Criminal Appeal No. 2179-SB of 2007 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 2179-SB of 2007 Date of decision : September 29, 2011 Wazir ....Appellant versus State of Haryana ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Jagpal Singh, Advocate as Amicus-curiae for the appellant Mr. Harkesh Manuja, Advocate, for the appellant Mr. Anil Kumar, Deputy Advocate General, Haryana L.N. Mittal, J. (Oral) By way of instant criminal appeal, convict Wazir has assailed his conviction and sentence recorded by learned Additional Sessions Judge, Jind vide judgment dated 22.9.2007 and order dated 25.9.2007 thereby convicting the appellant under sections 304-B and 498-A of the Indian Penal Code (in short, IPC) but acquitting appellant's parents Ram Chander and Rajde co-accused, and sentencing the appellant to undergo rigorous imprisonment for ten years and to pay fine of Rs 10,000/- and in default thereof, to undergo further rigorous imprisonment for one year under Criminal Appeal No. 2179-SB of 2007 -2- section 304-B IPC and to undergo rigorous imprisonment for two years and to pay fine of Rs 1000/- and in default thereof, to undergo further rigorous imprisonment for one month under section 498-A IPC, but both the sentences have been ordered to run concurrently. Prosecution case is that marriage of Neelam since deceased daughter of complainant Satpal was solemnized with appellant on 3.1.2000. Sufficient dowry was given in the marriage by the complainant. However, the appellant, his parents and two brothers and other family members started making demand of more dowry from the deceased and started harassing her for the same. The deceased used to tell the same to the complainant and his wife Kelo Devi whenever she visited them. Even about 10 days before the occurrence, Neelam came to her parental house and told that the appellant and his parents and brothers had asked her to bring more dowry. She was sent back to the matrimonial home after counselling. On 6.5.2006, some person from the appellant's village Sudkain Kalan informed the complainant's nephew Subhash that Neelam had consumed poison. Subhash passed on the information to the complainant. Thereupon complainant along with Subhash and other persons reached village Sudkain Kalan and learnt that the appellant and his parents and brothers and also wives of two brothers had murdered Neelam by administering some poisonous substance for not bringing more dowry. Complainant gave application Ex. PA to the police narrating the aforesaid facts. Thereupon FIR was registered and investigated. Statements of witnesses were Criminal Appeal No. 2179-SB of 2007 -3- recorded. Rough site plan of the place of occurrence was prepared. Inquest proceedings were conducted of the dead body of Neelam. Post mortem examination was also got conducted. As per report of the Chemical Examiner, viscera of the deceased gave positive test for halogenated hydrocarbon compound group of insecticides. Accordingly, cause of death was opined to be the said poison. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) for prosecution of the appellant Wazir only, holding remaining family members of the appellant named in the FIR to be innocent. Charge under section 304-B and in the alternative under section 302 IPC and also under section 498-A IPC was framed against appellant Wazir who pleaded not guilty and claimed trial. After examination of complainant Satpal as witness, prosecution moved application under section 319 Cr.P.C. for summoning parents, two brothers and wives of two brothers of the appellant as additional accused. The said application was allowed partly and only parents of the appellant namely Ram Chander and Rajde were summoned as additional accused. Charge under section 304-B IPC and in the alternative under section 302 IPC and also under section 498-A IPC was framed against the two additional accused also. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined 13 witnesses. Satpal complainant, PW1 (father of the deceased), Kelo Devi, Criminal Appeal No. 2179-SB of 2007 -4- PW10 (mother of the deceased), Subhash, PW11 and Rajesh, PW12 (both cousins of the deceased) have broadly stated according to the prosecution version. Dr. RK Singla, PW2 stated that he conducted post mortem examination on the dead body of the deceased. After perusing report of the Chemical Examiner, the witness opined that cause of death was insecticide. EHC Roshan Lal, PW3 stated that he delivered special report in the case to Illaqa Magistrate and higher police officers. ASI Ram Niwas, PW4 stated that he recorded formal FIR in this case. He also tendered his affidavit in evidence affirming that the case property was not tampered with in his custody. Kuldeep Gupta, Draftsman, PW5 stated that he prepared scaled site plan of the place of occurrence. EHC Ram Kumar, PW6 tendered his affidavit affirming that the case property was not tampered with in his custody. Jagpal Singh, PW7 is Ex.