Crl.Appeal No.603-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.603-SB of 2001 Date of decision: 14.01.2011 Naresh and others ...Appellants Versus State of Haryana ...Respondent CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.Bipan Ghai, Senior Advocate with Mr. Mandeep Kaushik, Advocate, for the appellants. Mr.Kshitij Sharma, Asstt. Advocate General, Haryana. JITENDRA CHAUHAN, J. 1. The present appeal is directed against the judgment of conviction and order of sentence dated 1/2.5.2001 passed by the learned Additional Sessions Judge, Gurgaon (for short `the trial Court'), whereby the accused/appellants were convicted for the offence and sentenced to undergo RI for a period of seven years for the offence under Section 304-B IPC and to undergo RI for a period of two years for the offence under Section 498-A IPC. The appellants were sentenced to pay a fine of Rs.500/- or in default of payment of fine, to further undergo RI for a period of one month each. The substantive sentences were ordered to run concurrently. 2. Brief facts of the case may be noticed. Gomti Devi, the deceased, a young woman of 30 years, died on 10.3.1999. The death occurred on account of burn injuries at her matrimonial home in Village Haily Mandi. She was married on 11.2.1997 with the appellant-Naresh Crl.Appeal No.603-SB of 2001 2 Kumar. The couple was blessed with a male child. Chander Singh, PW7, father of the deceased, on learning from Ajit, younger brother of the appellant-Naresh Kumar, that her daughter had received burn injuries, reached the matrimonial home of the deceased at Haily Mandi along with his wife and sister-in-law (wife of younger brother), where he came to know that his daughter had been removed to the General Hospital, Gurgaon. On reaching General Hospital, he came to learn that due to the critical condition of Gomti Devi, she had been referred to the Safdarjang Hospital, Delhi. He reached Safdarjang Hospital but could not speak to his daughter on account of extensive burn injuries suffered by her. Suspecting some foul play at the hands of his son-in-law, he lodged a complaint, Ex.PK, with SI Basant Pal, PW11, on the basis of which, formal FIR, Ex.PK/2, was recorded. On 13.3.1999, Gomti Devi succumbed to her burn injuries. Thereafter, the postmortem examination on the dead body of the deceased was conducted. The complainant has alleged in the FIR that the appellants used to demand dowry and he specifically stated that on 11.12.1997, he gave a gas cylinder and stove to the appellants and subsequently, a demand of embroidery machine was raised in the year 1998. 3. ASI Basant Pal conducted the investigation. Earlier, the FIR was registered under Section 498-A IPC. After Gomti succumbed to her injuries in the late hours of 13.3.199, Section 304-B IPC was added. 4. Final report under Section 173 Cr.P.C. was prepared and presented before the Court of Illaqa Magistrate. The case was committed to the Court of Sessions. Accordingly, charges were framed under Sections 498-A and 304 IPC against the accused persons, to which they pleaded not guilty and claimed trial. Crl.Appeal No.603-SB of 2001 3 5. To prove its case, the prosecution examined as many as 13 witnesses. 6. Devinder Singh, SDM, Vasant Vihar, New Delhi, PW-1; Raj Pal Singh, Inspector, CIA, Yamuna Nagar, PW-2; Dharam Pal, Draftsman- cum-Constable, PW3; and C. Jagat Singh, PW4, are formal witnesses. 7. PW-5 Dr. Alexander F. Khaka, Safdarjang, Hospital, New Delhi, deposed that on 15.3.1999, he conducted the post-mortem examination on the dead body of the deceased. He further deposed that the injured suffered burn injuries to the extent of 95%. In cross-examination, he admitted that the patient remains conscious even after sustaining such injuries. It is also possible that the patient may give statement. 8. PW-6 Dr. Rakesh Kumar, Medical Officer, CHC, Pataudi, deposed that on 10.3.1999 at 7 a.m., Gomti was brought to CHC Pataudi in burn condition by Naresh, Mangat Ram and Kuria Ram, residents of Haily Mandi. He sent ruqa, Ex. PH to P.S. Pataudi. On police application, Ex. PJ, he made opinion to the effect that Gomti had already been referred to General Hospital, Gurgaon. In cross-examination, he admitted that on 14.3.1999 at 7.30 p.m., he medico-legally examined Naresh Kumar on police request and found the following injuries:- 1. Partially healed abrasion with grannucution tissue seen present over lateral aspect of right elbow area of size 9 cm X 1.2 cm to 3.8 cms irregular in shape. 2. Multiple vesicles and hurst visicle seen over medial aspect of right little finger. No fluid or pus was seen inside the burst visicle. Size of burst visicle is 6 cm X 2 cm to 2.85 cm was seen over the right thumb and fingers Crl.Appeal No.603-SB of 2001 4 on palmar and dorsum aspects of tips of fingers of different sizes and shapes. No fluid or pus was seen in the vesicles. Movements of right hand thumb and fingers were normal. 3. Multiple partially healed abrasions were seen over face right side, both aalae of the nose and tip of the nose, of different sizes and shape. Partially scab was seen over partially healed abrasions. 4. Partially healed abrasion over lateral aspect of right thigh upper most part of size 1.2 cm X 1 cm. Movements of right hip joint and thigh were normal. 5. Partially healed abrasion over posterior aspect of left shoulder area running above downwards of size 8 cm X 1 cm. Partially scab was found. Movements were normal. All the injuries were simple burns. On 14.3.1999, he also medico-legally examined Ganga Devi, on police request. 