1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.464-SB of 2001 Date of Decision: November 17, 2010 Gurtej Singh …Appellant Versus State of Haryana …Respondent CORAM : HON’BLE MR. JUSTICE M.JEYAPAUL *** Present: Mr. R.S.Randhawa, Advocate for the appellant. Mr. Sukhvinder Singh Nara, Sr. DAG, Haryana *** M.JEYAPAUL, J. The appellant, who was the first accused before the trial Court, was convicted under Section 304-B of the Indian Penal Code and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.3,000/- and in default of payment of fine to undergo further imprisonment for a period of two months. The prosecution story, in brief, is as follows:- Golu alias Amarjit Kaur is a sister of PW-1 Baggar Singh, and PW-3 Darshan Singh. She was suffering from polio attack in her right leg. The appellant-accused Gurtej Singh was also suffering from polio attack in her left arm. The marriage between the sister of the PW-1 Baggar Singh and the accused was soleminised about five months prior to the occurrence and ‘Muklawa ceremony’ was performed about 25 days prior to the occurrence. Golo alias Amarjit Kaur stayed in her matrimonial home 2 for about 8 days. PW-1 Baggar Singh, complainant, brought Golo alias Amarjit Kaur to her parental house. Thereafter, Golo alias Amarjit Kaur informed PW-1 Baggar Singh and PW-3 Darshan Singh of her tale of woe. She disclosed that the appellant-accused along with her father-in-law, mother-in-law and brother-in-law gave her beatings, demanding dowry and also taunted her that the bridal family did not properly took care of the bridegroom marriage party members. The accused-appellant also demanded Golo alias Amarjit Kaur to bring refrigerator and scooter from her parents to enhance his prestige in the society. On 11.04.1999 at about 12.00 noon, when accused-Gurtej Singh came to bring Golo alias Amarjit Kaur to her matrimonial home, PW-1 Baggar Singh and PW-3 Darshan Singh told him that they were unable to fulfill the demand of refrigerator and scooter due to paucity of funds as such demand was beyond their capacity. Golo alias Amarjit Kaur was taken by the accused-Gurtej Singh on the same day at about 4:00 p.m to his house. At about 00:30 hours on 12.04.1999, Jagsir Singh, who was the mediator of the marriage, came to the house of PW-1 Baggar Singh and informed him that Golo alias Amarjit Kaur was seriously ill. But PW-1 Baggar Singh and PW-3 Darshan Singh found their sister lying dead on the cot in the house of the accused-Gurtej Singh. PW-1 Baggar Singh lodged a complaint to PW-12 Janardhan, Sub- Inspector, who registered the case under Sections 498-A and 304-B read with Section 34 of the Indian Penal Code. Having investigated the case, PW-12 Janardhan, Sub-Inspector laid charge-sheet against the three accused including the appellant. Though, the accused, his brother and his parents figured in the First Information Report, the brother of the appellant-accused Gurtej Singh was left out from the charge sheet. The parents of the appellant- accused were acquitted by the trial Court. 3 The trial Court having relied upon the evidence of the PW-1 Baggar Singh and PW-3 Darshan Singh, who are none other than the brother of the deceased, recorded findings that there was demand of dowry and cruelty was caused to the deceased, which compelled her to end her life, and thereby the trial Court convicted the accused-appellant for commission of the offences punishable under Section 304-B of the Indian Penal Code and he was sentenced as stated supra. Learned counsel appearing for the appellant-accused would submit that the deceased as well as the appellant, were affected by polio attack. When the appellant was already suffering from polio attack on his left arm, he may not be in a position to drive a scooter and therefore, he would submit that the prosecution has come out with a wrong version that the appellant demanded scooter as dowry. It is his further submission that PW-3 has deposed to the effect that the accused only taunted the deceased as the marriage party was not properly taken care of by the bridal family members. No demand of dowry culminated in cruelty was spoken to PW-3 Darshan Singh. Citing certain decisions of this Court as well as High Court of Bombay, he would submit that no cruelty or harassment was established soon before the death of the deceased as there was no nexus of the demand of dowry alleged by the prosecution and the death of Golo alias Amarjit Kaur and as such no presumption under Section 113-B of the Evidence Act would arise. It is his further submission that it is nobody’s case that the appellant had demanded the dowry either at the time of marriage or at the Muklawa ceremony. The appellant was implicated falsely therefore, he be acquitted of the offence under Section 304-B of the Indian Penal Code, he contends. The Public Prosecutor for the State would submit that PW-1 Baggar Singh and PW-3 Darshan Singh have deposed about the cruelty 4 and the harassment meted out to the deceased soon before her death demanding dowry. A presumption under Section 113-B of the Evidence Act that the accused-appellant has committed the offence of dowry death has arisen. Therefore, it is his submission that the judgment of the trial Court does not want interference. The marriage had taken place on 11.04.1999, about five months prior to the occurrence and Muklawa ceremony was conducted about 24 days prior to the occurrence, as per the evidence of PW-1 Baggar Singh and PW-3 Darshan Singh. The deceased stayed about eight days in the matrimonial home and thereafter PW-1 Baggar Singh brought her to the parental home. The death of the deceased had taken place on the very day the accused took her to his house. Undisputedly, the death had taken place within five months from the date of marriage. The Court has to analyse whether the cruelty and harassment were committed on account of demand of dowry emanated from the appellant-accused and whether said cruelty or harassment on