Criminal Appeal No.1189-SB of 2002. -1- In the High Court of Punjab and Haryana at Chandigarh. Criminal Appeal No.1189-SB of 2002. Date of decision: Makhan Singh. ...Appellant. Versus The State of Haryana. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. S. S. Joshi Advocate for the appellant. Mr. A.K.Jindal, AAG Haryana. ... K. C. Puri, J. Judgment. Under challenge, in this appeal, is the judgment/order dated 13.7.2002/16.7.2002 passed by Shri L.N.Mittal, the then Sessions Judge, Kurukshetra, convicting and sentencing the appellant to undergo rigorous imprisonment for ten years. However, by giving benefit of doubt, co-accused Mukhtiar Singh Criminal Appeal No.1189-SB of 2002. -2- and Joginder Kaur were acquitted. A few facts would be necessary to appreciate the arguments raised by the parties as under:- Manjit Kaur, since deceased, was married to accused Makhan Singh on 28.1.1996. Her parents gave dowry according to their capacity. A motor cycle make Hero Honda was also given. The accused, however, started harassing her by making demand of Bullet Motor-cycle. Joginder Kaur accused harassed Manjit Kaur for not giving gold chain to her. About 8 or 9 months after the marriage, Makhan Singh took Manjit Kaur to her parental house and demanded Rs.40,000/- from her father Bhan Singh for going to Moscow. Bhan Singh, referred Makhan Singh accused to his other daughter Kamlesh Kaur. Accordingly, Makhan Singh accused along with his wife Manjit Kaur went to Kamlesh Kaur in village Jhinwarheri and she gave Rs.30,000/- to Makhan Singh accused, who accordingly went to Moscow. Another Makhan Singh, husband of Kamlesh Kaur, resided in USA. Makhan Singh accused demanded Rs.2 lacs from him. He remitted 3100$ to Makhan Singh accused,who thereafter demanded money from the brother of Manjit Kaur who was residing in Germany, who remitted 1000 German Marks to Criminal Appeal No.1189-SB of 2002. -3- Makhan Singh,accused. After returning from Moscow to India in March,1998, Makhan Singh accused tortured Manjit Kaur and asked her to bring Rs.6 lacs as he wanted to go to USA. Her parents could not afford to give this amount. It happened on or about 18/19.4.1998. Then, on 21.4.1998, Avtar Singh of village Niwarsi, who was the mediator in the marriage telephoned Kamlesh Kaur to the effect that Manjit Kaur was admitted in the hospital of Dr.Sobti, at Kurukshetra, as she had been administered poison by all the three accused. Kamlesh Kaur informed her father Bhan Singh. In the meantime, Manjit Kaur, who was taken by Mukhtiar Singh accused to Community Health Centre, Ladwa on 21.4.1998, at 2.40 PM, was referred from there to L.N.J.P.Hospital, Kurukshetra after her medico legal examination. Dr. R.P.Suri, sent rukka Exhibit PB/1 to Police Station, Ladwa in this regard. Mukhtiar Singh accused, instead of taking Manjit Kaur to Lok Nayak Jai Parkash Hospital (Government Hospital), took her to a private Nursing Home of Dr. Sobti at Kurukshetra, where on police application, Mrs. Vani Gopal Sharma, the then Judicial Magistrate Ist Class, Kurukshetra, recorded statement Exhibit DO/C of Manjit Kaur, wherein she stated that she was suffering from fever and Criminal Appeal No.1189-SB of 2002. -4- many medicines were lying there. She had been given medicine of green colour by the doctor and by mistake,she took other medicine of green colour. It was liquid medicine, which she consumed. On receiving intimation, Kamlesh Kaur and Bhan Singh separately reached the hospital of Dr. Sobti in the night/next morning. Bhan Singh made application Exhibit DK before Chief Judicial Magistrate, Kurukshetra for recording the statement of Manjit Kaur under Section 164 Cr.P.C. This application was marked to Illaqa Magistrate and notice to the State was also given. On 24.4.1998, Ms. Kanchan Nariala, the then Judicial Magistrate Ist Class, Kurukshetra recorded statement, Exhibit PE of Manjit Kaur who stated therein that four days ago, her husband asked her to bring Rs.6 lacs as he had to go to America. He also told her that if she did not bring the money, she and her daughter would be finished. Then at 1.30 PM, her parents-in-law caught hold of her and Makhan Singh accused administered poisonous medicine to her. Then, to avoid their implication in a case, her parents-in-law got her admitted in the hospital. She was not fully conscious when her earlier statement was recorded. On the basis of this statement, FIR, Exhibit PE/2 was recorded on 25.4.1998. On 28.4.1998, Sub Inspector Gurdwaya Ram recorded Criminal Appeal No.1189-SB of 2002. -5- statement, Exhibit PV, of Manjit Kaur in which