Crl.A.No.536-DB of 1998 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. Crl.A.No.536-DB of 1998 Date of decision: May , 008 Rajesh Kumar ...Appellant vs. The State of Punjab ..Respondent CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE JORA SINGH. --- Present: Mr.Vinod Ghai, Advocate, for the appellant. Mr.Piyush Jain, Addl. Advocate General Punjab for the respondent. -- J.S.KHEHAR,J. The instant appeal has been filed by the accused/appellant Rajesh Kumar so as to impugn the judgment rendered by the Additional Sessions Judge, Rupnagar, in Sessions Case No. 4 of 1997, decided on 28.10.1998. By the aforesaid judgment, the trial Court held the accused/appellant Rajesh Kumar guilty of the offence under section 304-B of the Indian Penal Code, on account of suicide committed by his wife Sushma Rani because of cruelty and harassment at his hands in furtherance of dowry demand from her soon before her death. The accused/appellant Rajesh Kumar has also impugned the separate order passed on the following day i.e. on 29.10.1998 whereby he he has been sentenced to undergo imprisonment for life under section 304-B of the Indian Penal Code. He has also been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5000/- on account of his conviction under section 498-A of the Indian Penal Code, for subjecting his wife Sushma Crl.A.No.536-DB of 1998 2 Rani to cruelty which had driven her to commit suicide. The prosecution version of the incident emerges from the statement made by Ajmer Ram PW1 to ASI Satpal, which led to the registration of First Information Report bearing No.144 at Police Station, Sadar Ropar, at 8:20 PM on 12.11.1996. It would be pertinent to mention that Ajmer Ram PW1 was the father of the deceased Sushma Rani. In his statement Ajmer Ram PW1 asserted that he was a resident of village Khizrabad, and was engaged in the occupation of washerman. He also stated that he had four sons and two daughters. One of his daughter was Sushma Rani aged 22 years. Sushma Rani was married with the accused/appellant Rajesh Kumar in the year 1994. Out of her wedlock with the accused/appellant Rajesh Kumar, Sushma Rani had given birth to a girl child aged about 11 months. As per the complaint made by Ajmer Ram PW1, on 26.10.1996 he attended the marriage of the brother of the accused/appellant Rajesh Kumar at Kurali. He further stated that he met his son-in-law i.e. the accused/appellant Rajesh Kumar, as well as, his daughter Sushma Rani at the aforesaid marriage. During the marriage, Sushma Rani told her father Ajmer Ram PW1, and his wife i.e. the mother of Sushma Rani, that her husband i.e. the accused/appellant Rajesh Kumar had been pressing her for bringing money from her family, for the purchase of a scooter. She further disclosed to her parents that he also used to give her beatings for the same reason. According to the complainant Ajmer Ram PW1, he expressed his inability to give any money to his daughter, but assured her, that he would make arrangements and will send her the money shortly. According to the complainant Ajmer Ram PW1, in spite of his best efforts, he could not make any arrangement for the demanded money, as he Crl.A.No.536-DB of 1998 3 had already paid a sum of Rs.2000/- to the accused/appellant Rajesh Kumar about 8/9 months back. In view of the above, the accused/appellant Rajesh Kumar continued to harass Sushma Rani on a daily basis. According to the complainant Ajmer Ram PW1, on the date when the complaint was made i.e. on 12.11.1996, the complainant's (Ajmer Ram PW1) two sons Satish Kumar PW5 and Baldev Kumar PW8, had gone to Ropar to the house of their sister Sushma Rani on the occasion of the festival of “bhaiya-dooj”. In their presence, the accused/appellant Rajesh Kumar harassed their sister Sushma Rani and even hit her, whereupon, Sushma Rani required her brothers Satish Kumar PW5 and Baldev Kumar PW8 to convey a message to her father Ajmer Ram PW1, and to her mother, that her husband i.e. the accused/appellant Rajesh Kumar was harassing her. Sushma Rani asked her brothers to request her parents to give money to the accused/appellant Rajesh Kumar for purchasing a scooter. She also desired her brothers to convey to her parents, that in case the money was not given, she would kill herself. On receipt of the aforesaid message from his sons Satish Kumar PW5 and Baldev Kumar PW8, Ajmer Ram PW1 along with his sons Krishan Lal PW2, Satish Kumar PW5, Baldev Kumar PW8, and Tikka Singh Member, Gram Panchayat Khizrabad PW4, left for the matrimonial house of Sushma Rani. After they reached the house of his daughter the accused/appellant Rajesh Kumar on seeing them had ran away. Tikka Singh PW4, as well as, the other persons