9. PW-7 Chander Bhan PW3- complainant deposed on the same lines as that of his earlier version given at the time of registration of the FIR. 10. PW-8 Rohtash Kumar, brother of Gomti, gave almost a similar version to that of Chander Bhan. 11. PW-9 Dr.Suresh Bakshi, Medical Officer, General Hospital, Gurgaon, deposed that on 10.3.1999, he medico-legally examined Gomti, who was referred from Haily Mandi. He found superficial deep burns from scalp to toes with peeling of skin present. The patient was having 90% burns and therefore, she was referred to Safdarjang Hospital, New Delhi for Crl.Appeal No.603-SB of 2001 5 further advice and needful. 12. PW-10 Fateh Singh, Photographer, is a formal witness. 13. PW-11 SI Basant Pal, Police Line, Gurgaon, deposed that on 10.3.1999, he received a ruqa about admission of burn case from CHG Pataudi and then he went there. But the patient had already been referred to GH Gurgaon. Accordingly, he reached there but the patient had again been referred to Safdarjang Hospital. Thereafter, he went to Safdarjang Hospital, where the complainant submitted him application, Ex. PK. 14. PW-12 B.R.Batra, Medical Record Technician, Safdarjang Hospital, New Delhi and PW-13 Dr.Shalabh Kumar are formal witnesses.. 15. After completion of prosecution evidence, the accused/appellants were examined under Section 313 Cr.P.C. and recorded their statements, wherein they denied the incriminating circumstances appearing against them in prosecution evidence and pleaded innocence. In defence, they examined as many as three witnesses, namely, Krishna as DW1; B.R.Batra, Medical Record Technician, Safdarjang Hospital, New Delhi as DW2 and Om Parkash as DW3. 16. Upon appreciation of the evidence and material on record, the learned trial Court convicted and sentenced the accused/appellants for the offence and the term mentioned at the outset in para 1 of this judgment. 17. Aggrieved against the judgment of conviction and order of sentence, the appellants have preferred the present appeal before this Court which was admitted by this Court vide order dated 23.5.2001. The appellant were enlarged on bail on 24.7.2001. 18. Learned counsel for the appellants has submitted that there are material improvements in the statement of the complainant, Chander Singh, PW7, the father of the deceased, and Rohtash, PW8, the brother of the Crl.Appeal No.603-SB of 2001 6 deceased. Learned counsel has pointed out that in the statement of Chander Singh, name of the accused-appellant No.2, Ganga Devi, is not mentioned. In the same way, there is no mention of the demand of colour TV in the statement of Rohtash under Section 161 Cr.P.C.The learned counsel has further submitted that the case against Ganga Devi is not believable as the prosecution witnesses improved upon their statement made in the inquest report in which Rohtash has not stated even a word against Ganga Devi. 19. Learned counsel has further submitted that the marriage took place on 11.2.1997. As per the deposition of the complainant, Chander Singh, PW7, only two instances of demand of dowry have been cited, i.e. of gas cylinder/stove made on 11.2.1997 and the demand of embroidery machine at the time of Raksha Bandhan in the year 1998. The learned counsel has submitted that the occurrence took place on 10.3.1999, therefore, it cannot be said that there was a demand by the appellants soon before the occurrence. He has argued that as per the case of the prosecution, no offence punishable under Section 304-B IPC is made out against the appellants. 20. The learned counsel has further submitted that the deceased died on account of accidental fire as she took a lighted candle inside the washroom where the cane filled with kerosene oil had been kept. The learned counsel, thus argues that the conduct of the appellant immediately after the occurrence gives credence to the version given by the appellant- husband under Section 313 Cr.P.C. wherein he has specifically admitted that the marriage was performed in a befitting manner, he had been living peacefully with his wife and never raised any demand of dowry. The appellant has further stated that there was no light in the washroom and they Crl.Appeal No.603-SB of 2001 7 used to lit candle for using the same. The deceased had gone in the washroom taking a candle and match box with her. A drum/cane of kerosene was kept there. The deceased was burnt due to accident or otherwise and he denied having exact knowledge. However, he has stated that on hearing cries of the deceased, he rushed to the spot and extinguished fire and in the process, got his hands burnt. He was also medico-legally examined by Dr. Rakesh Kumar, PW6 and as many as four injuries were noticed. He has further stated that his wife was conscious and speaking while she was in the hospital and he had requested the Police to record her statement but the family members of his wife, i.e., the complainant prevented her from making the statement. He has further stated that he moved application, Ex.DD, before the Police to record the statement of his wife. Learned counsel, in order to show that the appellant-Naresh Kumar was in love with his wife and leading a happy matrimonial life, has stated that the appellant has not remarried and is looking after his son born out of the wedlock between him and his wife, the deceased. 21. On the other hand, learned counsel for the State has submitted that the case against the appellant is proved beyond reasonable doubt. The appellant suffered only minor injuries. It is proved on record that he raised the demand of gas cylinder/stove and embroidery machine. 