Criminal Appeal No.842-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.842-SB of 1998 Date of decision : 19.8.2008 Pirthi and others .....Appellants Versus State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Aman Chaudhary, Advocate for the appellants. Mr. S.S. Mor, Deputy Advocate General, Haryana for the respondent-State. Mr. Rahul Vats, Advocate for the complainant. S. D. ANAND, J. Appellants father-in-law, husband, brother-in-law and mother-in-law respectively of deceased Kamlesh have filed the present appeal against their indictment by the learned Trial Judge for offences under Section 304-B and 498-A IPC. For the former offence, they were sentenced to undergo rigorous imprisonment for a period of seven years each. For the latter offence, they were sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- each. In default of payment of fine, the appellants were ordered to undergo further rigorous imprisonment for a period of two months each. The (substantive) sentences were ordered to run concurrently. Criminal Appeal No.842-SB of 1998 -2- **** Deceased Kamlesh, a daughter of Mange Ram PW-3 and sister of PW-4 Suresh, was married to appellant Balwan about four years prior to the impugned episode. However, no issue was born out of their union. The entire family was putting up in a house situated in the fields in the area of Barwala. Appellant Balwan used to commute daily to Hisar for purpose of learning tailoring. On 19.11.1995, a thatched hut belonging to appellants caught fire. The appellants were assisted by those living in the neighbourhood in extinguishing the fire. However, deceased Kamlesh did not render any help in extinguishing the fire. She busied herself in procuring fodder from the nearby fields. Appellant Pirthi and Chhana made a grievance in that behalf by lodging a protest with Kamlesh. However, they forgot all about it after some time. On 24.11.1995, Balwan woke up Kamlesh at about 5.00 A.M. to prepare breakfast for him as he was to go to Hisar. However, deceased Kamlesh left the house on some pretext. When she did not return home for quite some time, the appellants went over to the fields and gave out a call in her name. In the search process, they reached near a well which was situated along the railway track. There, they found the shoes and a shawl belonging to Kamlesh lying nearing the well. They suspected that Kamlesh had fallen into the well. Pirthi went over to Dhani Garan and gave information to Sarpanch Ram Singh and few others, all of whom accompanied him to the well afore-mentioned. Dead body of Criminal Appeal No.842-SB of 1998 -3- **** Kamlesh was taken out of the well. Manjit and Ex-Sarpanch Gugan Ram were left to guard the dead body; while Pirthi went over to Police Station, Barwala and lodged a DDR (Ex. PF) with the Police of Barwala which got into action. The Investigating Agency got post-mortem examination conducted on the dead body of Kamlesh. The offence was notified to the police by PW-3 Mange Ram on 26.11.1995. ASI Hardwari Lal, Police Station, Barwala happened to be present at Bus Stand, Barwala where Mange Ram made statement Ex. PE to him. In the course of that statement, it was alleged that it was a case of dowry death as the appellants had been harassing Kamlesh on account of inadequacy of the dowry brought by her. The usual formalities followed and appellants were challaned in due course. The prosecution, in order to prove the charge against the appellants, at the trial, examined PW-1 Dr. K.L.Juggal, PW-2 Dharam Pal, PW-3 Mange Ram, PW-4 Suresh, PW-5 Suraj Bhan and PW-6 ASI Hardwari Lal. PW-1 Dr. K.L.Juggal had conducted the post-mortem examination on the dead body of Kamlesh and found the following injuries on it:- “1. Contused abrasion with swelling 3 x 2 cm on the right side of the forehead. Clotted blood was present at the size. Colour was reddish blue. Blood was present in the S/C tissue. Criminal Appeal No.842-SB of 1998 -4- **** 2. Three abrasions were present in the left patella and upper part of the left leg in an area of 10 C 6 cm. Reddish blue contusion was also present at the site. Clotted blood was present at the site. Effusion of blood in the S/C tissues was present.” Dr. Juggal opined that “the cause of death was asphyxia as a result of drowning which was ante-mortem and sufficient to cause death in ordinary course of nature.” PW-2 Dharampal, Patwari Halqa had prepared scaled site plan (Ex. PD) of the place of occurrence on the pointing of ASI Hardwari Lal who had accompanied him to the spot on 3.12.1995. PW-3 