CRA No. 1174-SB of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No. 1174-SB of 2006 Vinod Kumar ...... Appellant Versus State of Punjab .......Respondent CRR No. 1706 of 2006 Naresh Kumar ........Petitioner Versus Om Parkash and others .......Respondents Decided on:- 08.09.2011 CORAM HON'BLE MR. JUSTICE L.N.MITTAL Present: Mr. D.S.Brar, Advocate for the appellant. Mr. Kuldeep Singh, Advocate as Amicus Curiae for the appellant. Ms. Gagan Mohini, AAG, Punjab. Mr. B.D.Sharma, Advocate for complainant. **** L.N.MITTAL, J(Oral) Alongwith CRA No. 1174-SB of 2006 preferred by Vinod Kumar convict, by this common order, I will also be disposing of Crl. R. No. 1706 of 2006 preferred by Naresh Kumar, complainant assailing acquittal of Om Parkash and Pushpa Devi, who are parents of Vinod Kumar convict. Prosecution version is that marriage of Poonam Rani @ Kanchan, sister of complainant Naresh Kumar, was solemnized with convict Vinod Kumar on 27.6.2004. Few days after the marriage, accused Vinod Kumar and his parents Pushpa Devi and Om Parkash started demanding CRA No. 1174-SB of 2006 2 Rs.50,000/- from Poonam Rani and started harassing her for the same. Poonam Rani had been telling about it to her family members. On 11.8.2004, Poonam Rani and accused Vinod Kumar came to her parental home at Patiala where also Vinod Kumar demanded Rs.50,000/-. The complainant party arranged Rs.10,000/- and gave it to Vinod Kumar. On 12.8.2004, Vinod Kumar and Poonam Rani went back to Bhawanigarh (place of the accused). On 14.8.2004 at about 6:30 pm, accused Om Parkash informed on telephone that Poonam Rani had committed suicide by hanging. Naresh Kumar and others went to Bhawanigarh where dead body of Poonam Rani was lying in hospital. She committed suicide on account of dowry demand and consequent harassment made by the accused. Naresh Kumar made statement to the aforesaid effect to the police and thereupon FIR was registered and investigated. Inquest proceedings were conducted on the dead body followed by post mortem examination conducted by Dr. P.S.Klair and Dr.Harvinder Kaur. Cause of death was opined to be asphyxia due to ante-mortem hanging. Rough site plan of the place of occurrence was prepared. Photographs of the place of occurrence as well as of the dead body were got snapped. Two pieces of chunni cloth were also seized from the spot. Statements of witnesses were recorded during investigation. All the three accused were arrested on 17.8.2004. Deputy Superintendent of Police also conducted investigation and recommended cancellation of the case. Accordingly cancellation report was presented before Additional Chief Judicial Magistrate(for short 'ACJM'), Sangrur. However, complainant filed protest petition. His statement was also recorded. Cancellation report was not accepted and the case was committed by ACJM, Sangrur to the Court of Session. CRA No. 1174-SB of 2006 3 Charge under Section 304-B of the Indian Penal Code ( for short ' IPC' ) was framed against all the three accused to which they did not plead guilty and claimed trial. To prove its case, prosecution examined seven witnesses. Complainant Naresh Kumar PW1(brother of the deceased) and Kartar Chand PW2(father of the deceased) have broadly stated according to the prosecution version. Dr.P.S.Klair PW3 stated about post mortem examination conducted on the dead body and also stated about cause of death. Bant Singh, Photographer PW4 proved the photographs snapped by him. Balwinder Singh Draftsman PW5 stated that he prepared scaled site plan of the place of occurrence. ASI Bhupinder Singh PW6 stated that in his presence, SI Hardeep Singh had taken into possession two pieces of chunni from the place of occurrence. He also stated about photographs taken at the spot. SI Hardeep Singh PW7 stated about investigation of the case conducted by him. The accused in their examination under Section 313 Cr. P.C broadly denied all the incriminating circumstances appearing against them in the prosecution evidence. However, marriage of the deceased with accused Vinod Kumar was admitted. It was pleaded by Vinod Kumar that the deceased was born, educated and brought up in Patiala whereas the accused are poor persons living in Bhawanigarh. Their living standard is much lower than that of the complainant party. House of the accused is in a new upcoming colony at a deserted place having no source of entertainment CRA No. 1174-SB of 2006 4 like television, cable connection etc. Vinod Kumar used to go to his Saw Mill early in the morning and return home late in the evening. Poonam Rani committed suicide out of frustration. In defence, accused examined six witnesses. Shakuntala Rani DW1 is wife of elder brother of Vinod Kumar accused and daughter in law of the other two accused. She supported the defence version that no demand of dowry was made from the deceased nor she was harassed by the accused. She also stated that the deceased told her that before her marriage, she used to go to a Beauty Parlour at Patiala and fell in love with a boy and wanted to marry him but her parents got her married with Vinod Kumar accused against her wishes. She committed suicide on account of depression for this reason. Sarabjit Kaur DW2 is from the neighborhood of the accused. She stated that living standard of the accused is very modest. The deceased used to remain sad. She told this witness that she had no complaint against her in-laws but she did not like her