account of dowry demand was committed soon before the death. In this context, the evidence of PW-1 Baggar Singh and PW-3 Darshan Singh, who are none other than the brother of the deceased has to be thoroughly analyzed. PW-1 Baggar Singh, who is none other than the first informant has deposed to the effect that the deceased had stayed in the matrimonial home for about eight days. Thereafter she was brought to the parental house by PW-1. At that time she informed PW-1 and PW-3 that she had been beaten by the appellant-accused demanding dowry, namely, refrigerator and scooter. Of course she also complained that she was taunted as the marriage party on the side of the bridegroom was not properly looked after. He also deposed before the trial Court that he had made a request to the accused not to harass his sister as his family had 5 already given sufficient dowry articles to him beyond their capacity. At about 4:00 P.M. on 11.4.1999, the deceased was taken to the matrimonial home by the accused-appellant. PW-1 Baggar Singh and PW-3 Darshan Singh reached there on information and saw only the dead body of their sister. PW-3 Darshan Singh on his part deposed that the deceased informed him that the accused used to taunt on account of demand of dowry. The accused also demanded refrigerator and scooter from his sister. When the accused-appellant came down to take his sister back to the matrimonial home, PW-3 Darshan Singh also told the accused not to harass his sister as his family was unable to fulfil the demand of dowry demanded by the accused. If at all, PW-3 Darshan Singh was not informed of the harassment meted out to his sister, there would have been no occasion for him to tell the accused not to harass his sister by making a demand of dowry. Therefore, it is not as if PW-3 Darshan Singh has not deposed about the harassment meted out to the deceased by the accused-appellant on account of demand of dowry. The evidence of PW-3 Darshan Singh lends material corroboration to PW-1 Baggar Singh. It is true that both of them are brothers by relations. After all married woman would inform about the cruelty or harassment meted out to her only to her family members. No wonder that the brothers, namely PW-1 Baggar Singh and PW-3 Darshan Singh have come out with the version that their sister disclosed that she was being harassed on account of demand of dowry by the accused-appellant. There is no reason to disbelieve the evidence of PW-1 Baggar Singh and PW-3 Darshan Singh who are of course closely related to the deceased. 6 The medical examiner report would establish that the death of the deceased had occurred on account of Aluminum Phosphide poisoning. Further, there is close a nexus between the cruelty and harassment committed by the accused by demanding dowry and the death of the deceased. Therefore, the presumption that the appellant-accused has committed dowry death under Section 113B of the Evidence Act has clearly arisen in this case. It is true that both the accused and the deceased were afflicted with polio attack. A suggestion was put to PW-1 Baggar Singh by the accused that his left arm was totally affected on account of polio attack but it was totally denied by the PW-1. It is his version that there was deformity on the left arm but his left arm was not wholly defunct. Therefore, the submission made by the learned counsel appearing for the accused that the accused was not in a position to drive scooter, and therefore he would not have made a demand for a scooter as dowry does not have a leg to stand upon. It is true that there is no evidence on record that there was demand of dowry made by the accused at the time when the marriage was performed or at the time when Muklawa ceremony was conducted. But there is evidence to show that the parents of the deceased gave dowry at the time of marriage as per their status. But quite unfortunately, the accused having realized that dowry given by the family of the deceased did not match with his status had made a demand of dowry after Muklawa ceremony was performed. Therefore, lack of demand of dowry at the time of marriage or at the time of Muklawa ceremony does not go to the root of the matter. It appears that the deceased had meekly followed the accused to their matrimonial home believing that the accused-appellant would treat 7 her properly after sufficient advice had been given by PW-1 Baggar Singh and PW-3 Darshan Singh but quite unfortunately the deceased had ended her life on the very same day by taking poison. No possible explanation is forthcoming from the side of the accused-appellant as to how she consumed Aluminium Phosphide, a poisonous substance more especially when the deceased was very much in his custody. The Bench of our High Court in Ramesh Vs. State of Haryana, 1997(3) R.C.R.(Criminal) 19, has held as follows:- “19. We, however, find that the prosecution has failed to establish the third ingredient that soon before her death, Suman was subjected to cruelty or harassment for or in connection with the demand of dowry. Though PW 3 Jagan Nath and PW 4 Soma Devi (father and mother of the deceased) had stated that the appellant used to demand money and other dowry articles through Suman and he used to give her beating on the demand of dowry articles but there is nothing on the record to show that she was treated with cruelty or harassment on the demand for dowry soon before her death. PW-4 in her statement, had stated that the appellant demanded money and other dowry articles through Suman from the next day of marriage but she did not state any fact that soon before the death of Suman, the appellant had demanded any dowry. PW3, in his cross-examination, admitted that the appellant did not demand money in his presence and he used to demand money through Suman who used to tell about it to her mother. In the absence of any such evidence, it will not be valid to take recourse of the legal presumption envisaged in Section 113-B of the Evidence Act.” That was a case where there was nothing on record to show that there was cruelty or harassment regarding demanding dowry soon before the death of the deceased. Under such circumstances, it has been 8 held therein that the legal presumption under Section 113-B of the Evidence Act, cannot be invoked. The Supreme Court in Harjit Singh Vs. State of Punjab, 2006(1) R.C.R.