Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1- Crl. Appeal No.D-961-DB of 2006 Date of Decision : 26.08.2011 Smt. Bimla and another ... Appellants Versus State of Haryana .... Respondent 2- Crl.Revn. No.D-287 of 2007 Date of Decision : 26.08.2011 Mahesh Kumar Sharma ... Revision petitioner/complainant Versus Sahab Singh and others .... Respondents - CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK ....... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. J.S. Bedi, Advocate, for the appellants. Mr. Pardeep Singh Poonia, Addl. A.G.,Haryana, for the respondent-State. Mr. Yash Pal, Advocate for the revision petitioner. -- Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --2-- Vijender Singh Malik, J. Smt. Bimla Devi and Ajay appellants have challenged the judgment of their conviction dated 3rd November 2006, for an offence punishable under sections 498-A and 304-B of the Indian Penal Code and order of sentence dated 07th November 2006 passed by learned Additional Sessions Judge, Jhajjar by way of Crl. A. No.961-DB of 2006, while complainant Mahesh Kumar Sharma questioned the acquittal of Sahab Singh and Arun Kumar, respondents no. 1 and 3 vide the aforesaid judgment and order of sentence by the said court by way of Crl. Revision No.287 of 2007. Smt. Bimla and Ajay, appellants have been sentenced by learned trial court as under:- Name of the accused(now appellants) The offence for which conviction was recorded. Sentence awarded Smt. Bimla and Ajay Kumar U/S.498-A IPC Rigorous imprisonment for three years each. Fine of Rs.1000/- each. In default of payment of fine to undergo rigorous imprisonment for three months each. Smt. Bimla and Ajay Kumar U/S 304-B IPC Life imprisonment each. Fine of Rs.2000/- each. In default of payment of fine to undergo rigorous imprisonment for four months each. The substantive sentences were ordered to run concurrently. Since both the appeal and revision petition are arising out of the same judgment and order of sentence, we are deciding the two Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --3-- together by way of this judgment. The case set up by Police Station Line Paar, Bahadurgarh is as under:- Mahesh Kumar Sharma, complainant, a resident of Guna, Madhya Pradesh, has been working as Junior Engineer with Electricity Board, Gwalior. They were four brothers and one sister. Rambir is elder to him, while Dinesh and Ganesh are younger to him. Their names are mentioned in the order of age. They had only one sister named Rakhi, who was married with Ajay Kumar son of Sahab Singh, a resident of Saket Nagar, Tansen Nagar, Gwalior (MP) on 21.02.2002. Sufficient dowry was given in the marriage. However, Sahab Singh, father-in-law, Smt. Bimla, mother-in-law, Arun Kumar, Jeth, Ajay Kumar, husband and Anil Kumar, brother-in-law of Rakhi were not satisfied with the dowry. They used to taunt Rakhi everyday telling her that the dowry given in the marriage of Rakhi was given by a common man those days while their son had been an Engineer. On 06.11.2002, on the eve of Bhaiya Dooj Mahesh Kumar Sharma, complainant and his elder brother Rambir visited their sister Rakhi at Gwalior. Smt. Bimla taunted Rakhi in their presence telling her that if any complaint would have been made regarding dowry in presence of her brothers, she would have died by consuming poison but she was quite a shameless person, who remain unaffected by all these things. She had not been allowing Rakhi to talk to anyone coming from the side of the complainant in solitude. Rakhi used to live as a scared person at her matrimonial home. On 26.11.2002 the complainant received a telephone call from Bahadurgarh that Rakhi Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --4-- had committed suicide. The complainant alongwith his brothers except Dinesh, as also his parents went to Bahadurgarh. On the same day, at about 5.00 PM, telephonic information was received in Police Station Line-Paar, Bahadurgarh that a woman had committed suicide by hanging herself in HNG Colony, Bahadurgarh. On this information, Sube Singh, ASI alongwith other police officials went to the spot. He found Ajay, appellant to be living in quarter No.E-1, HNG Colony, at Bahadurgarh. He entered the quarter and found a woman hanging with the help of her chunni (scarf) to an iron pipe inside the room. As she had been married only on 21.02.2002 i.e. within one year of her death, Ram Sarup, Tehsildar, exercising the powers of Executive Magistrate was called to the spot and in his presence the dead body of Rakhi was brought down. Ajay Kumar, appellant was asked by Sube Singh, ASI to