reality of our society and to curb and combat
         increasing menace of dowry deaths with a firm hand the Dowry
         Prohibition Act, 1961 was enacted with the following objects
D        and reasons:

                "The object of this bill is to prohibit the evil practice of
                giving and taking of dowry. This question has been
                engaging the attention of the government for some time
E               past, and one of the methods by which this problem, which
                is essentially a social one, was sought to be tackled was
                by the conferment of improved property rights on women
                by the Hindu Succession Act, 1956. It is, however, felt that
 ~·: h:;; , a· 1ai/which makes the practice punishable and at the
    ~h· ··t-· or  -..., -              -    ,
F .,            same time ensures that any dowry, if given does ensure
             9
       ':. '=for the benefit of the wife will go a lon·g way to educating
      '> t. public opinion and to the erad,i_cation of this evil. There has
                also been a persistent demand for such a law both in and
                outside parliame'nt. J-;Jen.ce, the present Bill. It, however,
G · ' . takes care to exclude presents in the form of clothes,
 ~"" ;c,_ ,ornaments, etc., which .are customary at marriages,
       · .·, ,.provided the value thereof does not exceed Rs. 2000.
, r: _-:1 Such a provision appears to be necessary to make the law
." ..., t· workable.': · . ·
          '. : '            - ···l                •
                   47. In The- State of Punjab v. Iqbal Singh and Others
      SANJAY KUMAR JAIN v. STATE OF DELHI                   1159
            [DALVEER BHANDARI, J.]

(1991) 3 SCC 1 this Court observed that crimes are generally         A
committed in the privacy of residential homes and in secrecy
and it is difficult to get independent direct evidence in such
cases. That is why the legislature has, by introducing Secti9ns
113A and 1138 in the Evidence Act, tried to strengthen the
prosecution hands by permitting a presumption to be raised if        B·
certain foundational facts are established that the unfortunate
event has taken place within seven years of the marriage.

     48. On proper analysis of Section 3048 of the Indian Penal
Code and Section 1138 of the Evidence Act, it shows that there
must be material to show that soon before her death the victim       c
was subjected to cruelty or harassment. The prosecution is under
an obligation to rule out any possibility of natural or accidental
death. Where the ingredients of Section 3048 of the Indian
Penal Code are satisfied, the section would apply. If death is
unnatural, either homicidal or suicidal, it would be death which     D ·
can be said to have taken place in unnatural circumstances and
the provisions of Section 3048 would be applicable.

     49. The death, otherwise than under normal circumstances,
under Section 3048 of the Indian Penal Code would mean the           E ·
death not in usual course either natural or accidental death.
Section 3048 creates a substantive offence. The necessity for
insertion of the two provisions has been amply enumerated by
the Law Commission of India in its 21st Report, dated
10.08.1988 on 'Dowry Deaths and Law Reform'. This has been           F
primarily done because of the pre-existing law in securing
evidence to prove dowry related deaths.

     50. In order to bring home the guilty under Section 3048
of Indian Penal Code the following ingredients are necessary:
                                                                     G
      (1)   The victim was subjected to cruelty or harassment
            by her husband or his relatives.

      (2)   Such cruelty or harassment was for, or in connection
            with any demand for dowry.                               H ,
    1160 SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.


A          (3)   Such cruelty or harassment was done within seven
                 years of the marriage.

        51. Evidence on record of this case clearly lead to the
    conclusion that all these three ingredients are available in full
8   measure in this case. The deceased was subjected to cruelty
    and harassment by her husband, the appellant herein and the
    harassment was in connection with the demand of clnwry.

         52. In the instant case the victim (deceased) died within
    one year and two months of the marriage. On proper analysis
C   of the entire evidence on record it is abundantly proved that the
    appellant was clearly guilty of committing an offence under
    Section 3048 of the Indian Penal Code.

          53. Consequently, we deem it appropriate to set aside the
o   conviction of the appellant under Section 302 of the Indian
    Penal Code but in the facts and circumstances of this case we
    proceed to convict the appellant under Section 3048 of the
    Indian Penal Code and sentence him to 9 years rigorous
    imprisonment and fine of Rs.10,000/-. In case of-non-payment
E   of fine, the accused would further undergo imprisonment for two
    months.

         54. As a result, this appeal is partly allowed and disposed
    of accordingly.

    N.J.                                     Appeal partly allowed.