she reiterated her allegations against the accused. The case was investigated and after completion of investigation, challan was presented against the accused. The accused were charge-sheeted accordingly to which they pleaded not guilty and claimed trial. In order to substantiate its allegations against the accused, the prosecution examined PW-1 Dr. H.K. Sobti PW-2 Dr. R.P. Suri, PW-3 Dr. A.K.Tewari, PW-4 Dr. Rajan Kohli, PW-5 Dr. Arun Ranjit, PW-6 Miss Kanchan Nariala, the then Judicial Magistrate Ist Class, Kurukshetra, PW-7 Constable Sudeep Kumar, Draftsman, PW-8 HC Sita Ram, PW-9 ASI Daljit Singh, PW-10 Avtar Singh, PW-11 Kamlesh Kaur, PW-12 Jarnail Singh PW-13 Bhan Singh, PW-14 Inspector Gurdwaya Ram, PW-15 Constable Jai Kishan, PW-16 Constable Vinod Kumar and PW-17 Dr. Jagmal Singh. Dr. Vijender Singh, Director, Forensic Science Laboratory, Haryana was examined as CW-1 by the trial Court. The statements of the accused were recorded under Section 313 Cr.P.C. They broadly denied all the incriminating allegations appearing against them in the prosecution evidence and Criminal Appeal No.1189-SB of 2002. -6- claimed to be innocent. The accused, however, admitted that Manjit Kaur, since deceased, was married to Makhan Singh, accused and the other two co-accused were his parents. They stated that Manjit Kaur had taken some poisonous substance by mistake and she was taken to Community Health Centre, Ladwa and her statement was recorded on 21.4.1998 at Kurukshetra by Mrs. Vani Gopal Sharma, Judicial Magistrate, Kurukshetra. They also alleged that Manjit Kaur was tutored by her father and sister to level false allegations against the accused and she did so accordingly by making her statement, Exhibit PE, on 24.4.1998 before Ms. Kanchan Nariala, Judicial Magistrate, Kurukshetra. The accused also alleged that they never demanded any dowry nor received anything else in cash or kind and that they were falsely implicated by the parents of Manjit Kaur. Makhan Singh, accused was away to Ladwa on 21.4.1998 at the shop of Kailash Chand, Commission Agent. In their defence, the accused examined DW-1 Mrs. Vani Gopal Sharma, the then Judicial Magistrate and DW-2 K.K.Rao, DSP. After the completion of trial, the appellant was convicted and sentenced, as noticed in the earlier part of the Criminal Appeal No.1189-SB of 2002. -7- judgment. Feeling aggrieved, the appellant has filed the present appeal. The learned counsel for the appellant has submitted that the case of the prosecution hinges upon two dying declarations made by deceased Manjit Kaur. According to the prosecution case, the occurrence had taken place on 21.4.1998. On the same day, Mrs. Vani Gopal Sharma, the then Judicial Magistrate Ist Class, Kurukshetra recorded the statement of Manjit Kaur, after obtaining the opinion of the doctor. The deceased had exonerated the appellant and stated that she had taken the medicine inadvertently. The said dying declaration is first in time and inspires confidence. The learned trial Court has ignored the said dying declaration and has accepted the second dying declaration of Manjit Kaur recorded on 24.4.1998 by Ms. Kanchan Nariala, the then Judicial Magistrate Ist Class, Kurukshetra. In fact, statement of Manjit Kaur was recorded on 24.4.1998 under Section 164 Cr.P.C and it was not a dying declaration. No opinion of the doctor was obtained prior to the recording of statement on 24.4.1998. The said statement made by Manjit Kaur is tutored one and the learned trial Court has wrongly accepted the same. Criminal Appeal No.1189-SB of 2002. -8- The learned counsel for the appellant has further submitted that deceased Manjit Kaur after taking medicine was admitted in the Nursing Home of Dr. Sobti. After that the deceased got herself discharged from Sobti Nursing Home against the advice of the doctor. The information regarding taking of medicine inadvertently was sent to the complainant through PW-11 Kamlesh Kaur. Buta Singh, brother of Makhan Singh has informed Kamlesh Kaur telephonically. The learned counsel for the appellant has further submitted that after discharge from the Nursing Home of Dr. Sobti, she was taken to Civil Hospital Pehowa and there also Manjit Kaur has not made any grievance against the accused. After discharge from the Civil Hospital, Manjit Kaur was taken to the hospital of Dr. Tiwari where also, she has not raised any little finger against any of the accused. Complainant Bhan Singh and his family members remained with Manjit Kaur after discharge from Sobti Nursing Home till the alleged statement of Manjit Kaur was recorded under