inform the parents of Rakhi by way of telephone. Her family members were then awaited. On 27.11.2002 Mahesh Kumar Sharma, complainant reached Bahadurgarh with his family. He made a statement to Sube Singh, ASI in the terms aforesaid. He suspected that his sister, who had committed suicide, was compelled to take this step by the taunts of the accused regarding dowry. He prayed for action against Sahab Singh, Smt. Bimla, Arun Kumar, Ajay Kumar and Anil. Sube Singh, ASI made his endorsement on the same and had sent the same to the police station, on which, a case was registered for an offence punishable under sections 498-A, 304-B and 406 of the Indian Penal Code. Thereafter, Sube Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --5-- Singh, ASI inspected the spot and prepared a rough site plan thereof. He removed the chunni from the pipe and gave it the shape of a sealed parcel using seal bearing impression 'SS'. It was taken into possession by way of a recovery memo. Statements of the witnesses were recorded. Inquest proceedings on the death of Rakhi were conducted by Ram Sarup, Tehsildar. The dead body of Rakhi was taken to Civil Hospital, Bahadurgarh for post-mortem examination where the Investigating Officer made a written request for the same. After the post-mortem examination, the doctor gave one sealed parcel containing ornaments and chunni. They were taken into possession by way of a recovery memo. Statements of the witnesses were recorded. The dead body of Rakhi was handed over to the parents of the deceased. Sube Singh, ASI had arrested all the accused at the main gate of HNG Colony on 27.11.2002. The dowry articles were recovered in the presence of the Magistrate. The same were taken into possession vide recovery memos Ex.PD and Ex.PE respectively. On completion of the investigation, challan against Sahab Singh, Smt. Bimla, Arun Kumar and Ajay Kumar, accused was prepared by Virender Singh, SI/SHO. Charge against the accused was framed for an offence punishable under sections 498-A, 406 and 304-B of the Indian Penal Code, vide order dated 25.02.2003. The accused pleaded not guilty to the charge and claimed trial. The prosecution has examined ten witnesses in all at the trial. Giving up some witnesses as unnecessary, the prosecution Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --6-- evidence was closed by learned public prosecutor. The accused were examined thereafter in terms of section 313 of the Code of Criminal Procedure. Besides denying the incriminating prosecution evidence put to them in the shape of questions, they have pleaded, in common voice, their innocence and false implication. They have stated that demand for dowry was never made upon the deceased nor she was ever treated in cruel manner. She is even denied to have been taunted for bringing less dowry. It is asserted that on 06.11.2002 on the occasion of Bhaiya Dooj, Smt. Bimla went to the house of her parents at Bharatpur (Rajasthan) and started from Gwalior for Bharatpur at 7.00 AM. According to them, she felt uneasy on the way and she took treatment from District Hospital, Agra and returned to Gwalior on the next evening. It is further asserted that Rakhi had been living with Ajay Kumar, accused at Bahadurgarh from the date of her marriage till her death and that she used to visit Gwalior occasionally. It is further asserted that Sahab Singh retired as Senior Audit Officer in the month of September 2002 and out of his pensionary benefits, he deposited a sum of Rs.2,00,000/- each in the names of his daughters-in-law named Rakhi and Garima, in the post office at Gwalior, in joint account with him. It is further asserted by them that Rakhi was suffering from fits and during those days, she used to become unconscious. It is further added that on 03.08.2002 Rakhi suffered fits at Bahadurgarh and she was managed in the absence of Ajay, accused by her neighbour named Smt. Shanti Devi wife of K.S. Acharya. It is further added that she was taken back to Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --7-- Gwalior by her brother Rambir, on the next day, under the pretext of consulting some psychiatrist at Gwalior. Rakhi is also said to have developed inferiority complex because of her inability to speak/converse in English and she used to talk about this inability with her neighbours. Rakhi is claimed to have been treated by Dr. V.P. Mehla at Rohtak for her fits and that Rakhi was suffering from depression on account of wrong impression she had about her husband Ajay Kumar suffering from incurable brain tumor. It is claimed that on account of this depression, she