husband Vinod Kumar and her marriage with him was solemnized against her wishes. Sunder Lal DW3 stated that Jyoti Rani, sister of the deceased, had approached them for the marriage of Kanchan(deceased) with his son Jatinder @ Rinku, but on inquiry, they learnt that Kanchan was ultra modern and was not befitting to their living standard. Om Parkash DW4 is father of Shakuntala Rani DW1. He also broadly supported the defence version. Fakir Chand DW5 stated that the accused never made any extra judicial confession before him. Paramjit Singh Goraya, Deputy Superintendent of Police, DW6 CRA No. 1174-SB of 2006 5 stated that he also conducted investigation of this case and found that there was no harassment or maltreatment of the deceased by any of the accused for dowry. Rather Poonam Rani was not satisfied with her marriage and she did not like her husband and she committed suicide due to frustration. The accused were found innocent. Learned Additional Sessions Judge, Sangrur vide impugned judgment dated 7.6.2006 acquitted Om Parkash and Pushpa Devi of the charge against them giving them benefit of doubt but convicted accused Vinod Kumar under Section 304-B IPC and vide order of even date, sentenced the convict to undergo rigorous imprisonment for ten years. Feeling dis-satisfied, convict Vinod Kumar has filed CRA No. 1174-SB of 2006 assailing his conviction and sentence whereas complainant Naresh Kumar has filed Crl. R. No. 1706 of 2006 impugning the acquittal of Pushpa Devi and Om Parkash. I have heard learned counsel for the parties and perused the case files with their assistance. Learned counsel for the appellant/convict contended that complainant Naresh Kumar and his father Kartar Chand in their statements made in inquest proceedings did not refer to visit of the deceased and Vinod Kumar to their house on 11.8.2004 and payment of Rs.10,000/- to Vinod Kumar at that time and improvement in this regard was made lateron while lodging the FIR. It was also contended that the deceased had been brought up in Patiala, a big city, having sources of entertainment, but the deceased was married in Bhawanigarh, a small town, where accused were residing even away from the town having no source of entertainment in the house and the deceased was also having love affair with some boy and for CRA No. 1174-SB of 2006 6 both these reasons, the deceased committed suicide and there was no demand of dowry and harassment of the deceased by the accused. It was also contended that the demand of Rs.50,000/- was not mentioned in the FIR to be demand of 'dowry'. Attention of the Court was also drawn to statement of Kartar Chand PW2 who deposed that his daughter was happy when she stayed with them for 8/10 days and she was also happy when she came to them on 11.8.2004 and it would depict that she was not being harassed for dowry. Reference was also made to cancellation report submitted pursuant to investigation done by Paramjit Singh Goraya, Deputy Superintendent of Police (DW6). It was contended that prosecution has not examined any person from the locality of the accused. On the other hand, there is defence evidence that the deceased was having love affair with a boy and was also not happy on being married in a poor family. Attention was drawn to statements of Shakuntala Rani (DW1)( Jethani of the deceased) and Sarabjit Kaur (DW2), a neighbour of the accused. It was also argued that Mediator of the marriage has not been examined as witness by the prosecution. On the other hand, learned State counsel contended that statements of Naresh Kumar and Kartar Chand ( brother and father respectively of the deceased) coupled with other evidence are sufficient to prove the guilt of the accused . It was submitted that the deceased died in the matrimonial home just seven weeks after her marriage and the death was by suicide i.e otherwise than under normal circumstances. The deceased was harassed for dowry soon before her death and therefore, all ingredients of the offence of dowry death are proved. Alleged love affair of the deceased with some boy was not even put to the aforesaid two witnesses in CRA No. 1174-SB of 2006 7 their cross examination. Learned counsel for the revision petitioner / complainant contended that there is sufficient evidence against accused Om Parkash and Pushpa Devi also to prove their guilt and their acquittal by the trial Court is not justified. I have carefully considered the rival contentions. In so far as Criminal revision preferred by the complainant against acquittal of parents- in-law of the deceased is concerned, the same cannot be accepted. The deceased and her husband Vinod Kumar had come to the complainant's house on 11.8.2004 where the husband Vinod Kumar made demand of dowry and was paid Rs.10,000/-. So evidence against the husband is stronger than the evidence against his parents. Moreover, even if two views are possible, the view favourable to the accused is to be adopted. In the instant case, the trial Court after analysing the evidence came to the conclusion that prosecution case against accused Om Parkash and Pushpa Devi is doubtful. Accordingly they were given the benefit of doubt and consequently acquitted. Their acquittal cannot be set aside even if and merely because another view of the evidence is also possible. Their acquittal cannot be said to be illegal or perverse so as to warrant interference in revisional jurisdiction. As regards appeal preferred