Crl.Appeal No.571-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.571-DB of 2001 DATE OF DECISION: MAY 04, 2010 Shri Bhagwan and another .....APPELLANTS Versus State of Haryana ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr. R.S. Cheema, Sr. Advocate with Ms. Tarannum Cheema, Advocate, for the appellants. Mr. S.S. Randhawa Addl. A.G., Haryana, for the respondent-State. .. SATISH KUMAR MITTAL, J. Appellant Shri Bhagwan (husband) and his younger unmarried brother Inder, have filed the instant appeal against the judgment of conviction and order of sentence dated 14.7.2001/16.7.2001 passed by Additional Sessions Judge, Panipat, whereby they have been convicted under Section 304-B IPC and sentenced to undergo life imprisonment for committing the death of Monika wife of Shri Bhagwan. The third accused, namely, Mohan (father's sister's son of Shri Bhagwan), who was tried along with the aforesaid two accused for the said offence, was acquitted from the charges. Against the judgment of acquittal, no appeal has been filed either by the State or by the complainant/victim. Crl.Appeal No.571-DB of 2001 -2- In the present case, deceased Monika was married with accused Shri Bhagwan on 29.5.1996. After more than four months of the marriage, i.e., 4.10.1996, she died due to poisoning at her matrimonial home (Panipat). It is mentioned here that after consumption of poison when she was taken to the hospital by the accused in a serious condition, she was declared brought dead at 5.10 p.m. The doctor sent a ruqa to the police giving information regarding bringing of Monika in dead condition in the hospital. On receiving the ruqa, Inspector Samunder Singh (PW8) reached Civil Hospital, Panipat and recorded the statement of Madan Lal, father of the deceased. In his statement (Ex.PJ), Madan Lal (PW2) stated that he performed the marriage of his daughter Monika with Shri Bhagwan on 29.5.1996 according to Hindu rites. She was 20 years of age at that time. He gave dowry in the marriage as per his capacity. But after one month of the marriage, his son-in-law Shri Bhagwan, his brother Inder and his father's sister's son Mohan started harassing his daughter on account of demand of dowry. His son-in-law did not do any work. His daughter Monika was studying in B.Com IIIrd year in S.D. College, Panipat. After marriage, his daughter came to meet them at Samalkha two or three times during holidays for a short spell. His daughter told him that in her matrimonial home, her husband Shri Bhagwan, brother-in-law Inder and Mohan (son of father-in- law's sister), who often came to their house, used to harass her by taunting. About twenty days ago, his daughter Monika came to them at Samlkha. She told him and his wife Anguri Devi that her husband was demanding Rs.50,000/- for doing some work. Upon that he came to Panipat along with Crl.Appeal No.571-DB of 2001 -3- his daughter and tried to make understand his son-in-law Shri Bhagwan, his brother Inder and Mohan. He told his son-in-law that if he wanted to run a shop then he could provide goods worth Rs. fifty/sixty thousands for the shop, but he could not give the amount in cash. On his saying this, Mohan, who was present there, misbehaved with him and told him whatsoever he (Mohan) would like, that shall happen in the house of Shri Bhagwan. If he could not give an amount of Rs.50,000/- to Shri Bhagwan, then what he wanted to demand for Monika. He (complainant) said to him that he had married his daughter and it is upon them whether to keep Monika happy or harass her. On the day of the occurrence, he had gone to Gurgaon for his personal work. On return, he received a telephonic message from Panipat that his daughter Monika was ill and was admitted in the hospital. Immediately, he reached Civil Hospital, Panipat where his brother-in-law Wailaity Ram, his brother Hari Chand and other members of his family and relatives were present. There he came to know that his daughter Monika had died. He enquired from his relatives about the death of Monika. Then he came to know that his daughter Monika seems to have died due to consuming of some poisonous substance, or some other substance as she was harassed by her husband, brother-in-law Inder and father-in-law's sister's son Mohan for not bringing sufficient dowry. Action be taken against them. On the basis of aforesaid statement of PW2-Madan Lal (father of Monika), which was made by him at 10.15 p.m. in General Hospital, Panipat to ASI Mohinder Singh (PW5) against the accused, the formal FIR (Ex.PJ/3) was registered against them at 10.25 p.m. in Police Station City, Crl.Appeal No.571-DB of 2001 -4- Panipat under Sections 498-A, 304-B read with Section 34 IPC. On the next day, i.e., 5.10.1996 at 11.45 p.m., Dr. Tejinder Kumar, Medical Officer, Civil Hospital, Panipat (PW1) conducted the autopsy of the deceased. During post-mortem examination, it was found that Monika was pregnant and a foetus of 12 weeks was observed in the uterous. No fresh external mark of injury was observed. The viscera was sent to Chemical Examiner, Karnal. The opinion with regard to the cause of death was reserved subject to receipt of the report of the Chemical Examiner. On 