accompanying him then went to the roof of the house of Rajesh Kumar and found Sushma Rani lying dead in the bath room after burning herself by pouring kerosene on her clothes due to the misbehaviour of the accused/appellant Rajesh Kumar. Ajmer Ram PW1 after seeing his daughter, left his sons to guard her dead body and left for Crl.A.No.536-DB of 1998 4 the police station to lodge a report. On his way, he met ASI Satpal who recorded his statement and forwarded the same to the police station for registration of First Information Report. The statement of ASI Satpal could not be recorded by the trial Court on account of his death during the course of the trial. However, the facts relating to the investigation emerging from the record of the case depict that after recording the statement of Ajmer Ram PW1, ASI Satpal forwarded the aforesaid statement of Ajmer Ram PW1 for registration of a case through Constable Som Nath. Accordingly, a First Information Report came to the registered at 8.20 PM at Police Station, Sadar Ropar. A special report in furtherance of the aforesaid FIR, was signed by the Ilaqa Magistrate at 1.10 AM on 13.11.2006. After recording the statement of Ajmer Ram PW1, ASI Satpal went to the place of occurrence. At the place of occurrence he prepared the inquest report Exhibit PG, as well as, the rough site plan of the place of occurrence. He also arranged for a photographer to take photographs of the place of occurrence, including photographs of the dead body of Sushma Rani, as it was originally found, when he had reached the place of occurrence. He then took into possession vide recovery memo Exhibit PD, one burnt printed terricot suit and one “ pippa” (tin), smelling of petrol, from the bathroom, lying near the deceased Sushma Rani. ASI Satpal also forwarded a request vide Exhibit PF to the Senior Medical Officer, Civil Hospital, Ropar, to arrange for the post mortem examination of the dead body of Suhma Rani. The statements of various persons connected with the occurrence including Ajmer Ram PW1, Krishan Lal PW2, Tikka Singh PW4, Satish Kumar PW5 and Baldev Kumar PW8, were also recorded by Crl.A.No.536-DB of 1998 5 ASI Satpal under Section 161 of the Code of Criminal Procedure. After completing the entire investigation, as well as, other essential police formalities, a challan was presented in the Court of Chief Judicial Magistrate, Rupnagar on 9.1.1997. The Chief Judicial Magistrate, Rupnagar, after examining the facts emerging out of the investigation carried out by the police arrived at the prima facie conclusion that the offences under sections 304-B, 498-A and section 506 of the Indian Penal Code, were made out against the accused/appellant Rajesh Kumar. Since the offence under section 304-B IPC is exclusively trial by the Court of Session, the Chief Judicial Magistrate,Rupnagar, vide his order dated 27.1.1997, committed the case for trial to the Court of Session. The accused/appellant Rajesh Kumar, was charged with the following offences, by the Additional Sessions Judge, Rupnagar on 13.2.1997:- “ That on 12.11.1996 at about 8 P.M in the area of Chhotta Khara you caused the dowary death of your wife Sushma Rani otherwise than in normal circumstances within 7 years of her marriage and soon before her death she was subjected to cruelty and harassment by you in connection with the demand of dowary and you thereby committed an offence punishable under section 304-B IPC and within my cognizance. Secondly at the same time, place and date you Rajesh Kumar subjected your wife Sushma Rani to cruelty which drived her to commit suicide and you thereby committed an offence punishable u/s 498-A IPC and within my cognizance”. The accused/appellant Rajesh Kumar was then confronted with the charges framed against him. He pleaded not guilty, and claimed trial. Crl.A.No.536-DB of 1998 6 During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarized hereunder. The prosecution in the first instance examined the complainant Ajmer Ram PW1. As already noticed hereinabove, the complainant Ajmer Ram PW1 was the father of the deceased Sushma Rani. While deposing before the trial Court Ajmer Ram PW1 reiterated the factual position narrated by him while recording his complaint before ASI Satpal on 12.11.1996. The prosecution then examined Krishan Lal brother of the deceased Sushma Rani, as PW2. While deposing before the trial court he corroborated the statement of Ajmer Ram PW1 on all material particulars. He also corroborated the testimony of Ajmer Ram PW1 to the effect that his father Ajmer Ram PW1 had gone to attend a marriage at Kurali, where he was told by Sushma Rani that the accused/appellant Rajesh Kumar had raised a demand of money