22. I have heard learned counsel for the parties and perused the record. 23. Admittedly, the marriage in the instant case took place on 11.2.1997. As per the case of the prosecution, the demand of gas stove or cylinder was raised on 11.2.1997. Thereafter, the appellants raised the demand of embroidery machine when the deceased visited her house at the Crl.Appeal No.603-SB of 2001 8 time of Raksha Bandhan in the year 1998. It is significant to note that except these two instances, there is no other instance of demand for dowry. The last demand was raised on the occasion of Raksha Bandhan in the year 1998 whereas the occurrence took place on 13.3.1999. Section 304-B IPC reads as under:- “304-B. Dowry death.- (1) Where the death of a woman is caused by any 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 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. 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 than seven years but which may extend to imprisonment for life.” 24. It is in the cases where it is established that soon before the death, the deceased was subjected to cruelty and harassment by her husband or any of his relative; for or in connection with any demand of dowry, such a death shall be called dowry death. As per Section 113-B of the Indian Evidence Act, while determining the question whether a person has committed the dowry death of a woman, when it is shown that soon before Crl.Appeal No.603-SB of 2001 9 her death such woman had 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. Therefore, it emerges that the following are the ingredients of the aforementioned provisions:- (1) That the death of the woman caused by any burns or bodily injury or in some circumstances which is not normal; (2) Such death occurs within 7 years from the date of her marriage; (3) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (4) Such cruelty or harassment should be for or in connection with demand of dowry; and (5) is established that such cruelty and harassment was made soon before her death. 25. In Hira Lal and Others Vs. State (Govt. of NCT) Delhi, 2003 (3) R.C.R. (Crl.) 830 (SC), Hon’ble the Supreme Court observed that “The expression ‘soon before her death’ used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period had been indicated and the expression ‘soon before’ is not defined. A reference to the expression ‘soon before’ used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods ‘soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for their possession’. The determination of the period which can come within the term ‘soon before’ is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression ‘soon before’ Crl.Appeal No.603-SB of 2001 10 would normally imply that the interval should not be much between cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence”. 26. In the instant case, the demand cannot be said to be soon before the death as there is no evidence on record with regard to the demand of dowry after 1998. Therefore, the presumption under Section 304-B IPC or Section 113 of the Indian Evidence Act could not be invoked against the appellants. 27. Apart from the absence of demand of dowry soon before the death, there are material improvements in the statements of the complainant, Chander Singh, PW7, and his son, Rohtash, PW8. In the statement of the complainant, the name of the appellant, Ganga Devi has not been mentioned whereas in the statement Rohtash, there is no reference of the demand of colour T.V. Secondly, although it has come in the statement of Dr. Suresh Bakshi, PW9, that it was kerosene oil burns, yet it is not specifically stated that the smell of kerosene oil from the body of the deceased was present. It is established from the record that the appellant tried his best to save the deceased by extinguishing the fire and in the process, suffered burn injuries as noticed by Dr. Rakesh Kumar, PW6, who medically examined the appellant-Naresh Kumar. Thereafter, he removed his injured wife to the General Hospital, Gurgaon and on reference, he further removed her to the Safdurjang Hospital, Delhi, and arranged for her treatment. Therefore, the version given by the appellants seems to be more probable to the version Crl.Appeal No.603-SB of 2001 11 rendered by the prosecution. 28. The demand made at the time of Raksha Bandhan in the year 1998 was of embroidery machine. The appellants were not likely to be benefited from the same. The prosecution has failed to point out any demand after 1998 till the date of occurrence and in the absence thereof, I feel that the ingredients of Section 304-B IPC are not made out in the instant case. 29. The version of the appellant that he made a sincere effort to save the life of his wife finds force from the statement of B R Batra, PW12, Medical Record Technician, Safdarjang Hospital, who has stated that as per the record, the appellant had suffered 20% burns. Krishna Devi, a neighbour of the appellants, was examined as DW1, who stated that the appellant and his father had been trying to push open the door of the washroom. The victim opened the door. By that time, she had been burnt below the knee joint. She also corroborated the fact that the appellant and his father suffered burn injuries in the process of saving the deceased. 30. Resultantly, the present appeal is allowed. The judgment and order passed by the learned trial Court is set aside. The appellants are on bail. They are discharged from their bail bonds. 14.01.2011 (JITENDRA CHAUHAN) mk/atulsethi JUDGE Note : Whether to be referred to Reporter : Yes / No