30.8.1997, after receipt of the report (Ex.PA) of Chemical Examiner, application (Ex.PC) was moved for the opinion of the Doctor about the cause of death. After perusing the report, Dr.Tejinder Kumar (PW1) gave his report (Ex.PC/1) that in his opinion, Monika had died due to poisoning. The accused were arrested and after completion of investigation, challan was filed and both the accused were charge-sheeted under Section 304-B IPC. In support of its case, the prosecution examined eight witnesses, including PW1-Dr.Tejinder Kumar, who conducted the autopsy of the deceased; PW2-Madan Lal, father of the deceased; PW6-Hari Chand, uncle of the deceased and PW7-Anguri Devi, mother of the deceased were examined in order to prove the harassment of the deceased soon before her death in connection with demand of dowry. After closing of the prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C. in which they pleaded innocence and stated that they were falsely implicated in this case. In his statement, accused Shri Bhagwan stated that at the time of his marriage he Crl.Appeal No.571-DB of 2001 -5- was only middle fail and was unemployed and had already suffered injuries in a motor accident and was incapable of doing any sustain work. All these facts were made known to PW2-Madan Lal, father of Monika, before his marriage, but he (Madan Lal) did not disclose these facts either to his daughter nor to his own wife. Even he was not shown to Monika before marriage. Monika was studying in B.Com final year and was very beautiful. When she came to know about the aforesaid facts, she became deeply frustrated and depressed and wanted to end her marriage with him by seeking divorce, but her father was not agreeing to it. Monika later on came to know that she had become pregnant and on that account she became frustrated and depressed, and as a result of this, she committed suicide of her own by consuming some poisonous substance. When he became aware of it, he brought her to Civil Hospital, Panipat and sent a telephonic message to her parents at Samalkha. He was not responsible for her committing suicide and death. He tried to keep her well. His marriage with Monika was simple one and there was no demand of dowry on their party either in cash or kind. They never demanded Rs.50,000/- or any refrigerator. His brother Inder was residing separately from him with his grandmother and co-accused Mohan was also residing separately. They had got no joint business. His co-accused has no concern with him. He is innocent. In his statement recorded under Section 313 Cr.P.C., accused Inder stated that he is innocent. They never demanded Rs.50,000/- or any refrigerator. There was no demand of any kind. They never harassed Monika. He was residing separately from his brother Shri Bhagwan, along with his grandmother. They have got no joint business. Crl.Appeal No.571-DB of 2001 -6- In defence, the accused have examined DW1-Rajan son of Bichha Ram, who is brother-in-law of accused Shri Bhagwan and was mediator in the marriage. According to him, Madan Lal's financial position was weak and he was not in capacity to incur more expenditure in the marriage of Monika, and on his suggestion, the marriage of Monika was performed with Shri Bhagwan without any demand. According to this witness, at the time of the marriage no demand was made by Shri Bhagwan or his family members. According to him, after the marriage, Madan Lal told him that he had committed a mistake by performing marriage of Monika with Shri Bhagwan. He also told him that his daughter Monika did not like Shri Bhagwan. He further stated that till the death of Monika, Madan Lal had never told him that Shri Bhagwan had ever raised any demand for dowry, particularly about the demand of Rs.50,000/-. He further stated that Inder accused is also his brother-in-law. In the childhood of Inder, his mother had expired, and as such, he had been living separately with his grandmother. The trial Court after considering the evidence led by the prosecution, convicted appellant Shri Bhagwan and his brother Inder under Section 304-B IPC and sentenced them for life. The third accused, namely, Mohan, who is father's sister's son of appellant Shri Bhagwan, was acquitted of the charge by giving him the benefit of doubt, while holding that he was not residing with the other accused and he is only cousion of the remaining accused. Learned counsel for the appellants argued that in this case first two ingredients of dowry death, i.e., unnatural death of Monika, and that too Crl.Appeal No.571-DB of 2001 -7- within seven years of her marriage, though, prima-facie, have been proved but the prosecution has failed to prove that soon before her death she was subjected to cruelty or harassment by the accused in connection with any demand of dowry. According to the learned counsel, the statements of the three witnesses, which have been examined by the prosecution in order to prove the said ingredients, do not prove at all that any of the accused made any demand of dowry or Rs.50,000/- cash, as alleged, either from the deceased or her parents and harassed the deceased on that account. According to the learned counsel, the