Crl. Appeal No. 324-SB of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 324-SB of 2008 Date of Decision : September 22, 2011 Amar Singh .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Lokesh Sinhal, Advocate for the appellant. Mr. Anil Kumar, DAG, Haryana. * * * L. N. MITTAL, J. (Oral) : Convict Amar Singh has filed the instant criminal appeal impugning judgment of conviction dated 04.12.2007 and order of sentence dated 06.12.2007 recorded by learned Additional Sessions Judge (I), Faridabad, thereby convicting the appellant Amar Singh under Section 304- B of the Indian Penal Code (in short – IPC) and sentencing him to undergo rigorous imprisonment for seven years and to pay fine of Rs.2,000/- and in default thereof, to undergo rigorous imprisonment for three months, whereas appellant's parents and co-accused Smt. Prem and Sukh Ram have Crl. Appeal No. 324-SB of 2008 2 been acquitted. Prosecution case is that marriage of Poonam (since deceased) was solemnized with Amar Singh – accused-appellant on 21.06.2003. Out of this wedlock, a daughter was born eight months prior to the occurrence. The appellant and his parents and two younger brothers Vikram and Mukesh had been making demand of motorcycle and had been torturing the deceased Poonam for the same as they were not satisfied with the dowry given to her. About twenty days before the occurrence, Poonam went to her parental home and told that since the complainant Ram Sahai (father of Poonam) had not fulfilled the demand of motorcycle, she had been thrown out of the matrimonial home by the appellant and his parents and younger brothers after torturing her badly and her life had been made miserable. She was being taunted by them continuously. About two months before the occurrence, Amar Singh – appellant had fractured his both feet on falling from roof. On receiving repeated telephone calls from him, Poonam and her daughter were sent to her matrimonial home along with complainant's son Rakesh (brother of Poonam) on 13.08.2006. However, all the three accused tortured her there. On 15.08.2006, she was set on fire by the three accused and Vikram and Mukesh. Rakesh informed his father Ram Sahai about it on telephone. On 15.08.2006, telephonic message was received in Police Post regarding admission of Poonam in Escorts Medical Center, Faridabad with Crl. Appeal No. 324-SB of 2008 3 burns. Thereupon, ASI Anand Kumar, along with police officials, reached the said hospital, where it was told that Poonam had been referred to Safdarjung Hospital, Delhi. The police party went to Delhi, where Ram Sahai made statement, on the basis of which, instant FIR was registered. Poonam died on account of burns. Investigation was conducted. Statements of witnesses were recorded. Inquest proceedings were conducted on the dead body. Post-mortem examination was also conducted revealing that cause of death was shock following ante-mortem thermal burn injuries. On completion of investigation, report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) was presented for prosecution of the appellant-accused Amar Singh and his parents Prem and Sukh Ram under Section 304-B IPC and holding Vikram and Mukesh to be innocent. Charge under Section 304-B IPC was framed against all the three accused i.e. appellant and his parents. They pleaded not guilty and claimed trial. To prove its case, the prosecution examined 11 witnesses. Ram Sahai – complainant (PW-1) and his son Rakesh (PW-2) have broadly stated according to the prosecution version. Manoj Kumar – Draftsman (PW-3) stated that he prepared scaled site plan in this case. Constable Zile Singh (PW-4) stated that he gave special report Crl. Appeal No. 324-SB of 2008 4 of the case to different authorities including Illaqa Magistrate. ASI Anil Kumar (PW-5) and Inspector Ramesh Kumar (PW-6) stated about investigation of the case conducted by them. Dr. Hilal Ahmad (PW-7) from Escorts Hospital, Faridabad stated about medico-legal examination of Poonam. She was having superficial to deep burns on the whole body except pubic area and lower abdomen i.e. about 90% burns. She was referred to Safdarjung Hospital, Delhi. Intimation was sent to the police. Dr. Prem Kumar (PW-8) stated that he conducted post-mortem examination on the dead body of Poonam. She was having 95% burns. Smell of kerosene was present. Death was due to shock following ante- mortem thermal burn injuries. Dr. Noor Islam Ahmed (PW-9) proved death summary of Poonam prepared by him. Vishvender Singh – SDM (PW-10) proved inquest report prepared by him. Dr. Madhubari Vathulya (PW-11) also stated about medical examination of Poonam in Safdarjung Hospital, Delhi. She was having 95% thermal burns. The accused, in