IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.884-SB of 1997 Date of decision: 20th January, 2010 Ved Pal … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Azad Singh, Advocate for the appellant. Ms. Hem Lata Balhara, Assistant Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Indrawati daughter of complainant Sheelawati PW-4 was married to the appellant Ved Pal. The marriage was solemnized on 5th April, 1992. Indrawati died an unnatural death on 6th October, 1994. The cause of death was poisoning, as Chemical Examiner reported that in the viscera, halogenated hydro carbon compound insecticide was found positive. The trial Court acquitted accused Reshma and Salochana, and held the appellant guilty of offence under Section 304-B and 498-A IPC. The appellant was sentenced to undergo rigorous imprisonment for eight years under Section 304-B IPC and rigorous imprisonment for one year under Section 498-A IPC. Reshma acquitted accused was mother of present appellant Ved Pal, and Salochana was his step sister. The appellant along with the acquitted accused, was named in case FIR No.271 dated 12.10.1994 registered at Police Station Narnaund Criminal Appeal No.884-SB of 1997 under Sections 304-B and 498-A IPC. Sheelawati mother of Indrawati got recorded her statement Ex.PG to ASI Ishwar Singh PW-8 on 12th October, 1994 at 9.30 p.m. It was stated that Sheelawati was resident of village Jodhkan. Her husband had expired about six years ago. She had got one son Kishan Singh and one daughter Indrawati aged 22 years. About 2 ½ years ago, from the day, FIR was lodged, her daughter Indrawati was married with Ved Pal appellant according to the Hindu Vedic rites. At the time of marriage, she had given various articles in the dowry, the list of which has been given in the statement. On the second day of marriage, when her daughter returned to the house, she stated that her in-laws were unhappy over the dowry articles given at the time of marriage and have made more demand. After the death of Surja Ram father of the appellant, his mother Reshma performed Kareva with Bir Singh and one daughter Salochana was born. It was stated in the FIR that Bir Singh, Reshma, Salochana daughter of Reshma and the appellant used to live together. Indrawati, daughter of complainant came for a customary return trip after the marriage, and was again given seven ladies suits and seven blankets. Thereafter, Indrawati came to meet her mother complainant after six months. She revealed that her husband Ved Pal, sister-in-law Salochana and mother-in-law Reshma harass her and give beatings for bringing inadequate dowry and have demanded Rs.4000/-. Ved Pal came to take back Indrawati. At that time, Rs.4000/- were given to him. 1 ¼ year ago Indrawati had delivered a male child at the house of her mother. On that occasion, Reshma mother-in-law of Indrwawati came and brought Ghee. At that time, Reshma complained to complainant’s husband’s elder brother Bhisham Bir that at the time of marriage adequate dowry was not given and now at the time of delivery of child, on the occasion of Chhuchhak gold ring should be given to her and her son Ved Pal and silver Kara to the newly born grandchild, otherwise, Indrawati will 2 Criminal Appeal No.884-SB of 1997 not be kept at home. The complainant under duress gave one gold ring, silver Kara, 21 ladies suits and 9 blankets in the Chhuchhak and sent her daughter to her matrimonial home. After few days Kishan Singh son of the complainant went to meet his sister, then she disclosed to her brother that she had been harassed and given beating by her husband, mother-in-law and sister-in-law and Rs.5000/- were demanded. The complainant arranged for Rs.5000/- and sent the same to Ved Pal through her son Kishan Singh. Ved Pal appellant, six months prior to the occurrence, had opened a shop of sale of iron at Narnaund. 20 – 25 days before the occurrence, Indrawati came to meet her mother and disclosed that she had been harassed by her husband, mother-in-law and sister-in-law and they were demanding Rs.10,000/-, as adequate dowry was not given at the time of marriage. This fact was told by Indrawati to her father’s elder brother Bhisham Bir. The complainant being widow could not satisfy this demand. The complainant along with her daughter and son went to village Behbalpur to narrate the matter to her brother Balwant Singh. on 5th October, 1994, Balwant Singh brother of the complainant went to the house of the appellant and left Indrawati there. He made the accused understand that the complainant being poor person was not able to satisfy the demand of the appellant. On 6th October, 1994 at 7.00 p.m. Ran Singh son of Kishan Lal informed Indrawati had died due to stomach pain. The complainant along with her son Kishan Singh reached Police Station Narnaund, raised suspicion regarding death of Indrawati and after making enquiries came to the conclusion that her daughter Indrawati had been murdered. The above said statement Ex.PG was sent by ASI Ishwar Singh after making his endorsement Ex.PG/1 and thereafter, formal FIR Ex.PG/2 was registered. 