allegation of demand of Rs.50,000/- fifteen/twenty days prior to the occurrence, is a concocted version as no such demand was ever made by the husband. Learned counsel further argued that the alleged demand further does not lead to cruelty as there is no allegation that when the father (Madan Lal) refused to fulfill the demand, the accused caused any cruelty or harassment to the deceased. Learned counsel further argued that DW1-Rajan, who was the mediator of the marriage, had stated that neither at the time of the marriage nor subsequently any demand was made, and father of the deceased never approached him complaining about the demand of Rs.50,000/- by the husband for doing business. According to the learned counsel, in this case the deceased had not died by consuming poison due to any harassment caused to her on account of dowry, but she had committed suicide as she was under depression on account of the fact that her husband was physically and economically weak and she wanted to get rid of the marriage by seeking divorce. After knowing that she was pregnant, she became more depressed and committed suicide. None of the accused was responsible for her suicide. Crl.Appeal No.571-DB of 2001 -8- Learned counsel while individually arguing the case of appellant Inder, unmarried brother of the deceased, submitted that against him there is no allegation that at any point of time he demanded any particular thing. Against him, not a single statement pointing out an act of omission or commission was levelled as he was living separately with his grandmother. He was 23 years old at the time of the incident and has been falsely implicated under the tendency to implicate all the family members in case of dowry death. Learned counsel also referred to the ration card (Ex.DC), which was prepared in the year 1993, much prior to the occurrence, which clearly shows that accused Inder was residing with his grandmother and appellant Shri Bhagwan was living separately. Therefore, learned counsel argued that as far as appellant Inder is concerned, absolutely there is no allegation against him even in the statement of any of the prosecution witnesses that he ever made any demand and on that account harassed the deceased. As such, his conviction under Section 304-B IPC is not sustainable and the same is liable to be set aside. On the other hand, learned counsel for the respondent-State stated that on the basis of the evidence led by the prosecution, which is reliable and trustworthy, the trial Court has rightly convicted both the accused under Section 304-B IPC and the said judgment does not require any interference by this Court. We have heard the learned counsel for the parties and gone through the record of the case. Undisputedly, deceased Monika was married with appellant Shri Bhagwan on 29.5.1996. At that time, the husband was 26 years old and Crl.Appeal No.571-DB of 2001 -9- she was 20 years old. She was a student of B.Com final year. On 4.10.1996 when she consumed some poisonous substance and became unconscious, she was taken to the hospital by her husband Shri Bhagwan. At 5.10. p.m. she was declared brought dead. According to the opinion of Dr.Tejinder Kumar, Medical Officer, Civil Hospital, Panipat (PW1), cause of death of the deceased was due to poisoning. Thus, from these facts and the evidence, it has been established that the first two ingredients of the offence of dowry death have been proved/established on the record. Now the question arises for consideration is whether the appellants had harassed the deceased soon before her death in connection with any demand of dowry. In this regard, the prosecution has examined three witnesses, namely, PW2-Madan Lal, PW6-Hari Chand and PW7- Anguri Devi, father, uncle and mother of the deceased, respectively. From a close scrutiny of the testimony of these witnesses, it reveals that the prosecution has proved the allegation of harassment of the deceased soon before her death on account of dowry only qua husband Shri Bhagwan and not against appellant Inder, who is unmarried younger brother-in-law of the deceased and who was living separately with his grandmother. In the initial statement (Ex.PJ) made by Madan Lal (PW2) before the police, there are allegations against appellant Shri Bhagwan that twenty days before the occurrence, he had demanded Rs.50,000/- from the deceased and she had told this fact to her parents. Regarding appellant- Inder, there is no specific allegation. Only general and vague allegations have been levelled that after one month of the marriage, they started harassing the deceased on account of demand of dowry. No specific demand Crl.Appeal No.571-DB of 2001 -10- was mentioned. Subsequently, while appearing in the Court, an improvement was made that all the accused were demanding refrigerator. In the Court also, none of the three witnesses specifically stated that appellant Inder had made any specific demand or harassed the deceased on that account. It is undisputed fact that Inder was the younger brother of Shri Bhagwan. He was unmarried. It has also come on record that he was living separately with his grandmother. This fact is being established from the