their examination under Section 313 Cr.P.C., denied all the incriminating circumstances appearing against them in the prosecution evidence. It was alleged that Amar Singh fell from roof on Crl. Appeal No. 324-SB of 2008 5 22.06.2006, while at work. His both legs were fractured and he was unable to move. Poonam left the matrimonial home after picking up quarrel. She wanted to live in the matrimonial home with her injured husband separately from her in-laws. Rakesh – brother of Poonam forcibly wanted to take her back from the matrimonial home and for this reason, Poonam committed suicide. In defence, the accused examined two witnesses. Om Parkash (DW-1) stated that marriage of Poonam with Amar Singh was a simple and dowry-less marriage and there was no demand of dowry either at the time of marriage or after the marriage. Accused never harassed the deceased. Dr. Rakesh Handa (DW-2) stated that Amar Singh was admitted in their Hospital on 22.06.2006 and discharged on 04.07.2006. He had multiple fractures in both feet with alleged history of fall from building while at work. His right foot was operated upon and left foot was plastered for 1½ months. Learned Additional Sessions Judge, Faridabad, vide impugned judgment dated 04.12.2007, acquitted accused Prem and Sukh Ram, but convicted Amar Singh under Section 304-B IPC and vide order dated 06.12.2007, sentenced convict Amar Singh to undergo rigorous imprisonment for seven years and to pay fine of Rs.2,000/- and in default thereof, to undergo rigorous imprisonment for three months. Feeling Crl. Appeal No. 324-SB of 2008 6 aggrieved, convict Amar Singh has preferred the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant vehemently contended that Rakesh (PW-2) – a material witness has made improvement in his statement in the Court over his statement Ex.D-A recorded under Section 161 Cr.P.C. during investigation. It was pointed out that in his statement Ex.D-A, Rakesh did not state about beating of the deceased by accused on 14.08.2006, nor did he state that Amar Singh had set the deceased on fire. Similarly, Rakesh in his statement Ex.D-A, did not state about dowry demand except that his father Ram Sahai – complainant had told him about the demand of motorcycle. It was also contended that Amar Singh, having suffered fractures in both legs, was even unable to move and thus, he was not involved in burning of the deceased. It was also alternatively argued that since there was no demand of dowry or harassment for the same, the case would, at best, fall under Section 306 IPC. On the other hand, learned State counsel contended that all the prosecution witnesses have supported the prosecution case and their statements are sufficient to prove the guilt of the appellant for the offence of dowry death punishable under Section 304-B IPC. I have carefully considered the rival contentions. Statements of Ram Sahai and Rakesh (father and brother Crl. Appeal No. 324-SB of 2008 7 respectively of the deceased), coupled with other evidence, are sufficient to prove the guilt of the appellant beyond reasonable doubt. Both of them have stated about demand of dowry by the appellant and harassment of the deceased by him for the same. It is undisputed that death of Poonam occurred almost 03 years and 02 months after her marriage with the appellant i.e. within seven years of the marriage. It is also undisputed and also established by cogent evidence that the death was by burns. The other essential ingredient of the offence of dowry death, which is controverted by learned counsel for the appellant, is regarding demand of dowry and harassment for the same soon before her death. However, this ingredient is also fully proved because Poonam had come to her parental home just about 20 days before the occurrence and told that she had been turned out of the matrimonial home after being tortured on account of non-fulfillment of dowry demand of motorcycle by the accused. She also told that she was being taunted and tortured in the matrimonial home and her life had been made miserable by the accused. She was taken to the matrimonial home on 13.08.2006 i.e. just two days before the death and even during this period of two days, she was subjected to torture and harassment for non-fulfillment of the demand of dowry. There is thus ample evidence to depict that there was demand of dowry from the deceased by the appellant, who harassed her for the same soon before her death. This ingredient of the offence of dowry death is fully established. Crl. Appeal No. 324-SB of 2008 8 As regards alleged improvement made by Rakesh in the witness-box over statement Ex.D-A made during investigation, the same did not effect the fabric of the prosecution