-Sarpanch of the appellant's village. He proved ration card of the appellant and his wife and daughter. He also proved compromise Ex. P2 regarding family partition between appellant and his brother Mehla. SI Bhagwan Dass, PW8 stated that he prepared report under section 173 Cr.P.C. ASI Ram Niwas, PW9 stated about part investigation of the case conducted by him. Criminal Appeal No. 2179-SB of 2007 -5- Inspector Jai Singh, PW13 stated about investigation of the case conducted by him. All the three accused in their examination under section 313 Cr.P.C. admitted that marriage of Neelam deceased with appellant Wazir had taken place on 3.1.2000. However, all other incriminating circumstances appearing in the prosecution evidence were denied by the accused. Appellant Wazir alleged that he was residing with his wife and child separately from other family members and had separate ration card. He also pleaded that complainant Satpal had taken some money from him. The deceased had gone to bring back that money but the complainant got annoyed and refused to repay the amount. The deceased lost temper having felt humiliated and therefore, consumed some insecticide. The appellant alleged that he informed parents of the deceased but they demanded more money and therefore, falsely got this case registered. The other two accused alleged that they had no concern with the affairs of the deceased and the appellant as they were living separately from them and were having separate ration card. No evidence was led by the accused in their defence. Learned Additional Sessions Judge vide impugned judgment and order convicted and sentenced accused Wazir only and acquitted the remaining two accused as already noticed hereinbefore. Feeling aggrieved, convict Wazir has preferred the instant criminal appeal. I have heard learned amicus-curiae for the appellant. During the course of arguments, counsel for the appellant also appeared and Criminal Appeal No. 2179-SB of 2007 -6- advanced arguments. State counsel has also been heard. File has also been perused with the assistance of the counsel for the parties. Learned Amicus-curiae and counsel for the appellant contended that there is no evidence of demand of dowry during six years of the matrimonial life of the deceased nor any complaint in this regard was ever lodged prior to the instant FIR. It was also pointed out that the complainant stated in cross-examination that the deceased had allegedly told the complainant's wife about the incident and had not directly told the complainant about it. The complainant also stated that he sent back the deceased to the matrimonial home about 10 days before the occurrence assuring that he would send the demanded money after arranging it and it would depict that no money was given to the deceased at that time. It was also argued that there is no evidence to show as to who gave poison to the deceased and even the trial Judge has held that ingredients of offence under section 302 IPC have not been made out. It was also pointed out that there was no injury mark on the body of the deceased. Reference was also made to the defence version set up by the appellant. It was also canvassed that there is no evidence to depict that any Panchayat was convened either 10 days before the occurrence or earlier at any stage. In this regard, reference was made to statements of Subhash, PW11 and Rajesh, PW12. It was also submitted that there is no evidence of demand of dowry and cruelty for the same committed soon before the death of the deceased and therefore, this essential ingredient of the offence of dowry death punishable under section Criminal Appeal No. 2179-SB of 2007 -7- 304-B IPC is not established. It was also contended that no independent witness has been examined to prove the demand of dowry and harassment of the deceased for the same. It was also argued that the demand of vehicle was allegedly for appellant's brother Raj Kumar. Reliance in support of the contention that ingredients of offence of dowry death are not proved, has been placed on judgments of Hon'ble Supreme Court in Nepal Singh vs. State of Haryana, 2009(3) RCR (Criminal) 418; Tarsem Singh vs State of Punjab, 2009(1) RCR (Criminal) 573; Rakesh Kumar vs. State of Haryana, 2009 Criminal Law Journal 1895 and Kanti Lal vs. State of Rajasthan, 2009(2) RCR (Criminal) 892 and also a judgment of this Court in Nasib Chand and others vs. The State of Punjab, 2009(3) RCR (Criminal) 285. On the other hand, learned State counsel contended that all prosecution witnesses have supported the prosecution case. There was also demand of dowry and harassment of the deceased for the same soon before her death because she had come to the parental home just 10 days before her death and told about demand of dowry and her harassment for the same. It was also pointed out that complainant Satpal, PW1 and his wife Kelo Devi, PW10 have both stated that they gave Rs 40,000/-, four quintals wheat and a buffalo to the deceased when she came to them 10 days before the occurrence, corroborating the prosecution version regarding demand of dowry soon before death of the deceased. It was also argued that all ingredients of dowry death are fully proved and the appellant has been Criminal Appeal No. 2179-SB of 2007 -8- rightly convicted. I have carefully considered the rival contentions. It stands admitted by the appellant that marriage of the deceased with the appellant had taken place on 3.1.2000 i.e. within seven years before her death. It is also established beyond doubt from the medical evidence and report of