Section 164 Cr.P.C. There was ample opportunity for the family members to torture Manjit Kaur and statement of Manjit Kaur dated 24.4.1998 is the result of torturing by the complainant and his family members. It is contended that statement Criminal Appeal No.1189-SB of 2002. -9- under section 164 Cr.P.C. is not a substantive piece of evidence. The learned counsel for the appellant has further submitted that the basic ingredients of offence under section 304-B IPC are not made out against the appellant. No demand of dowry article soon before the death of Manjit Kaur is proved by any legal evidence. PW-10 Avtar Singh acted as a go-in-between in the marriage. He has stated that neither any demand of dowry was made nor any harassment was caused to Manjit Kaur by the accused. So, he has demolished the prosecution case regarding the demand of dowry articles, altogether. Learned State counsel has supported the judgment of the trial court. I have heard learned counsel for both the sides and have carefully gone through the record of the case. Learned counsel for the appellant has placed much reliance on the dying declaration recorded by Mrs. Vani Gopal Sharma, Judicial Magistrate Ist Class, Kurukshetra. The learned trial Court has dealt with the said dying declaration and has ignored the same on valid grounds. The deceased died due to consumption of Organo Phosphorus, a group of insecticide. The said group of insecticide gives such a pungent smell that it cannot Criminal Appeal No.1189-SB of 2002. -10- be believed that any person can take the same accidentally. The stand taken by the accused that Manjit Kaur took the green colour medicine inadvertently, has rightly been rejected by the trial Court. Moreover, Manjit Kaur was taken by the accused to a private hospital. The certificate of fitness is also given by a private doctor of that hospital. Normally, a woman would not depose against her husband and in-laws as she knows that she has to spend her life at her in-laws place. So, it seems that the dying declaration dated 21.4.1998 exonerating the accused was simply under the influence of the accused. So, the same has been rightly discarded by the trial Court. To prove the offence under section 304-B IPC, the prosecution is required to establish the following ingredients :- “(1) that death of a woman has been caused by any burns or bodily injury or occurs otherwise than under normal circumstances; (2) that death has taken place within seven years of her marriage ; (3) that soon before her death, the woman was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, Criminal Appeal No.1189-SB of 2002. -11- any demand for dowry.” From the facts of the present case, it is held that all the three ingredients of offence under section 304-B IPC are complete, so far as accused-appellant is concerned. The factum of death within seven years has not been disputed. Otherwise also, from the prosecution evidence the said fact stands proved. The factum of un-natural death is also not disputed. The theory of inadvertently taking Organo Phosphorus is totally ruled out. From the testimony of star witnesses PW11 Kamlesh Kaur, younger sister of deceased and PW12 Jarnail Singh brother of deceased, the factum of demand of dowry articles and factum of harassment of Manjit Kaur by appellant is proved beyond reasonable doubt. Both these witnesses have been examined at length but nothing has been brought on the file to discard their sworn testimony. So far as the contention raised by learned counsel for the appellant that statement of deceased Manjit Kaur under Section 164 Cr.P.C. is tutored one and, on that count, the same should not have been relied upon, is concerned, the said submission is without any substance. There is no cogent evidence on the file produced by the accused that the deceased was tutored by her Criminal Appeal No.1189-SB of 2002. -12- family members. The mere fact that no opinion of the doctor has been taken prior to recording the statement under Section 164 Cr.P.C. does not discard her testimony out-rightly. PW11 Kamlesh Kaur has categorically stated that although sufficient dowry articles were given at the time of marriage but Makhan Singh has raised demand of money to purchase Bullet motorcycle. He also raised demands of money on different occasions. So, all these demands were in connection with demand of dowry articles soon before her death. So, the learned trial Court has rightly convicted the accused under section 304-B IPC. So far as the submission made by learned counsel for the appellant that statement under Section 164 Cr.P.C. is