3 Criminal Appeal No.884-SB of 1997 The matter was investigated and report under Section 173 Cr.P.C. was submitted. The appellant, along with Reshma and Salochana, was charged for offences under Section 498-A and 304-B IPC. Accused pleaded not guilty and claimed trial. Shamsher Singh Draftsman Hansi appeared as PW-1 and proved scaled site plan Ex.PA. Dr. Urmil Dhattarwal PW-2 on 7th October, 1994 conducted autopsy and had sent viscera to Chemical Examiner. On receipt of report of the Chemical Examiner Ex.PD, she opined that cause of death in this case was due to poison as indicated in report Ex.PD. The Chemical Examiner stated that in the viscera, halogenated hydro carbon compound insecticide was found positive. Chaman Lal PW-3 had tendered his affidavit Ex.PF to prove link evidence. Sheelawati appeared as PW-4. In her examination in chief, she reiterated what was stated in the FIR. In cross examination, she stated that her husband died before the marriage of Indrawati. He had left behind 1 ½ acres of land. She further stated that on receipt of information, she reached the house of the accused, Reshma was present there and other two accused were not available. She further stated that police came at about 10.00 a.m. When she went to Narnaund, 4/5 persons accompanied her. The police had not recorded their statement. Kishan Singh brother of the deceased appeared as PW-5. He reiterated what was stated by his mother Sheelawati PW-4. In cross examination, he stated that about Rs.30/35 thousand were spent on the marriage. He stated that they had not given articles as demanded by the accused according to their free will but had to accede to the demands of the accused. However, he submitted that Ved Pal had not made demand 4 Criminal Appeal No.884-SB of 1997 in person. He stated that the amount of Rs.4/5 thousand was not borrowed or withdrawn from the Bank but it was lying at house. Balwant Singh, maternal uncle of the deceased appeared as PW-6. He stated that on 5th October, 1994, he had taken Indrawati to the house of the accused and left her there. On 6th October, 1994, in the morning he returned to village Behbalpur and in the evening information was received that Indrawati had died. Mahender Singh SI PW-7 received statement Ex.PG along endorsement Ex.PG/1 made by Ishwar Singh, ASI and had recorded formal FIR Ex.PG/2. Ishwar Singh, ASI PW-8 stated that on 7th October, 1994, he was posted as ASI in Police Station Narnaund. On that day, Kishan Singh PW along with Balwant and Mange Ram came to the Police Station and made a statement, and on the basis of the same he had recorded DDR No.3, Ex.PH. He along with these persons, went to the spot, where dead body of Indrawati was lying. He prepared inquest report Ex.PB, submitted application Ex.PB/1 for post-mortem examination, collected sealed parcel containing viscera and had deposited the same with Moharrir Head Constable. On 12th October, 1994, when he was posted at Police Station Narnaund, Sheelawati came and made her statement Ex.PG. This witness in cross examination, admitted that at the time of inquest report, Ved Pal and Reshma were present. PW-9 Inspector Ram Dhan Singh stated that on 30th October, 1994, investigation of the case was entrusted to him. He proved various aspects of the investigation, including arrest of the accused and submission of report under Section 173 Cr.P.C. All incriminating evidence was put to the accused and their statements under Section 313 Cr.P.C. were recorded. They denied the allegations. Appellant Ved Pal gave following version: 5 Criminal Appeal No.884-SB of 1997 “I am innocent. Smt. Reshma accused contracted Karewa marriage with Bir Singh and co-accused Sulochna was born out of that wedlock. I am the only son of Smt.Reshma. I wanted to share some amount in the marriage of Sulochna but deceased Indrawati resisted to it and, was instigating that you should take up separate residence from my mother Reshma and also pressing me not to give share of marriage amount and threatened to finish her life in case I allowed my mother and sister to reside with me. We never demanded any dowry nor caused any harassment or cruelty to Indrawati in any manner Nor any kind of dowry articles or amount in lieu of it was paid to us. Indrawati was living a happy married life.” Thereafter, accused led defence evidence. Bhisham Bir real uncle of the deceased (father’s elder brother) appeared as DW-1. He stated that Indrawati had never made any complaint to him against Ved Pal and his family members. He further stated that during the entire matrimonial life, deceased had made no grievance against the accused. Bahadar Singh, Registered Medical Practitioner appeared as DW-2. He stated that on 6th October, 1994 two children came to his Clinic and on their asking he had gone to the house of the deceased and examined Indrawati. He stated that she was vomiting. She told him that she had taken water from the drain and thereafter, she was not feeling well. This witness advised accused to take Indrawati to the hospital. Chander Singh DW-3 stated that he heard hue and cry raised in the village that Indrawati wife of Ved Pal had consumed insecticide. This witness further stated that after 8/10 days of the occurrence, a person in relation of the deceased posted as DSP came and demanded Rs.50,000/- to settle the matter. Raje Ram Lamberdar of the village of accused appeared as DW-4 and stated that Indrawati had consumed insecticide. She was taken to the doctor practicing in the village. The doctor gave two 6 Criminal Appeal No.884-SB of 1997 injections to Indrawati, but Indrawati died and information was given to her maternal uncle. After conclusion of the evidence, trial Court had acquitted Reshma and Salochana. The trial Court further held that there was a demand of dowry. The deceased died within seven years of her marriage. She committed suicide and appellant was responsible. Mr. Azad Singh, appearing for the appellant, has stated that in the present case, marriage was solemnized in the month of April, 1992. The deceased is said to have died on 6th October, 1994. Immediately, information was relayed to the mother and brother of the deceased by the accused. It is submitted that FIR was lodged on 12th October, 1994, i.e. after a delay of six day and the delay was used for consultations and deliberations to concoct story of demand of dowry. It is further submitted that it is stated