by convict Vinod Kumar, his conviction is well founded. There is sufficient evidence to prove his guilt beyond all reasonable doubt. Statements of Naresh Kumar and Kartar Chand regarding Vinod Kumar could not be impeached in their cross examination. They have specifically stated that even on 11.8.2004 i.e three days before the death of the deceased when Vinod Kumar came to their house alongwith CRA No. 1174-SB of 2006 8 deceased, even then he made demand of Rs.50,000/- and he was paid Rs.10,000/- by the complainant party, but still thereafter the deceased was harassed for the remaining amount. The deceased committed suicide in the matrimonial home just seven weeks after the marriage. Defence version that the deceased was not satisfied with her marriage with the convict or that the deceased was having love affair with some other boy cannot be accepted. In this regard, statement of Shakuntala Rani DW1 cannot be believed because the deceased while living in the matrimonial home would not have disclosed her alleged love affair to anybody in the matrimonial home. The plea of the accused that their living standard is lower than that of the complainant party is also not born out from the evidence on record nor it can be said to be cause of suicide by the deceased just seven weeks after her marriage. There is no improvement in the FIR after the version stated in the inquest proceedings. On the other hand, FIR was lodged prior in time than the inquest proceedings. Version given in the FIR has been noticed in the inquest report while giving brief facts of the case. Consequently even if there is some omission in the statements of complainant and his father recorded during inquest proceedings, it would not make any difference when detailed version had already been recorded in the FIR. In inquest proceedings, cause of death is supposed to be inquired into, which in the instant case was suicide by hanging. Consequently, some omission in the statements of the complainant and his father in inquest proceedings would not make any difference when complainant had already lodged FIR by giving all the facts. The demand of Rs.50,000/-was certainly demand of 'dowry' and CRA No. 1174-SB of 2006 9 it cannot be said that dowry demand has always to be demand in kind and not in cash. It is not even the version of the accused that demand of Rs.50,000/- by them was as loan to be repaid subsequently. On the other hand, for the said demand, the deceased was harassed and consequently she committed suicide just seven weeks after her marriage. All the ingredients of the offence of dowry death are fully proved against convict Vinod Kumar. Statement of Kartar Chand PW2 that his daughter i.e deceased was happy when she came to the parental home would not go against the prosecution version because obviously the deceased would be happy in the parental home while she was being harassed in the matrimonial home. On coming to parental home, she would feel relieved and be happy. Cancellation report recommended by DSP would not help the appellant/convict because his innocence or guilt has to be determined on the basis of the evidence led during trial and not on the basis of the opinion formed by the DSP. On the other hand, the evidence on the basis of which the DSP formed his opinion regarding innocence of the accused has not been led in defence. Statement of DSP P.S.Goraya DW6 is not substantive evidence to prove innocence of the accused. Persons from the neighborhood of the accused would not have deposed against them and could not possibly be examined as prosecution witnesses. Just for this reason, provisions of Section 304-B IPC and Section 113-B of the Evidence Act were inserted by amendment because direct evidence in cases of dowry death is rarely available because everything happens in the matrimonial home where the accused live and there is nobody else to depose against them. Non examination of mediator of the CRA No. 1174-SB of 2006 10 marriage would also not be sufficient to discard the prosecution evidence. For the reason aforesaid, I conclude that the prosecution has led sufficient cogent and credible evidence to prove the guilt of accused Vinod Kumar. His conviction is well founded. Accordingly conviction of appellant Vinod Kumar is affirmed. Learned counsel for the appellant prayed for reduction in sentence. However, the prayer cannot be accepted because the deceased committed suicide just seven weeks after her marriage with the convict who is her husband. Moreover, perusal of the custody certificate reveals that appellant Vinod Kumar had escaped from police custody for which FIR No. 32 dated 10.3.2007 was registered against him under Sections 223 and 224 of the Indian Penal Code and he was convicted in that case on 13.1.2009. In addition to it, appellant Vinod Kumar was released on four weeks' parole on 19.1.2010 and he was due to surrender on 17.2.2010 but is absconding since then i.e for the last one and half years. Keeping in view this conduct and also because the deceased committed suicide just seven weeks after her marriage and the convict is husband of the deceased, I find no justification for reduction in sentence. For the reasons recorded hereinbefore, I find no merit in the Criminal Appeal preferred by convict Vinod Kumar and in Criminal Revision preferred by complainant Naresh Kumar. Accordingly, the appeal and the revision are both dismissed. 08.09.2011 ( L.N.MITTAL) mamta JUDGE