the Chemical Examiner and is not even disputed on behalf of the appellant that death of Neelam deceased was on account of consumption of insecticide poison i.e. otherwise than under normal circumstances. There is no quarrel about these two ingredients of the offence of dowry death. The only point of controversy is regarding the third ingredient of dowry death i.e. cruelty or harassment to the deceased by the appellant for or in connection with demand of dowry soon before her death. Prosecution evidence is sufficient to prove the aforesaid third ingredient of the offence of dowry death also against the appellant. There is consistent and cogent evidence of the prosecution in this regard. Reference on this aspect may be made to statements of complainant Satpal, PW1, Kelo Devi, PW10, Subhash, PW11 and Rajesh, PW12. They have stated that the deceased had been telling that she was being harassed for demand of dowry by the appellant and even 10 days before the occurrence, the deceased had come to her parental home and told about the demand of dowry and consequent harassment. Satpal and Kelo Devi have also stated that they had given Rs 40,000/- in cash, a buffalo and four quintals of wheat to the deceased at that time. It is, thus, apparent that there was demand of Criminal Appeal No. 2179-SB of 2007 -9- dowry and harassment of the deceased for the same soon before her death. In this background, the very fact that the deceased committed suicide by consuming poison would corroborate the prosecution version that she was being subjected to harassment and cruelty for demand of dowry by the appellant. It is correct, as observed in the case of Nepal Singh (supra), that conviction under section 304-B IPC cannot be recorded merely on the ground that something must have happened and otherwise the deceased would not have committed suicide. However, in that case, there was evidence of intervener who had got the marriage settled that at the time of settlement of marriage and even thereafter no demand of dowry was made. In that case, the demand of dowry was held not proved on the basis of the evidence. Moreover, in that case, the trial court had acquitted the accused, but High Court in appeal reversed the judgment of acquittal on the ground that something must have happened to the deceased and otherwise she would not have committed suicide. This approach of the High Court was not approved by Hon'ble Supreme Court for obvious reasons. Even otherwise, judgment of acquittal could not be reversed by the High Court in that case even if two views were possible. In the instant case, however, there is positive and cogent evidence led by the prosecution to depict that there was constant demand of dowry and the harassment of the deceased for the same by the appellant and it continued till soon before her death. Judgment in the case of Nepal Singh (supra) is, thus, completely distinguishable on facts. Criminal Appeal No. 2179-SB of 2007 -10- The contention that no complaint of dowry demand or harassment was made prior to the instant case cannot be accepted to discard the prosecution case because if the complainant wanted his daughter to continue in the matrimonial home, no complaint was likely to be made to the police about dowry demand and harassment because in that event, it would have been difficult to rehabilitate the deceased in the matrimonial home. However, it is mentioned in the FIR itself and has also been stated by complainant and his wife that after about two months of the marriage, the demand of dowry and harassment started and continued till the death of the deceased. Thus, it cannot be said that there is no evidence of demand of dowry and harassment during the period of six years after the marriage of the deceased with the appellant. The contention that there is no evidence to demonstrate as to who gave poison to the deceased and that the trial court has also held that ingredients of offence under section 302 IPC are not made out, is completely irrelevant and devoid of substance because the appellant has not been convicted under section 302 IPC for which it had to be proved that the poison was administered by the appellant. On the other hand, in the case of offence of dowry death punishable under section 304-B IPC, the prosecution is not required to prove that the accused administered poison to the deceased. On the other hand, if the death occurred by burns or bodily injury or otherwise other than under normal circumstances, then offence of dowry death is held proved if other ingredients of the offence are also Criminal Appeal No. 2179-SB of 2007 -11- established. It is not the requirement of this offence that the accused himself should have caused the death of the deceased by poison, burns, injuries etc. On the contrary, in that event, the offence would fall under section 302 IPC. It may also be added that there is also presumption under section 113-B of the Evidence Act that the appellant caused dowry death of the deceased because it has been proved that soon before her death, the deceased was subjected to cruelty by the appellant for demand of dowry. It may also be added that all ingredients of offence of dowry death have also otherwise been proved as discussed hereinbefore. In this view of the matter