ended her life in the absence of Ajay Kumar, accused. In defence, they have examined eight witnesses and closed the same. After hearing learned public prosecutor for the State, assisted by learned counsel for the complainant, and learned counsel for the defence, learned trial court has held the appellants guilty for the offence punishable under sections 498-A and 304-B of the Indian Penal Code and giving benefit of doubt to Sahab Singh and Arun Kumar, acquitted them. Hearing on quantum of sentence was given on 07.11.2006 and the sentence detailed as above had been awarded to the appellants. Aggrieved by the aforesaid judgment of their conviction and the order of sentence passed by the trial court, the appellants/convicts have brought this appeal while Mahesh Kumar Sharma, complainant has brought the above mentioned revision petition seeking the relief as stated above. Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --8-- We have heard Mr.J.S. Bedi, Advocate for the appellants, Mr. P.S. Poonia, Addl. A.G.,Haryana, for the respondent-State and Mr. Yash Pal, Advocate for the complainant/revision-petitioner and have gone through the record of the case with their assistance. Learned counsel for the appellants has submitted that the entire case of the prosecution is based on the incident of 06.11.2002. According to him, the prosecution has claimed that on 06.11.2002, on the occasion of Bhaiya Dooj, Mahesh Kumar Sharma, complainant alongwith his brother Rambir went to Gwalior to the matrimonial home of his sister Rakhi, where Smt. Bimla, Sahab Singh and Arun Kumar told them about their not giving Car, Sofa-set, Washing Machine etc. in the dowry. According to him, Smt. Bimla, appellant is stated to have told Rakhi that she remained unaffected even when taunted in the presence of her brothers. She had further stated that had this happened to her, she would have committed suicide. Learned counsel for the appellants has further submitted that ring ceremony of Rakhi was performed in the last week of June 2001 and as admitted by Mahesh Kumar Sharma, PW-1 the accused did not raise demand of any article in dowry from June, 2001 till marriage. According to him, when nothing was demanded on or up to the date of marriage, it is not expected that any such demand would have been made subsequently. He has cited before us the following cases in support of his argument:- “1- Meka Ramaswamy v. Dasari Mohan,1998(1) RCR(Crl) 581, 2 State of Punjab v. Resham Lal & Ors, 2003(1)RCR (Crl) 76, Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --9-- 3- Suvanasingh Tiratsingh Dhanjal v. State of Maharashtra, 2006(1) RCR(Crl.)921, 4- Dalip Kaur & Anr. v.State of Punjab,2005(1)RCR(Crl)479, 5- Ramesh Kumar v. State of Haryana,1999(3) RCR (Crl.) 433” Learned counsel for the appellants has further submitted that Smt. Bimla, appellant was not there at Gwalior on 06.11.2002. According to him, she had gone to Bharatpur to the house of her brother on the eve of Bhaiya Dooj and on the way to Bharatpur, she felt uneasy and had to take treatment from Dr. P.K. Sharma, DW-4 at Agra. According to him, if Smt. Bimla was not present at Gwalior on 6.11.2002, the entire version of the prosecution regarding the incident of 6.11.2002 would become unreliable and the conviction of the appellants would itself be termed as bad. Learned counsel for the appellants has further submitted that Rakhi, deceased had been depressed on account of her own illness as well as her impression of her husband's carrying some incurable brain tumor. He has drawn our attention to various statements of the prosecution witnesses and has specifically invited our attention to the statement of Dr.V.P. Mehla, DW-1, who has claimed to have treated Rakhi for moderate depressive episode. He has further referred to the statement of Mahesh Kumar Sharma, PW-1 who has admitted in his cross-examination that after the engagement ceremony, his wife Poonam had told Rakhi that Ajay Kumar, accused had some health problem. According to him, this health problem was taken by Rakhi as his Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --10-- carrying some incurable brain tumor. According to him, on account of these things, she used to remain depressed and in such a state of depression, she committed suicide. According to him, it had no relationship with any harassment of Rakhi at the hands of appellants for or in connection with any demand for dowry. Learned counsel for the appellants has further submitted that Sahab Singh, after his retirement, had deposited a sum of Rs.2,00,000/- each in the names of his daughters-in-law, one of