for the purchase of a scooter. He also stated that Ajmer Ram PW1 had told him about the aforesaid demand after coming back from the marriage. The statement of Krishan Lal was recorded as PW3. Krishan Lal PW3 being a professional photographer stated that he was summoned by ASI Satpal, to take photographs of the dead body of Sushma Rani. He stated that he had taken three photographs. He placed on record the developed photographs Exhibits P1 to P3 and the negatives thereof Exhibits P4 to P6. He stated that he had handed over the aforesaid photographs, as well as, their negatives to ASI Satpal, who had taken the same in his possession vide recovery memo Exhibit PC. The statement of Tikka Singh was recorded as PW4. It would be pertinent to mention that Tikka Singh PW4 also figures in the complaint made by Ajmer Ram PW1. Tikka Singh Crl.A.No.536-DB of 1998 7 PW4 was a Member of the Gram Panchayat of village Khizrabad when the occurrence under reference took place. Tikka Singh PW4 affirmed that Ajmer Ram PW1 had taken him to the residence of Sushma Rani from village Khizrabad. Tikka Singh PW4 was therefore, personally aware of the consequences of events narrated by Ajmer Ram PW1. While appearing before the trial as PW4, he reiterated the factual position which he had witnessed at the place of occurrence, when he had accompanied Ajmer Ram PW1 to the house of Sushma Rani. On the aforesaid aspect of the matter, Tikka Singh PW4 fully corroborated the testimony of Ajmer Ram PW1. The statement of Satish Kumar was recorded as PW5. It would be pertinent to mention that Satish Kumar PW5, was also the brother of the deceased Sushma Rani. It would be pertinent to mention that as per the complaint of Ajmer Ram PW1, his son Satish Kumar PW5 had gone to the house of Sushma Rani earlier in the day on the occasion of “bhaiya-dooj”. Satish Kumar PW5 narrated the factual position, as had been noticed by him, when he had visited the residence of his sister Sushma Rani on the date of occurrence. He stated that he communicated the message of Sushma Rani to his father and brothers, whereupon, they immediately made arrangements and left Khizrabad for Ropar. The statement of Dr.Surjit Singh, Medical Officer, Civil Hospital, Ropar, was recorded as PW6. It would be pertinent to mention that Dr.Surjit Singh PW6 was one of the doctors out of the “ board of doctors” which had conducted the post mortem examination on the dead body of Sushma Rani on 13.11.1996. While recording his statement before the trial Court, he described the burn injuries, as well as the state/condition of the dead body of Sushma Rani as under:- “.....Burnt body of a female with small like kerosene/patrol from Crl.A.No.536-DB of 1998 8 the body. The burn was 100% except for small clothes of braw left un burnt. Face swollen and burnt. Eye lashes and eye brows burnt eyes slidely bulging out and prominent. Tounge protruding out of the mouth, Swollen and black in colour, lips also swollen black. Neck also burnt all around. So no ligature marks could be marked out extrenally. Chest totally burnt, pubic hairs also burnt. Abdomen also burnt all around. No vacsicle present anywhere on the body. No line of redness present. Burn vary from superficial to deep in degree. Both legs burnt. Right leg tibial bone burnt completely and fractured. Sclp hair also burnt in its front half. On internal examination after dissection larn tracya congested and swollen. No suit present. No fracture seen. Area of the neck shows achhymoais and oedema. Lungs shows oedema and congestion. Plura congested. Alvellia contains black colour flued. Right side of the hear contained black and red colour blood. Left side of the heart was empty. 7th and 8th ribs of right side of the chest was fractured. No alceration present dueodenum and stomach...”. In the opinion of Dr.Surjit Singh PW6 the cause of death of Sushma Rani was strangulation or throttling followed by 100% burns. It was also opined that the burns on the person of Sushma Rani were post mortem in nature. The statement of Dr.Surjit Kataria, Medical Officer, Civil Hospital, Ropar, was recorded as PW7. He was also a member of the board of doctors who had conducted the post mortem examination on the dead body of Sushma Rani on 13.11.1996. The statement of Baldev Kumar was recorded as PW8. It would be pertinent to mention that Baldev Kumar PW8 was also the brother of the deceased Sushma Rani. It would also be pertinent to mention that Baldev Kumar PW8 had accompanied Satish Kumar PW5 to the house of the deceased Sushma Rani on the date of occurrence, on account of the occasion of “bhaiya-dooj”. While appearing before the trial Court Baldev Crl.A.No.536-DB of 1998 9 Kumar PW8 corroborated