(Criminal) 133 observes as follows:- “17. From a conjoint reading of Section 304-B of the Indian Penal Code and Section 113-B of the Indian Evidence Act, it will be apparent that a presumption arising thereunder will operate if the prosecution is able to establish the circumstances as set out in Section 304-B of the Indian Penal Code.” In the aforesaid case, the prosecution was not in a position to cite even a single instance as to the cruelty or harassment demanding dowry for a period of three months prior to the death of the victim, but in the instant case within about few days from the date of harassment made by the accused-appellant by demanding dowry, the deceased, who was taken to matrimonial home committed suicide. Rather, even before the advice emanated from the brothers of the deceased had reached the mind of the accused, unfortunately death of the sister of PW-1 Baggar Singh had taken place. Further, in the instant case, the ingredients of Section 304-B of the Indian Penal Code have been well established by the prosecution. In view of the above, the above decision would not apply to the facts and circumstances of the case. The High Court Bihar in Chandrama Singh Vs. The State of Bihar, 2006(3) R.C.R.(Criminal) 105, has held as follows:- “22. From the above discussion of oral evidence as well as fardbeyan Ext.1, it is quite apparent that there is no legal material on record to show that the deceased Ram Kali Devi was ever subjected to cruelty or harassment by the accused appellants. Now the question arises whether demand of dowry un-accompanied by any 9 torture or harassment is sufficient to attract provision of Section 304(B) I.P.C. On this point, Section 304(B) I.P.C. itself is very clear which says – “She was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand for dowry”. Cruelty and harassment has been defined in Section 498-A of the I.P.C. which also clearly goes to show that mere demand of dowry or any other unlawful demand for any property or valuable security does not come within the definition of cruelty or harassment. In other words, mere casual demand of dowry un-accompanied by any mental or physical torture does not fall within essential ingredient of “dowry death”. In absence of proof of cruelty or harassment to the deceased no presumption of dowry death under Section 113-B of the Evidence Act can be drawn and, hence, the present case does not fall within the mischief of Section 304(B).” That was a case where the witness examined on the side of the prosecution failed to speak about cruelty and harassment committed by the accused by demanding dowry. In other words, no one in that case has spoken to the mental or physical torture given by the accused to the deceased making a demand of dowry, but in the instant case, which is quite distinguishable from the facts and circumstances of the aforesaid case, beating was given by the accused to the deceased demanding dowry as deposed by PW-1 Baggar Singh. Of course, the Bench of this Court in State of Haryana Vs. Subhash, 2008(1) R.C.R.(Criminal) 196, has held that mere taunting on account of insufficient dowry would not constitute an offence under Section 304-B of the Indian Penal Code. The prosecution also failed in that case to connect the death of the bride with that of the cruelty committed by the accused demanding dowry. Under such context the Court observed that there was no material to show that there was at least any injury on the 10 body of the deceased to testify the violence. Therefore, the Court in the said case held that the mere taunting on account of insufficient dowry would not constitute an offence under Section 304-B of the Indian Penal Code. The ratio laid down by the Bench of this Court would not apply to the special facts and circumstances of the case, where it has been established that there was harassment meted out to the deceased demanding dowry soon before the death. In Suvarnasingh Tiratsingh Dhanjal Vs. State of Maharashtra, 2006(1) R.C.R.(Criminal) 921, the Bombay High Court has held that when there is no link between the harassment meted out to the deceased and the demand of dowry, an offence under Section 304-B of the Indian Penal Code is not made out. Further, it has been held that the demand of a cash, refrigerator etc. after a period of six months of marriage would not have any nexus with the demand of dowry in connection with the marriage. That was a case where the deceased had committed suicide in the absence of the husband. That it was committed due to the harassment made by the accused was not properly brought out by the prosecution. In the above facts and circumstances of the case the above observations were made by the Bombay High Court. The facts and circumstances of this case are totally different. In view of the above, I find that the trial Court has rightly analyzed the material on record and has come to a decision that the appellant-accused had committed the offence punishable under Section 304-B of the Indian Penal Code. The sentence imposed on the accused is also not found excessive. Rather it is found to be proportionate to the gravity of the offence committed by the accused-appellant. Therefore, the judgment of the trial Court, which is under challenge, is confirmed and the appeal is dismissed. 11 If the accused-appellant is on bail, his bail bonds shall stand cancelled. The Chief Judicial Magistrate concerned shall comply with the judgment with due promptitude keeping in view the applicability of the provision of Section 428 of the Criminal Procedure Code. November 17, 2010 (M.JEYAPAUL) adhikari JUDGE