not a substantive piece of evidence is concerned, the said submission is without any substance. In case a person is alive then statement under Section 164 Cr.P.C. can be used for the purposes of confrontation. However, in view of Section 32 of the Indian Evidence Act, the statement made by the deceased is a substantive piece of evidence. So far as the submission made by learned counsel for the appellant that PW10 Avtar Singh has not stated about the demand of dowry articles and, on that count, the prosecution story Criminal Appeal No.1189-SB of 2002. -13- is doubtful is concerned, that submission is without any substance. The statement of a witness has to be read as a whole. This witness has resiled from his statement and he was duly confronted. However, he has admitted that everything was given at the time of marriage including motorcycle, fridge, colour television, jewellery and many other articles. He has also admitted the fact that Makhan Singh prior to the marriage had gone to Moscow. He has not denied the fact that Makhan Singh demanded Rs six lacs for going to USA. So, his testimony is not helpful to the accused. Otherwise also, normally the people avoid appearing as a witness so as to avoid the wrath of the accused. Mere fact that Manjit Kaur was got discharged from Sobti Hospital does not prove the fact of tutoring. The family members of Manjit Kaur were interested in the best treatment of Manjit Kaur. So, it cannot be said that on account of discharge from Sobti Hospital, the condition of Manjit Kaur has deteriorated, as argued by learned counsel for the appellant. She was given best treatment after discharge from Sobti Hospital as per evidence on the file. So far as the reliance on authority Jagga Singh vs State of Punjab, 1995(1) C.L.R. 124 (SC), is concerned, that authority Criminal Appeal No.1189-SB of 2002. -14- is distinguishable from the facts of the present case. In that case, the testimony of the other witnesses was found to be weak in nature and the dying declaration was shaky. In the present case, besides second dying declaration, there is other evidence on the file to prove the ingredients of offence under section 304 IPC. In authority Smt. Kamla vs State of Punjab, 1993 Crl. R.J. 68 (SC), there were four dying declarations which were discrepant vis-a-vis regarding the names of the culprits. So, that authority is not applicable to the facts of the present case. Authority in case Dandu Lakshmi Reddy vs State of A.P. 1999 (7) SCC 69 is distinguishable as in that case mental soundness of the deceased making two dying declarations was found to be shaky. Authority in case Sarwan Kumar vs State of Punjab, 2001(3) RCR (Criminal) 532 is distinguishable as in that case evidence of demand of dowry and maltreatment was not supported by the brother of the deceased and other prosecution witnesses. So, in these circumstances, two dying declarations were not accepted. Authority in case Kamal Kumar vs State, 1995(2) RCR (Criminal) 621, Delhi High Court (DB) is distinguishable as Criminal Appeal No.1189-SB of 2002. -15- in that case there was no certificate of doctor. In the present case, even if both dying declarations are taken out, the other evidence is sufficient to prove the guilt of the accused under Section 304-B IPC. In view of above discussion, the conviction recorded by the learned trial court does not call for any interference and stands affirmed. Lastly, the learned counsel for the appellant has submitted that sentence awarded is harsh. He has submitted that the accused remained in custody for 3 years, 5 months and 26 days upto 29.4.2005. He has further submitted that the occurrence relates to the year 1998. So, a prayer has been made for reduction of sentence. I have carefully considered the submission made by the learned counsel for the appellant and have gone through the record of the case. The learned trial Court has awarded rigorous imprisonment for a period of ten years under Section 304-B IPC. In my view, the ends of justice would be met, if the sentence is reduced to the minimum period. So, the sentence is reduced to rigorous imprisonment for a period of seven years under Section Criminal Appeal No.1189-SB of 2002. -16- 304-B IPC instead of ten years as awarded by the learned trial Court. With the above said modification in the quantum of sentence, the appeal stands disposed of. A copy of this judgment be sent to the trial court for strict compliance. The accused-appellant be taken into custody to undergo remaining part of sentence mentioned above. ( K.C. Puri ) May 15th , 2009 Judge 'jaggi/dalbir'