the testimony of Satish Kumar PW5. The statement of HC Nikka Ram was recorded as PW9. He tendered into evidence his affidavit Exhibit PH. A perusal of his affidavit Exhibit PH reveals that on the asking of ASI Satpal, he had deposited various sealed articles of the case property with the Moharrir Head Constable on 12.11.1996, for safe custody. The statement of SI Shiv Dayal was recorded as PW10. He stated that ASI Satpal had forwarded to him the complaint made by Ajmer Ram PW1 to ASI Satpal on 12.11.1996, and that, he had recorded the FIR Exhibit PA/1 on the basis thereof. Before the trial Court SI Shiv Dayal PW10 identified the signatures of the investigating officer ASI Satpal on various exhibits. He also stated that he had sent the special report to the Ilaqa Magistrate after recording the FIR through Constable Ashraf Khan. SI Shiv Dayal PW10 also stated that after completion of the investigation, the challan was prepared by ASI Balbir Singh. The statement of Ashraf Khan was recorded as PW11. He stated before the trial Court that SI Shiv Dayal had handed over to him the special report, to be delivered to the Ilaqa Magistrate. He stated that he had delivered the special report at the instance of the Ilaqa Magistrate. After recording the statement of Constable Ashraf Khan PW11, the prosecution evidence was closed by order. The statement of the accused/appellant Rajesh Kumar was then recorded under section 313 of the Code of Criminal Procedure. In the first instance, he was confronted with the incriminating evidence appearing on the record of the case. The accused/appellant Rajesh Kumar denied the correctness of the incriminating evidence. In his defence he stated that he was innocent. The trial Court then afforded an opportunity to the Crl.A.No.536-DB of 1998 10 accused/appellant Rajesh Kumar to lead evidence in his defence. The accused/appellant Rajesh Kumar accordingly produced Rajinder Kaur DW1 in his defence. In her testimony before the trial Court, Rajinder Kumar DW1 stated that she was a resident of the same Mohalla of which the accused/appellant Rajesh Kumar is a resident. She also stated that her house is situated right in front of the house of the accused/appellant Rajesh Kumar. She testified that the accused/appellant never demanded dowry from his wife Sushma Rani, or that he ever mal treated his wife Sushma Rani. According to Rajinder Kaur DW1, Sushma Rani had told her that she was perturbed, as she had given her ornaments to her parents, and that, her parents had not returned her ornaments to her. She further explained that she was perturbed on account of the fact that Sushma Rani wanted to wear ornaments on the festival of “bhaiya-dooj” but she had no ornaments to wear on the said occasion. After recording the statement of Rajinder Kumar DW1, on the statement of the accused/appellant Rajesh Kumar, defence evidence was closed by order. The Additional Sessions Judge, Rupnagar, delivered the judgment in Sessions Case No. 4 of 1997 decided on 28.10.1998. The trial Court arrived at the conclusion that the accused/appellant Rajesh Kumar was guilty of the offence under section 304-B of the Indian Penal Code, on account of the unnatural death of Sushma Rani, by way of suicide within seven years of her marriage, on being subjected to harassment at the hands of the accused/appellant Rajesh Kumar for dowry. The accused/appellant Rajesh Kumr was also held guilty of the offence under section 498-A of the Indian Penal Code, on account of the fact that the death of Sushma Rani was based on his willful conduct which had led her to commit suicide. On the Crl.A.No.536-DB of 1998 11 following day i.e. 29.10.1998, the Additional Sessions Judge, Rupnagar, afforded an opportunity of hearing to the accused/appellant Rajesh Kumar on the question of sentence. Having heard the accused/appellant Rajesh Kumar , the trial Court by an order dated 29.10.1998, sentenced the accused/appellant Rajesh Kumar to imprisonment for life under section 304-B of the Indian Penal Code. The accused/appellant Rajesh Kumar was also sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5000/- under section 498-A of the Indian Penal Code. In case of default in payment of fine, the accused/appellant was ordered to undergo further rigorous imprisonment for a period of six months. The evidence produced on behalf of the prosecution, as well as, the judgment rendered by the Additional Sessions Judge, Rupnagar, reveal that while convicting the accused/appellant Rajesh Kumar, reliance was placed on ocular evidence, as well as expert evidence. In so far as the ocular evidence is concerned, the trial Court relied on the statements of Ajmer Ram PW1, Krishan Lal PW2, Tikka Singh