absence of injury mark on the body of the deceased would also be immaterial. Moreover, when death is by poison, possibly there could be no external injury mark on the body of the deceased. Defence version pleaded by the appellant in his statement under section 313 Cr.P.C. remains completely unsubstantiated. There is not even a shred of evidence on record to even remotely establish the said version. In fact, the said version is completely an afterthought because it was not even suggested to the complainant or other prosecution witnesses that the complainant had taken some money from the appellant and did not return the same when demanded back by the deceased at the instance of the appellant. The fact that there is no direct evidence of convening Panchayats would not cause any dent in the prosecution case because prosecution has led sufficient credible evidence to establish all ingredients Criminal Appeal No. 2179-SB of 2007 -12- of the offence of dowry death. In the very nature of the prosecution version, there could not be any independent witness regarding demand of dowry and harassment of the deceased for the same. On the contrary, only family members could be aware of the same. Both parents of the deceased have appeared in the witness box to state about the same. In addition to them, two cousins of the deceased have also stated about this fact. Non-examination of any independent witness to prove this fact is rather quite natural keeping in view the prosecution version. Other judgments cited by counsel for the appellant are also not of any help to the appellant. In the case of Kanti Lal (supra), conviction of the appellant was maintained by the Hon'ble Supreme Court, notwithstanding that the deceased in her dying declaration had stated that she got accidental burns while she was lighting the chimney and she was taken to hospital by the accused. In spite of this exculpatory dying declaration made by the deceased in that case, conviction of the appellants was upheld as there was evidence regarding constant demand of dowry by the accused as in the instant case. This judgment, therefore, rather goes against the appellant and in favour of the prosecution. In the case of Tarsem Singh (supra), there was not even allegation of demand of dowry in the FIR and no evidence was ever brought on record to show that cruelty or harassment was meted out to the deceased for bringing insufficient dowry. In that case, necessary ingredients of Criminal Appeal No. 2179-SB of 2007 -13- offence of dowry death punishable under section 304-B IPC were thus not established at all. However, it is not so in the instant case. In the case of Rakesh Kumr (supra), accused husband was charged for offence of dowry death on the basis of statement made by the father of the deceased and the letters written by the deceased. However, letters relied upon were found to be not in the handwriting of the deceased. In addition to it, the dying declaration did not inculpate the accused. Accordingly, conviction of the accused was set aside. The facts of the said case were, thus, completely different from the facts and evidence in the case in hand. In the case of Nasib Chand (supra), husband of the deceased lived in Italy and had earned lot of money. In these circumstances, on the basis of evidence, it was held that it could not be said that he or his parents could ever make demand of dowry from the deceased or her parents. The facts of Nasib Chand (supra) are also not attracted to the facts of the case in hand. For the reasons aforesaid, I find that conviction of the appellant is well founded because prosecution has led sufficient evidence to bring home the charge against the appellant for offences under sections 304-B and 498-A IPC. Accordingly, impugned judgment of conviction is affirmed. Learned counsel for the appellant prayed for reduction in sentence alleging that the appellant is in custody since 9.5.2006. Prayer for reduction in sentence has been opposed by learned Criminal Appeal No. 2179-SB of 2007 -14- State counsel contending that the appellant committed serious offences. I have considered the matter. Marriage of the deceased with the appellant had taken place on 3.1.2000. She died on 6.5.2006 i.e. 6 years and 5 months after the marriage. Even after the occurrence, more than five years have elapsed. However, it has to be noticed that the appellant is husband of the deceased and he was supposed to be protector of the deceased but his conduct led to death of the deceased. Accordingly, keeping in view all the circumstances of the case, I am of the considered opinion that ends of justice would be met if sentence of rigorous imprisonment for ten years for offence under section 304-B IPC is reduced to rigorous imprisonment for eight years while maintaining the sentence of fine and the sentence of imprisonment in default thereof and also while maintaining the entire sentence for offence under section 498-A IPC as imposed by the trial Court. It is ordered accordingly. It goes without saying that both the substantive sentences shall run concurrently as directed by the trial Court. With reduction in sentence as aforesaid, the instant criminal appeal stands disposed of accordingly. ( L.N. Mittal ) September 29, 2011 Judge 'dalbir'