ration card, which has been placed on record as Ex.DC . In Kans Raj v. State of Punjab and others, AIR 2000 SC 2324, the Hon'ble Supreme Court has observed that for the fault of the husband, the in-laws or the other relations cannot in all cases be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has developed for roping in all relations of the in-laws of the deceased, wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In our opinion, in the present case, the husband and wife were residing separately. The demand of Rs.50,000/- was made by the husband only to do his business. On that account he had harassed the deceased. Thereupon, she made a complaint to her parents. Her parents tried to persuade the husband not to harass Monika on that account, but without any effect. Therefore, in our view, for the fault of the husband, the younger brother-in-law of the deceased, who was unmarried and was residing Crl.Appeal No.571-DB of 2001 -11- separately from his brother along with his grandmother, and was not having any joint business with his brother Shri Bhagwan, has nothing to do with the alleged harassment and demand of dowry by his brother Shri Bhagwan. Therefore, in our view, the prosecution has failed to prove the allegations of harassment of the deceased soon before death at the hands of accused Inder. Therefore, no presumption regarding dowry death under Section 113-B of the Indian Evidence Act, 1872 (hereinafter referred to as `the Evidence Act') can be drawn against him. Hence, his conviction under Section 304-B IPC is not sustainable and he is entitled to be acquitted from the charge. However, in our view, the prosecution has fully established all the three ingredients of the offence of dowry death against the husband and the trial Court has rightly drawn presumption against him under Section 113-B of the Evidence Act and convicted him for the offence of dowry death under Section 304-B IPC. The plea taken by the husband that his wife had committed suicide as she was under depression on account of the fact that her husband was physically and economically weak and she wanted to get rid of the marriage by seeking divorce, cannot be accepted as the same has not been established. Thus, the presumption under Section 113-B of the Evidence Act drawn against him has not been rebutted. Therefore, in our view, accused Shri Bhagwan has been rightly convicted for the offence under Section 304-B IPC by the trial Court. In the last, learned counsel for the appellants argued that in the facts and circumstances of the case, the trial Court was not justified to award life sentence to the accused for committing the dowry death. While relying upon the decision of the Hon'ble Supreme Court in Hem Chand v. Crl.Appeal No.571-DB of 2001 -12- State of Haryana, (1994) 6 SCC 727 and G.V. Siddaramesh v. State of Karnataka, JT 2010(1) SC 639, learned counsel argued that the instant case is not the rarest of rare case where the life sentence, which is maximum for the offence under Section 304-B IPC, be awarded to the accused. Therefore, he prays that the sentence of life imprisonment be modified. In Hem Chand's case (supra), the Supreme Court has held that for the offence of dowry death, awarding extreme punishment of imprisonment for life should be in rare cases and not in every case. In that case, not only death of the wife was due to strangulation, but because of no direct evidence against the accused, he was not convicted under Section 302 IPC but he was convicted under Section 304-B IPC on the basis of the presumption raised under Section 113-B of the Evidence Act. The Supreme Court while modifying the punishment of life imprisonment reduced the same to 10 years' RI. In G.V. Siddaramesh's case (supra), again the Supreme Court while following the principles laid down in Hem Raj's case (supra) has held that for the offence of dowry death, the punishment of imprisonment for life should be imposed in rare cases. In that case also the death sentence awarded to the accused was reduced to 10 years' RI. In the present case, the accused was a young person at the time of the incident. The unnatural death is not due to strangulation. The sentence of appellant Shri Bhagwan Singh was suspended by this Court in the year 2005 after finding his case being covered by the ratio of law laid down in Dharam Pal v. State of Haryana, 1999(4) RCR (Crl.) 600. Keeping in view these facts, we do not find that the instant case is a rare case where the accused deserves to be punished for the extreme punishment of Crl.Appeal No.571-DB of 2001 -13- imprisonment for life. In the result, the appeal is partly allowed. The impugned judgment of conviction and sentence passed against appellant Inder are set aside and he is acquitted of the charge. However, as far as appellant Shri Bhagwan is concerned, while confirming his conviction under Section 304-B IPC, we reduce the sentence of imprisonment for life to 10 years' RI. As appellant Shri Bhagwan is on bail, his bail bonds stand cancelled. He is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against the appellant in accordance with law. (SATISH KUMAR MITTAL) JUDGE May 04 , 2010 ( JORA SINGH ) vkg JUDGE