IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Crl. Appeal No.1515-SB of 2002 Date of Decision: 01.09.2010 Manphool Singh and others ........Appellants Versus State of Haryana .......Respondent (2) Crl. Revision No.169 of 2003 Rajpal ........Petitioner Versus State of Haryana and others .......Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr. R.K.Hooda, Advocate for the appellants. Ms. Sunita Nandal, Advocate for the petitioner. Mr. J.S.Rattu, Deputy Advocate General, Haryana. ****** A.N.JINDAL, J. This judgment of mine shall dispose of Criminal Appeal No.1515- SB of 2002 and Criminal Revision No.169 of 2003, both having been arisen out of the same judgment dated 29/31.08.2002, are disposed of together. The appellant-accused Manphool Singh (father-in-law), Rajbir (husband), Surajmal (elder brother-in-law) and his wife Sunita were tried for the offences under Sections 304-B & 498-A IPC. On trial, Sunita was acquitted of all the charges whereas Rajbir, Manphool Singh and Surajmal Crl. Appeal No.1515-SB of 2002 & -2- Crl. Revision No.169 of 2003 were acquitted under Section 304-B, IPC. However, they were convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/- each under Section 498-A, IPC. Factual matrix of the case is that Rajbir had married to Babli about two and half years prior to the occurrence. Rajpal being the uncle of Babli disclosed in his statement that at the time of marriage with Rajbir, Om Parkash (father of deceased) had given sufficient dowry beyond his financial status. Immediately after the marriage, they being dis-satisfied with the dowry, started harassing her. Just few days prior to the death, Om Parkash had given a buffalo to the accused worth Rs.10,500/- but thereafter they started demanding Rs.50,000/-. Babli was being harassed for not bringing that amount. On 22.12.2000, Surajmal (Jeth of the deceased) along with Babli came to their village at that time, Babli informed her uncle Om Parkash and Mahabir about the maltreatment given to her. However, the complainant assured that they would meet with the demand but they should not harass her. On 27.12.2000, at about 3:00 PM, Rajbir sent a telephonic message to the village of the complainant, Narnaund informing them that Babli was in serious condition whereupon Rajpal, Om Parkash and Mahabir went to village Jewra (the matrimonial home of Babli) and saw her lying dead on a cot . They also witnessed some injuries on her neck and there was a piece of rope having four folds, which was lying cut there. Babli was pregnant at that time for the last seven months. They suspecting that Babli has been murdered or might have committed suicide having fed up with the accused on account of maltreatment and harassment given to her on account of dowry. After recording the aforesaid statement of Rajpal, SI Om Parkash went to the village Jewra. It was night time. On 28.12.2000, he again Crl. Appeal No.1515-SB of 2002 & -3- Crl. Revision No.169 of 2003 visited the village; prepared the inquest report. He took the rope into possession which was in two pieces. He got prepared the photographs of the place of occurrence; got the post mortem examination of the dead body conducted; prepared the rough site plan of the place of occurrence and recorded the statements of the witnesses. Ultimately, on completion of investigation, the challan was presented in the Court. All the three accused were charged under Sections 304-B & 498- A, IPC to which they pleaded not guilty and opted to contest. Prosecution, in order to substantiate the charges, examined PW-1 Satish Photographer, who had photographed the dead body of Babli, PW-2 Head Constable Dharambir; PW-3 Rajpal, being the complainant; PW-4 Dr. Gopal Bhardwaj, being the member of the team comprising of Dr. Suman Menon and Dr. Ajay Kumar Gupta conducted the post mortem examination on the dead body of Babli; PW-5 Head Constable Dushyant, PW-6 ASI Dharamraj are the formal witnesses; PW-7 Subhash, Draftsman had prepared Scaled Site Plan of the place of occurrence. PW-8 Om Parkash, is the father of the deceased and PW-9 S.I. Om Singh is the Investigating Officer. When examined under Section 313 Cr.P.C., all the accused persons denied the incriminating circumstances appearing against them and pleaded their false implication in the case. Rajbir accused explained as under:- “My wife wanted to live with me at the brick klin at Dharsul but I insisted that she would live at Jewra as my mother was dead and there was no body to look after my father and my brother etc. Sunita had been living separate because of divorce between her and my brother and there was no body to help my father. This was dispute between us. Crl. Appeal