in the FIR that the complainant and the deceased had said everything to Bhisham Bir. Bhisham Bir appeared as a defence witness and specifically stated that the deceased never complained regarding the demand of dowry on the part of the accused. Rather, the defence witness had stated that accused had never demanded dowry. Mr.Azad Singh has submitted that the deceased was the real niece of Bhisham Bir DW-1. Counsel has further submitted that conduct of the accused in taking the deceased to DW-2 Bahadar Singh, Registered Medical Practitioner and thereafter to Civil Hospital proves the conduct of a person who is not guilty. Learned counsel has further submitted that taking into consideration the delay in lodging of the FIR, statement of DW-1 Bhisham Bir and conduct of the accused, it can be safely inferred that no offence under Section 304-B IPC is made out. Counsel has further urged that in the present case, demand if any, was made at the time of birth of child when the Chhuchhak ceremony was to be celebrated and such a demand cannot be construed as dowry, therefore, essential ingredients of section 304-B IPC are lacking. 7 Criminal Appeal No.884-SB of 1997 It is further contended that there are omnibus, general and vague allegations against the appellant and acquitted accused. It is submitted that when these witnesses have not been believed qua the acquitted accused, the same cannot be relied against the appellant also. Counsel has further submitted that there is no demand of any dowry article but only Rs.10,000/- were demanded when the appellant had to open his shop and the same can be construed as financial assistance but not dowry. Counsel has relied upon a judgment of Hon’ble Apex Court rendered in ‘Narayanamurthy v. State of Karnataka’ 2008(2) RCR (Criminal) 969, wherein it was held that customary payments in connection with birth of child or other ceremonies do not come within ambit of dowry. Ms. Hem Lata Balhara, Assistant Advocate General, Haryana, has submitted that witnesses are trustworthy and the trial Court has rightly placed reliance upon their testimony, therefore, conviction and sentence recorded by the trial Court be maintained. I have given my thoughtful consideration to the rival submissions made by counsel for the parties. In the present case, right from the day one, the accused were not satisfied with the dowry given in the marriage and at first opportunity they made grievance that the dowry given at the time of marriage was inadequate. On the very next day of marriage, when the deceased came to meet her mother, she stated that the accused were not satisfied with the dowry. At that time, complainant had given ladies suits and blankets to make accused happy. After six months of marriage, again demand was raised and Rs.4000/- were paid by the complainant. At the time, when deceased had given birth to a child, gold and silver ornaments were demanded. Thereafter, accused had demanded Rs.5000/-. The said amount was paid. Six months before the occurrence, Rs.10,000/- were demanded. Inability of the complainant to satisfy this demand had annoyed the accused. They kept brooding and 8 Criminal Appeal No.884-SB of 1997 were sulking that at the time of marriage, less dowry was given. This Court cannot loose sight of the fact that PW-6 Balwant Singh maternal uncle of the deceased took the deceased to the house of her in-laws on 5th October, 1994 and requested the accused that Indrawati be rehabilitated in the house, as they are not in a position to pay Rs.10,000/-. On 6th October, 1994 Balwant Singh returned and on the same day in the evening information of death of the deceased was received. In these circumstances, “soon before” cannot be taken in isolation. Right from the day of marriage till the deceased committed suicide, the grievance of the accused that dowry given at the time of marriage was inadequate was persisting. Unending demands were raised from time to time only on the pretext that at the time of marriage, dowry given was inadequate. Therefore, depending on facts and circumstances of the each case, the Court has to determine whether the demand raised was soon before the death or not. In the present case, as stated earlier, accused were insisting that inadequacy in the dowry be made good. After gold ornaments were given in the ceremony when a male child was born, still more amount was being demanded. Thus, in the present case, ingredients of offence are fully made out (a) the deceased died unnatural death, (b) death was within seven years of marriage, (c) there was a demand of dowry, and (d) the death was in the circumstances other than normal. The argument that these allegations have not been believed qua the acquitted accused, therefore, appellant should be acquitted, cannot be accepted as other accused have been granted benefit of doubt, and thus, the trial Court had not disbelieved the witnesses PW-4 Sheelawati, PW-5 Kishan Singh and PW-6 Balwant Singh. At this stage, Mr.Azad Singh has submitted that the trial Court has awarded eight years of rigorous imprisonment to the appellant and normally minimum sentence of seven years should be awarded. Neither 9 Criminal Appeal No.884-SB of 1997 there was any compelling reason nor there was any aggravating circumstance to award eight years rigorous imprisonment. I find merit in this submission. Upholding the conviction of the appellant, sentence of eight years rigorous imprisonment awarded to him is reduced to seven years rigorous imprisonment. For doing so, this Court is also conscious that appellant has suffered a protracted trial for more than fifteen years. With the modifications in the sentence noticed above, present appeal is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE January 20, 2010 rps 10