whom is Rakhi. According to him, had there been any demand of dowry, Sahab Singh would not have done so. He has also submitted that Sahab Singh and father of Rakhi named Ramesh Chander Sharma had been class fellows and known to each other. According to him, this fact has been admitted by Mahesh Kumar Sharma, complainant, PW-1 in his cross- examination. He has further submitted that the other daughter-in-law of Sahab Singh had been kept properly and that would also show that there was no harassment of the deceased at her matrimonial home by any one of the accused persons in connection with the demand of dowry. Mr. Pardeep Singh Poonia, learned Addl. A.G., Haryana, has submitted that this is a case of death within about nine months of the marriage. According to him, none of the decisions cited by learned counsel for the appellants lays down that in case demand is not made on or up to the date of marriage, there could be no demand thereafter. He has submitted that the moderate depressive episode about which Dr.V.P. Mehla, DW-1 speaks, is curable. According to him, there is no evidence Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --11-- on the record to prove that Rakhi had any impression about her husband suffering from incurable brain tumor. He has submitted that no woman would think of committing suicide just after nine months of her marriage for these reasons. Coming to the aspect of alibi of Smt. Bimla, Mr. Poonia, learned Additional Advocate General, Haryana has submitted that the said evidence is not reliable. According to him, the said evidence has been created afterwards to create a false defence. He has submitted that depositing of Rs.2,00,000/- in a joint account in the name of the deceased and Sahab Singh would also not prove that there could be no demand of dowry made upon Rakhi by the appellants and others. He has, thus, submitted that the finding of learned trial court of guilt recorded against the appellants is based on evidence and it does not warrant interference. Learned counsel for the revision petitioner has submitted that the acquittal of Sahab Singh and Arun Kumar is unjustified. According to him, there has been evidence against them, which has not been properly appreciated by learned trial court. According to him, in such a case, Sahab Singh and Arun Kumar could not be acquitted of the charge. The first aspect of the case questioned by learned counsel for the appellants is that the demand in this case is stated to have been made after the marriage while there was no such demand earlier to or at the time of the marriage. Mahesh Kumar Sharma, PW-1 has honestly admitted that during the period from June 2001 till the marriage, the Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --12-- accused did not raise demand of any particular article in dowry. June 2001 as is already mentioned is the month, in which ring ceremony of Rakhi was performed. It is the statement of Mahesh Kumar Sharma as also other witnesses that the appellants and others were not satisfied with the dowry as given by them and that they had expressed their non- satisfaction or displeasure in the very beginning. It is in the evidence that while expressing their dissatisfaction with dowry, they had commented that such type of dowry was even given by ordinary persons to ordinary grooms while Ajay had been an Engineer by profession and deserved more. The complainant and other witnesses of the prosecution have, thus, claimed that soon after the marriage, the dissatisfaction of appellants and others over the dowry had been made known to the bride as well as people on her parental side. The statement of Mahesh Kumar Sharma that from June 2001 till marriage, there was no demand of dowry from the side of the accused, is quickly followed by his statement made voluntarily that after the engagement ceremony on 21.10.2001, the accused had shown dissatisfaction over the articles given to them on the said occasion. In my opinion, there was no conflict between the two parts of the aforesaid statement. Expressing dissatisfaction is something different from raising of demand and, therefore, Mahesh Kumar Sharma cannot be said to have contradicted himself by saying that on 21.10.2001, the accused had expressed their dissatisfaction over the articles given on the occasion of ring ceremony. So, it is not only a case of raising of demand for dowry Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --13-- soon after the marriage but showing their intentions before the marriage. The facts of this case are,therefore,not covered by Meka Ramaswamy 's and other cases (supra). In the