Crl.Appeal No.869-DB of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYA AT CHANDIGARH Crl.Appeal No.869-DB of 2007 DATE OF DECISION: MAY 10, 2010 Parveen .....APPELLANT Versus State of Haryana ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr. Vinod Ghai, Advocate, for the appellant. Mr. S.S. Randhawa Addl.A.G.,Haryana, for the respondent. .. SATISH KUMAR MITTAL, J. Appellant Parveen (husband) along with his father Rattan Singh and mother Savitri Devi, was tried for committing the offence of dowry death of his wife Urmila by the Court of Additional Sessions Judge (I), Bhiwani. Vide judgment of conviction and order of sentence dated 20.9.2007, the appellant was convicted under Section 304-B IPC and sentenced to undergo imprisonment for life and to pay fine of Rs.5,000/-. However, his parents, namely, Rattan Singh and Savitri Devi were acquitted of the charge. Against the said judgment, the appellant has filed the instant appeal. However, against the judgment of acquittal, no appeal has been filed either by the State or by the complainant. In the present case, deceased Urmila was married with the Crl.Appeal No.869-DB of 2007 -2- appellant on 8.11.2003. Out of the said wedlock, one son was born, who was one year and two months old at the time of the occurrence. Within seven years of the marriage, on 12.6.2006, Urmila (deceased) along with her son jumped into the dry well situated in village Devrala and committed suicide. As per the prosecution version, no one had seen her jumping into the well. In the morning of 12.6.2006, when she was not found present in the house, her parents were informed. Then her brother Sunil along with his uncle Sunder Singh, came to the village. On search made by them, dead bodies of Urmila and her son were found in the well. Thereafter, on the basis of the statement of Sunil (brother of the deceased), which was recorded by ASI Suraj Bhan (PW8) at 6.30 p.m., the formal FIR (Ex.PL) was registered against the appellant and his parents, namely, Rattan Singh and Savitri Devi under Section 304-B/34 IPC. In his statement (Ex.PA), complainant Sunil stated that they were two brothers and two sisters. The marriage of his younger sister Urmila was solemnised on 8.11.2003 with Parveen (appellant herein). His parents gave dowry according to their capacity. About one year back, his sister gave birth to a son whose name was Gautam. He further stated that as and when his sister came to their house she had told him and his father that her husband, mother-in-law and father-in-law harass her and beat her on account of the demand to bring cash amount and a car. On 6.6.2006, he received a telephone from his sister that her husband, mother-in-law and father-in-law gave beating for bringing dowry. Then on the same day he along with his aunty Bimla Devi wife of Sunder Singh went there. They made the accused understand. They also paid Rs.20,000/- and returned back. After that they (accused) again gave beating to his sister for dowry. Today, Crl.Appeal No.869-DB of 2007 -3- i.e., on the day of the occurrence, at about 7.30 a.m., he received a telephone from Parveen (appellant) that Urmila was missing from the house. Thereupon, he and his uncle Sunder Singh went to village Devrala. When they inquired from the appellant about Urmila, he did not give satisfactory reply. Then they traced Urmila and found the dead bodies of Urmila and Gautam in the well, which was situated near the house of the appellant. They doubt that his sister was killed by her husband, mother-in-law and father-in-law for demand of dowry. Action be taken. On 13.6.2006, at 12 O'clock, PW3-Dr. Hari Singh conducted the autopsy of the deceased Urmila as well as Gautam. Both ankle joints of deceased Urmila were found fractured. Multiple abrasions were found present on right and left thigh and a contusion was found present on anterior side of head. A contusion was also found present on anterior and upper part of chest. Fractures of 4th, 5th and 6th ribs on the left side of the chest were found present. There was laceration on anterior side of the lung with blood in the cavity. Anterior wall of the heart was raptured with rapture of pericardium and heart was healthy. Liver, spleen, kidney were healthy and bladder was empty. Uterus contained foetus about two months size. In the opinion of the doctor, the cause of death was due to injuries to vital organs leading to shock. On the same day, PW3-Dr. Hari Singh conducted the post mortem examination on the dead body of Gautam. There was a lacerated wound on the top of scalp. Both parietal bones at its union points were found fractured in multiple pieces. Membrane of the brain raptured and contained blood under it. After conducting the post mortem examination, the doctor handed over sealed parcels of clothes vide memo Ex.PH to EHC Kashmir Crl.Appeal No.869-DB of 2007 -4- Singh, who in turn handed over the same to ASI Suraj Bhan, Investigating Officer. The rough site plan Ex.PM was prepared on 12.6.2006 at the spot. The blood stained earth was also taken into possession by the Investigating Officer from the bottom of the dry well and sealed in a parcel. The blood stained earth and sealed parcel of clothes of the deceased were handed over by the Investigating Officer on the same day to MHC, P.S. Tosham. Accused Parveen was arrested on 20.6.2006 and his parents Rattan Singh and Savitri Devi were arrested on 8.7.2006 and 9.7.2006, respectively. During the investigation, the police recorded the statements of brother, mother, father, uncle and aunty of the deceased. After investigation, the challan was filed against all the three accused and they were charged under Sections 304-B, 406 read with Section 34 IPC to which they pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 11 witnesses, out of which, only