Mange Ram and PW-4 Suresh are father and brother respectively of the deceased lady. PW-5 ASI Suraj Bhan (then posted at Police Station, Barwala) had recorded formal FIR Ex. PE/1 on receipt of ruqqa Ex. PE. PW-6 ASI Hardwari Lal had investigated this case. Affidavit Ex. PA of MHC Rai Singh was tendered into evidence. Gugan Ram, Manjit, Yad Ram, Chameli, Sultan Singh , Ramesh Arora and Data Ram were given up as unnecessary. The appellants pleaded innocence in the episode. Appellant Balwan raised the following plea in the course of statement under Section 313 Cr.P.C.:- “I am innocent. Kamlesh used to remain under Criminal Appeal No.842-SB of 1998 -5- **** depression for hot having a child. On 19.11.95, fire caught accidentally to the hut made of pullies and thereof Chhano and Pirthi raised noise people from neighbourhood collected there and extinguished the fire but Smt. Kamlesh who was abutting the grass nearby did not come to help. Pirthi blamed for her this act. She wanted to live separately and under depression of not fulfilling the demand of separate living and depression for not having child she jumped into deserted well and committed suicide. Pirthi lodged DDR No. 19n dated 24.11.95 with police. Pirthi informed village Panch/Sarpanch. We called parents by sending two persons just of the removing dead body and before conducting post mortem examination on the dead body of Kamlesh, there was no protest on behalf of complainant party. Satibir son of Surja, Ram Bhagat son of Giokal were sent on motor cycle to call. Later on complainant under the influence of Sultan son of sister of Mange Ram, false case registered to blackmail us.” Appellants Pirthi, Ram Kumar and Chhana also raised a similar plea in course of the statements under Section 313 Cr.P.C. DW-1 Gugan Ram, Ex-Sarpanch of the village Dhani Garan, was examined in defence evidence. He gave testimony in line with the plea of innocence put forward by the appellants. Learned Trial Judge placed implicit reliance on the Criminal Appeal No.842-SB of 1998 -6- **** prosecution presentation, declined the appellants' plea of innocence and proceeded to indict the appellants and passed an order on point of sentence (which stands quoted in the opening para of this judgment.) Learned counsel appearing on behalf of the appellants argued with vehemence that the prosecution plea does not at all deserve acceptance in view of the that there is no evidence worth the name on the record on the basis thereof even an inference could be drawn that deceased lady had been subjected to any dowry-related torture. It is argued that she was a woman of weak mind who committed suicide because she was upset on account of the fact that she had not been able to conceive. Learned State counsel appearing on behalf of the respondent, offered plain reiteration of line of reasoning adopted by the learned Trial Court. At the very outset, it must be indicated that the appreciation of evidence in case of this category has an obvious handicap inasmuch as those living in the vicinity of the matrimonial house would not cooperate with the natal family of the deceased daughter-in-law for fear of annoying their village mates. Likewise, the girl side people would be reluctant to share their grievance with outside world for fear of adverse effect upon matrimonial prospects of the other segments of family. However, in the present case, it is in evidence that Mst. Bhagwani, a first cousin of deceased lady, was married in that very village and was residing in the house adjacent to Criminal Appeal No.842-SB of 1998 -7- **** that of the appellant. Further, it was she only who was mediator in the marriage of appellant and the deceased lady. (“Bhagwani, daughter of my father's elder brother was already married in Dhani Garan, the village of accused and she was mediator in the marriage. ......The house of my cousin Bhagwani is situated adjacent to the house of accused.”) Even if the deceased lady had no shoulder to cry on, she did have her first cousin in the adjacent house. She never ever made a complaint in the context of the alleged dowry- related torture at the hands of appellants to her. It is in the statement of Mange Ram PW-3 that “no complaint orally or in writing was ever made to any authority regarding mal-treatment or demand of dowry by the accused prior to the statement Ex. PE. No panchayat or biradari in this regard was ever convened or taken to the house of accused to make them understand. .......No letter regarding demand of dowry by the accused was received by