reported cases, the evidence was not found by the trial court to be consistent and the accused had been acquitted. These were the appeals against acquittals. Human behaviour cannot be broadly categorized. The human behaviour has multiple shades and people could be found keeping mum in expectation of good dowry and opening their mouths when they find the dowry to be below their expectation. In such a case, they do not wait for any time to pass and start raising demands soon after the marriage. The case in hand is also not one where the financial condition of the father of the deceased was weak as was in Meka Ramaswamy 's case (supra). So the ratio of the above cited cases did have no application to the facts of this case and on the strength of the same, it cannot be held that no demand of dowry could be made by the appellants upon Rakhi after the marriage. The next submission of learned counsel for the appellants is that the very foundation of the prosecution case shatters once it is believed that Smt. Bimla was not there at Gwalior on 06.11.2002 when Mahesh Kumar Sharma and Rambir went there on the occasion of Bhaiya Dooj. It is the case of the prosecution that Mahesh Kumar Sharma and Rambir went to Gwalior, to their sister on 06.11.2002 on the occasion of Bhaiya Dooj. They have stated that Rakhi was taunted sarcastically by Smt. Bimla in their presence. It is true that if Smt. Bimla is shown by evidence to have not been there at Gwalior on 06.11.2002 Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --14-- when Mahesh Kumar Sharma and Rambir visited the matrimonial home of their sister, the prosecution case would crumble down. To prove that Smt. Bimla was not there at Gwalior and that she started from Gwalior on that day at 7.00 AM, had felt uneasiness on the way and took treatment at Agra, the appellants have examined Dr.P.K. Sharma, DW-4 and Kailash Babu Sharma, DW-6, the latter being brother of Smt. Bimla Devi. Dr. P.K. Sharma, DW-4 had brought the summoned record. He had been able to tell the names and other particulars of Smt. Bimla Devi only. He failed to make such a statement regarding the patients examined earlier to or after Smt. Bimla Devi. His statement that entry no.73254 in the summoned record is in his hand shows his interestedness in the matter. He was not expected to give serial numbers on the record of the hospital particularly when he had been a Senior Physician. This shows that this record had been prepared with the sole purpose of being used in the court. There is no evidence of Smt. Bimla Devi having any such health complaint earlier to 06.11.2002 or after that. It is the solitary occasion on which she is said to have suffered that uneasiness or pain in chest. Kailash Babu Sharma, DW-6 is the brother of Smt. Bimla Devi. In this way, he is interested in the success of the defence plea of his sister. Bhaiya Dooj is celebrated in some States by Hindus and unless there was love left between brother and sister, it cannot be expected that the sister would travel a distance of more than 100 KMs by taking train, as in this case, which had to be changed at Agra. Crl. Appeal No.D-961-DB of 2006 & Crl.Revn. No. 287 of 2007 --15-- In the cross-examination, Kailash Babu Sharma, DW-6 has stated that he was not present at the time of initial settlement of marriage and so he could not tell as to what was settled. If he would have been close or dear to his sister, he would have been called to attend the occasion of settlement of the marriage of son of his sister. The fact that he was not called to attend that function, would show that he was not so close to his sister and there was less possibility of Smt. Bimla Devi going to her brother on the occasion of Bhaiya Dooj. Even if he was not called to attend the occasion of settlement of the marriage, he would have been told as to what was settled. His not being told about it also shows that the occasion of Bhaiya Dooj had lost its relevance in the relations between Kailash Babu Sharma and Smt. Bimla Devi, appellant. So reliance cannot be placed on the statements of Dr. P.K. Sharma, DW- 4 and Kailash Babu Sharma, DW-6 and when the presence of Smt. Bimla Devi at Gwalior on 6.11.2002 could not be shown to be doubtful, the statements of Mahesh Kumar Sharma and Rambir could not be said to have become doubtful for this reason. Learned counsel for the appellants has also assailed the case of the prosecution on the ground that Rakhi was suffering from depression and on that account, she had committed suicide and that her suicide had no connection with any demand for dowry. The defence has tried to