PW4, Satish Kumar PW5 and Baldev Kumar PW8. In so far as the ocular evidence is concerned, the same can be divided into three categories. The first dealing with a demand of dowry, and cruelty at the hands of the accused/appellant Rajesh Kumar prior to the occurrence. The second pertains to demand of dowry and cruelty at the hands of the accused/appellant Rajesh Kumar on the date of occurrence (but prior to the occurrence). And the third, relates to the facts immediately after the occurrence. The statement of Ajmer Ram PW1 falls in the first category, inasmuch as, he testified that the father of Sushma Rani had met him at the marriage of the elder brother of the accused/appellant Crl.A.No.536-DB of 1998 12 Rajesh Kumar at Kurali, and had informed him about the demand of a scooter at the hands of her husband i.e. the accused/appellant Rajesh Kumar. According to the statement of Ajmer Ram PW1, he had communicated the aforesaid factual position when he returned to his village Khizrabad to all of his family members. This factual position stands corroborated by the sons of Ajmer Ram who appeared before the trial Court, namely, Krishan Lal PW2, Satish Kumar PW5 and Baldev Kumar PW8. In so far as the second category is concerned, the prosecution had examined two witnesses namely, Satish Kumar PW5 and Bladev Kumar PW8 who asserted that they had gone to the residence of their sister Sushma Rani during the course of the day on the occasion of “bhaiya-dooj” and had seen the accused/appellant Rajesh Kumar insulting and hitting their sister Sushma Rani. They also stated that the accused/appellant Rajesh Kumar in their presence required Sushma Rani to bring more money from her maternal side, for the purchase of a scooter. They also stated that she was held by her hair and taken up the stairs forcibly, and that, she had asked her brothers Satish Kumar PW5 and Baldev Kumar PW8 to send her parents with money, otherwise the family of the accused would kill her. A number of witnesses were examined for the last category, namely, Ajmer Ram PW1, Krishan Lal PW2, Tikka Singh PW4, Satish Kumar PW5 and Baldev Kumar PW8. Despite their extensive cross examination, they affirmed their stand in respect of the factual position disclosed by them pertaining to the earlier demand of dowry, the immediate demand of dowry and cruelty including beatings of their sister Sushma Rani at the hands of her husband i.e. the accused/appellant Rajesh Kumar, and eventually her death by way of suicide at the hands of the accused/appellant Rajesh Kumar. In so far as the Crl.A.No.536-DB of 1998 13 expert evidence is concerned, reliance was also placed on the statements Dr.Surjit Singh PW6 and Dr. Surjit Kataria PW7. In so far as the expert medical evidence is concerned, the same has corroborated the version of the witnesses produced by the prosecution in so far as the unnatural death of Sushma Rani is concerned. In order to assail the findings recorded by the trial Court and in order to establish that the evidence produced by the prosecution is not creditworthy, learned counsel for the accused/appellant has raised a number of pleas. Learned counsel for the accused/appellant has also vehemently contended that there is no credible evidence on the record of the case to establish the guilt of the accused/appellant in respect of the charges levelled against him. Each of the pleas raised by the learned counsel for the accused/appellant Rajesh Kumar is being dealt with in the succeeding paragraphs. The first and the foremost contention advanced by the learned counsel for the accused/appellant is that in order to establish the ingredients of the offence under section 304-B of the Indian Penal Code, it was essential to demonstrate that the death of the wife had taken place within seven years of her marriage. In so far as the instant ingredient is concerned, it is conceded that the same stands satisfied in the present case. The second ingredient, according to the learned counsel for the accused/appellant Rajesh Kumar, for the offence under section 304-B of the Indian Penal Code , is that the death of the wife should be unnatural. Even the instant ingredient, according to the learned counsel for the accused/appellant also stands established in view of the fact that according to the complainant party the death of Sushma Rani had been caused by way of suicide. It is Crl.A.No.536-DB of 1998 14 however, pointed out that the remaining two essential and vital ingredients of the offence under section 304-B of the Indian Penal Code, have not been satisfied, namely, that the wife should have been harassed on account of dowry, and also, that soon before her death the wife had been harassed on account of dowry