me.” One can understand the refrain on the part of members of natal family of a bride from going public on a such like issue but it defies logic that the lady did not share her feelings even with Mst. Bhagwani. It may be pointed out here that refrain on the part of the deceased lady in sharing her grievance with Mst. Bhagwani would appear to represent a very unnatural conduct on her part. That unnatural part assumes added importance in the light of the fact that the public authorities were also not notified and even no panchayat was convened for redressal of the grievance in the context. The present is a case in which not only the first cousin of Criminal Appeal No.842-SB of 1998 -8- **** deceased lady was residing in a house adjacent to latter's matrimonial house, there were other relations of Mange Ram PW-3 as well who were residing in that village. It is in his own statement that Ram Dhari, Tulsa Ram and Suraj Bhan, who are his brothers-in- law in relationship, are also residing in that village. There is not even an averment that deceased lady ever got into touch with them to ventilate her grievance of having been subjected to dowry-related torture at the hands of appellants before this Court. Mange Ram PW-3 would want the Court to believe that on reaching the village of appellants, he got into touch with Sarv/Shri Ram Dhari, Tulsa Ram and Suraj Bhan. He did not get into touch with Ram Singh, husband of Mst. Bhagwani. It is in his testimony that it is only Sarv/Shri Ram Dhari, Tulsa Ram and Suraj Bhan who informed him that Kamlesh had either committed suicide or had been murdered by the appellants. Those three persons did not accompany him to the Police Station. Mange Ram PW-3 did not give their names in the First Information Report lodged with the police. In the course of the FIR, Mange Ram PW-3 even did not disclose to the police the information furnished to him by Sarv/Shri Ram Dhari, Tulsa Ram and Suraj Bhan in the context of the circumstances leading to the death of Mst. Kamlesh. Apart therefrom, Mange Ram PW-3 told the Court that his nephew (sister's son) Sultan and former's brother-in-law (wife's brother) had been to the house of appellants where they paid cash amount of Rs.4000/- for the purchase of a golden ring and Criminal Appeal No.842-SB of 1998 -9- **** impressed upon the appellants the desirability of behaving well with the deceased lady. That visit, as per the testimony of PW-3 Mange Ram, had taken place about 6 months prior to the impugned occurrence and those two persons had gone there in the company of Suresh PW-4, a son of PW-3 Mange Ram. That part of the presentation is fanciful and a make-believe affair. PW-3 Mange Ram testified that Data Ram and Sultan stayed with him for the night after having paid the amount of Rs.4000/- to the appellants at their house. He is given a complete lie to by the statement of his son PW-4 Suresh who averred that all of them ( a reference to Data Ram and Sultan) went away to their respective villages after having paid that amount. This contradiction in the inter-se testimony of PW-3 Mange Ram and his son PW-4 Suresh Kumar was noticed by the learned Trial Judge in the course of para no.11 ofd the judgment under challenge. Further, as per the testimony of Mange Ram PW-3, Sultan followed him to the Police Station but the statement of Sultan was not recorded by the police in his presence. If Sultan had actually been privy to the payment of Rs.4000/- to the appellant, there is no why the fact of his having visited the house of the appellants in the context would not have been mentioned in the FIR and further why his statement on the above lines would not have been recorded by the police. It would have been natural for Mange Ram PW-3 to insist that the police record the statement of Sultan in the context. The reliance placed by the learned Trial Court upon the Criminal Appeal No.842-SB of 1998 -10- **** provisions of Section 113-B of the Indian Evidence Act for drawing presumptive inference against the appellants appears to be misconceived, for want of any reliable evidence to the effect that deceased lady had been subjected to any dowry-related torture at all or, in any case, immediately before death. In the light of fore-going discussion, it is held that prosecution had not been able to prove the charge against the appellants beyond reasonable doubt. The appeal shall stand allowed. The impugned finding of conviction shall stand set aside and appellants shall stand acquitted of the charge. August 19, 2008 (S. D. ANAND) Pka JUDGE