case because all the said allegations had been mentioned in the FIR itself. Consequently, if some of the averments were omitted in statement Ex.D-A of Rakesh during investigation, it would not make any difference because the said allegations were mentioned in the FIR, which was registered before recording of statement Ex.D-A of Rakesh. Rakesh was aged about 12 years only, when he appeared in the witness-box. Consequently, if he did not mention some details in his statement Ex.D-A made to the police during investigation, it would not make any material difference because the said details had already been mentioned in the FIR by complainant Ram Sahai. The contention that Amar Singh was unable to move on account of fractures in his both legs cannot be accepted because the fractures had taken place on 22.06.2006, whereas the occurrence took place on 15.08.2006 i.e. 01 month 24 days after the fractures. During this period, the fractures got re-united and healed and the patient was able to walk, although may not be completely cured. Even according to Dr. Rakesh Handa (DW-2), who had treated the appellant Amar Singh for fractures, his right foot had been operated upon and left foot was plastered for 1½ months only. Thus, even the left foot must have been de-plastered before the occurrence. Moreover, even if it be assumed that the deceased was not set Crl. Appeal No. 324-SB of 2008 9 on fire by the appellant, it would not make any difference because the appellant has not been convicted for murder under Section 302 IPC. On the other hand, appellant has been convicted for offence of dowry death under Section 304-B IPC and for this purpose, death caused by burns or bodily injury or otherwise than in normal circumstances is an ingredient and it is not the requirement of this offence that the accused himself should have caused burns or bodily injury or other cause of death. Even if it was suicide, even then it would come within the purview of dowry death, if other ingredients of the said offence are established, as established in the instant case. In this view of the matter, statement of Rakesh made during investigation omitting to specifically name the appellant for setting the deceased on fire would also pale into insignificance because it is not the requirement of ingredients of dowry death that the appellant should have himself set the deceased on fire. Alternative contention of counsel for the appellant regarding conviction of the appellant for offence under Section 306 IPC (instead of Section 304-B IPC) also cannot be accepted. For the said offence also, there had to be abetment by the appellant to force the deceased to commit suicide. Even if the said abetment was on account of harassment of deceased for dowry, as established by the prosecution evidence, the case would thus squarely fall within the purview of Section 304-B IPC as all ingredients thereof stand established. Consequently, the appellant cannot be Crl. Appeal No. 324-SB of 2008 10 convicted under Section 306 IPC instead of conviction under Section 304-B IPC. It may be added that the defence version is self contradictory. The accused have alleged that the deceased wanted to live with the appellant in the matrimonial home separately, but her brother Rakesh was forcibly taking her back to the parental home and for this reason, she committed suicide. However, if the deceased wanted to live with the appellant in the matrimonial home, there is no reason why her father or parental family would forcibly take her back to parental home. Obviously, parental family of the deceased would have honoured the wish of the deceased to live in the matrimonial home. There is also no evidence led by the accused in support of their aforesaid defence version that Rakesh was compelling the deceased to go back to parental home and for this reason, the deceased committed suicide. As a necessary corollary of the discussion aforesaid, I find that the guilt of the appellant Amar Singh for the offence of dowry death punishable under Section 304-B IPC is fully proved beyond reasonable doubt. Accordingly, impugned judgment of conviction of the appellant is upheld. As regards quantum of sentence, minimum sentence of imprisonment for seven years has been awarded to the convict, and therefore, the same does not warrant any modification or reduction. Crl. Appeal No. 324-SB of 2008 11 However, Section 304-B IPC does not provide for imposition of sentence of fine. Consequently, the sentence of fine of Rs.2,000/- awarded by the trial Judge is unsustainable and is, therefore, set aside. Subject to modification in sentence regarding fine, the instant criminal appeal is dismissed. September 22, 2011 ( L. N. MITTAL ) monika JUDGE