No.1515-SB of 2002 & -4- Crl. Revision No.169 of 2003 My wife then committed suicide. I had come for two days leave from the brick klin and when I came back to Dharsul. Sunita (since acquitted) pleaded that she was divorced by the Surajmal (accused), therefore, she had no concern with the accused family after divorce.” Surajmal accused explained as under:- “I was in Auto Market. I do not know what happened. I was living in Auto Market, Hisar. I am innocent.” Manphool accused explained as under:- “As my daughter-in-law had died, therefore, this case was registered against me. I was working in the farm. I do not know how she died. I used to come fortnightly or after 20 days to the house. I am innocent.” The trial ended in acquittal of Sunita whereas conviction of other accused only under Section 498-A of the IPC. Arguments heard. Record perused. Learned counsel for the appellants has urged that it was a case of clean acquittal. Prosecution has failed to prove, if there was any demand of dowry or much less any harassment to the deceased on the part of the accused. She had her own reasons to commit suicide as her demand of making separate residence with Rajbir at the brick klin at Dharsul had not been met with. Both the witnesses are contradictory in their statements. The route cause of the dispute as alleged by the prosecution being demand of dowry has not been accepted by the trial Court, therefore, the witnesses, who have been dis-believed by the trial Court qua the demand of dowry, should not have been believed qua the allegations of cruelty. As such, the benefit of doubt, should have been extended to them. Crl. Appeal No.1515-SB of 2002 & -5- Crl. Revision No.169 of 2003 On the other hand, Deputy Advocate General, Haryana while supporting the revision petition as well as assailing the judgment qua which the accused had been acquitted of the charges under Section 304-B IPC has urged that observations made by the trial Court are whimsical one. The Court has ignored the material evidence; the presumption as provided under Section 113-B of the Evidence Act and provisions of Section 107 of the Indian Evidence Act have also not been considered. The Court has also not properly appreciated the evidence of the star witnesses namely PW-8 Om Parkash and PW-3 Rajpal. As such, the judgment has resulted into serious miscarriage of justice and the accused has been acquitted for no reasons, however, he has not assailed the judgment of acquittal qua Sunita. While supporting the acquittal under Section 304-B IPC, the counsel for the accused has urged that the same is well founded and there are no grounds of interference at this stage. Heard. The provisions of Section 304-B, IPC are being invariably applied in the cases involving the death of an young girl who dies at her in-laws house and the allegations of demand of dowry are raised. The law relating to the dowry death as punishable under Section 304-B IPC has been elaborately discussed by the Apex Court of State of Rajasthan Versus Teg Bahadur, 2004(4) RCR (Criminal) 538 (SC): 2004(3) Apex Criminal 611: 2005 Supreme Court Cases (Criminal) 218 wherein it was observed as under:- "15. In brief, for proving the offence under Section 304-B of the Indian Penal Code, the prosecution has to prove the following things: a) The death of the married woman was within seven years of the marriage. Crl. Appeal No.1515-SB of 2002 & -6- Crl. Revision No.169 of 2003 b) A little prior to death, her husband or relative, on the point of demand of dowry, subjected her to cruelty or harassed her.” Now if we read Section 113-B of the Evidence Act in conjunction with Section 304-B IPC then it transpires that there must be material to show that “soon before her death”, the victim was subjected to cruelty or harassment. Prosecution, if proves, that soon before the occurrence, there was “cruelty or harassment” and in that case Section 113-B of the Evidence Act comes into operation. Section 113-B of the Evidence Act reads as under:- "113-B. Presumption as to dowry death-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death." Explanation-- For the purpose of this section, "dowry death" shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860). The words “soon before” in Section 113-B IPC cannot be limited by fixing the time limit. It is left to be re-determined by the Court depending upon the facts and circumstances of the case. Reliance,if any, could be placed over the case Kailash Versus State of Madhya Pradesh, AIR 2007 S.C. 107. The words “soon before the death” have been further elaborated by the Hon'ble Apex Court in case Ashok Kumar Versus State of Haryana 2010(4) R.A.J. 482 wherein it was observed as under:- "As already noticed, the expression “soon before her Crl. Appeal No.1515-SB of 2002 & -7- Crl. Revision No.169 of 2003 death” has to be accorded its appropriate meaning in the facts and circumstances of a given case. In the present case, there is sufficient evidence to show that nearly 20-22 days prior to her death, the deceased had come to her parental home and informed her father about the demand of Rs.5000/- and harassment and torture to which she was subjected to by the accused and her-in-laws. Her father had consoled her ensuring that he would try to arrange for the same and thereafter took her at her matrimonial home 7-8 days prior to the incident." The presumption of guilt against the accused under Section 113- B of the Evidence Act can be raised only after the best ingredients of the offence punishable under Section 304-B, IPC are satisfied, which are as under:- (1) The married woman died within 7 years of her marriage; (2) Soon before her death, her husband and relative subjected to her cruelty and in relation to demand of dowry. So far as the aforesaid ingredients are concerned, deceased in this case died within two and a half years of her marriage. There is evidence of PW-3 Rajpal, the uncle of deceased, and PW-8 Om Parkash, father of the deceased, that the deceased was married to Rajpal, two and a half years prior to the incident. She was quite hale and hearty at that time. Immediately after the marriage, accused had started harassing Babli on account of demand of dowry. They were not satisfied with the buffalo worth Rs.10,500/- given to them and they placed the demand of dowry of Rs.50,000/-. It has also come in evidence that Surajmal, elder brother of Rajbir, was divorced by his wife on the ground that he was demanding dowry. The judgment (Ex.D-1) and decree-sheet (Ex.D-2) support this fact. Crl. Appeal No.1515-SB of 2002 & -8- Crl. Revision No.169 of 2003 Both the witnesses further state that Surajmal had come five days prior to the occurrence i.e. 22.12.2000 along with Babli and had raised demand but he had taken Babli on the assurance that demand would be satisfied at the earliest. However, Babli had committed suicide 5 days thereafter. The Apex Court in Ashok Kumar's case (supra) also observed that the legislative object in providing such a radius of time by employing the words 'soon before her death' is to emphasize the idea that her death should, in all probabilities, been aftermath of such cruelty or harassment. While giving such observations, the Apex Court relied upon the judgment Tarsem Singh Vs. State of Punjab, 2009(1) R.C.R. (Criminal) 573. This Court has also further observed that minor contradictions in the statements of the witnesses cannot be counted especially when they are examined after such a long time of the incident. It may not be possible for them to make absolute reproduction of their earlier statements or line to line or minute to minute correct reproduction of the averments and the Court has to adopt reasonable and practicable approach and these are only the material or serious contradictions/variations, which may be of some consequence. In the instant case also, the occurrence had taken place on 27.12.2000 whereas the statements were recorded after two years i.e. on 17.07.2002 and 05.08.2002 respectively. It is also proved on the record that she died in other than normal circumstances at the house of the accused for which they have to explain as to how and in what circumstances, she died or compelled her to commit suicide. The trial Court appears to have not appreciated the medical evidence as well as ocular version in the light of the aforesaid legal provisions. Consequently, the impugned judgment stands vitiated and requires remittance of the case for re-consideration. In the present case, the material evidence, as referred to above and the legal provisions of law as provided under Section 113-B of the Crl. Appeal No.1515-SB of 2002 & -9- Crl. Revision No.169 of 2003 Evidence Act have not been properly appreciated and over-looked. As such, the revision petition preferred by complainant-Rajpal deserves to be accepted. For the reasons recorded above, revision petition is accepted and impugned judgment is set aside and the case is remitted back to the trial Court to decide the same in accordance with law. As regards appeal, the same is dismissed with the observations that the same is correct only to the extent that the conviction and sentence recorded against the accused qua offence under Section 498-A IPC, however, the Court is yet to see if Babli was maltreated by the accused on account of demand of dowry. September 01, 2010 (A.N.JINDAL) Gagan JUDGE