PW1-Sunil Kumar (brother of the deceased); PW2-Sunder Singh (uncle of the deceased) and PW8-ASI Suraj Bhan, Investigating Officer are the material witnesses. PW1-Sunil Kumar in his statement before the Court supported the prosecution version. He stated that as and when his sister Urmila came to their house, she told that her husband and parents-in-law used to harass her for demand of dowry. They taunt her that she belonged to a poor family and her parents did not give any dowry in the marriage. She used to complain them with regard to maltreatment and for demand of dowry made by the accused. On 6.6.2006, his sister (deceased) had informed them on telephone that the accused persons were beating her mercilessly and demanding dowry. They demanded cash and a car. On receiving the telephonic message, he along with his aunty Bimla Crl.Appeal No.869-DB of 2007 -5- Devi went to village Devrala and made understand the accused persons. He also gave the accused an amount of Rs.20,000/-. Even then the accused persons did not stop demanding more money and gave beating to his sister. On 12.6.2006, he received a telephonic message from the appellant regarding missing of his sister Urmila. Then he along with his uncle Sunder Singh went to village Devrala and found the dead bodies of his sister and his nephew Gautam lying in the well. PW2-Sunder Singh has also supported the prosecution case with regard to harassment of the deceased by her husband and parents-in- law on account of demand of dowry made by them. But he did not state anything about the occurrence of 6.6.2006, i.e., harassment and beating to the deceased by the accused on account of demand of cash and a car, and giving of Rs.20,000/- to the accused. However, he stated that on receiving the telephonic message on 12.6.2006, he along with complainant Sunil Kumar (PW1) went to village Devrala and thereon they searched for the dead bodies which were found in the well. After closing of the prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C. in which they claimed innocence and stated that they were falsely implicated in this case. In his statement under Section 313 Cr.P.C., the appellant stated that on the day of the occurrence, deceased Gautam was playing near the house. He went close to the well so as to put his life endanger. Urmila in a bid to save her son from falling into the well ran fast towards the well. She could not stop herself at the orifice of the well where the child had already reached and accidentally Urmila as well as Gautam fell into the well and died. He was innocent. Crl.Appeal No.869-DB of 2007 -6- In their statements under Section 313 Cr.P.C., accused Savitri Devi and Rattan Singh took the stand that they were residing separately from their son Parveen. Their daughter-in-law Urmila fell into the well accidentally along with her son Gautam which they came to know later on. They never made any demand for dowry. They were innocent. In support of their case, accused examined DW1-Baldeep Singh, father of the deceased. He stated that his daughter Urmila and his maternal grandson Gautam accidentally fell into the well and died. Accused never harassed his daughter nor demanded any dowry from him. They kept his daughter nicely. He has no grouse against any of the accused. She never made any complaint against the accused persons regarding harassment on account of demand of dowry. In cross-examination, he stated that he never made any statement to the police during investigation. DW2-Bimla Devi wife of Sunder Singh did not support the prosecution version. She stated that the accused did not harass Urmila and never demanded any dowry, and they kept her nicely. She further stated that she has no grievance against any of the accused. She further stated that the deceased never made any complaint to her regarding harassment in connection with demand of dowry against the accused. She stated that the case against the accused persons was lodged due to misunderstanding. She did not visit village Devrala either alone or with PW1-Sunil on 6.6.2006. It is made clear here that even in her statement under Section 161 Cr.P.C. she had not stated that she had visited village Devrala on 6.6.2006. DW3-Mewa Devi had stated that deceased Urmila was his daughter. She specifically stated that her daughter never made any complaint to her against the accused persons regarding harassment in connection with demand of dowry. The case against the Crl.Appeal No.869-DB of 2007 -7- accused persons is incorrect and is the result of misunderstanding. DW4- Ramesh Chander, Clerk in the office of Food and Supplies Department, Tosham, who proved on record the ration cards. In the ration card of Rattan Singh, only three members were recorded, namely, Rattan Singh, Savitri Devi, his wife and Pardeep Kumar, his son, whereas in the ration card of Parveen, the names of three persons were registered, namely, Parveen Kumar himself, Urmila Devi, his wife and Parmeet Kumar, his brother. Thus, both the ration cards indicate that the appellant was residing separately from his parents. The trial Court, after appreciating the evidence available on the record, convicted accused Parveen under Section 304-B IPC, though acquitted him of the charge under Section 406 IPC, and acquitted Rattan Singh and Smt. Savitri Devi, parents-in-law of the deceased, of all the charges, while holding that they were residing separately and were not involved in the demand of dowry made by accused Parveen. Learned counsel for the appellant argued that in the instant case the prosecution has failed to prove all the essential ingredients for committing dowry death, therefore, conviction of the appellant under Section 304-B IPC by the trial Court is wholly illegal and unjustified. Learned counsel argued that for committing an accused for the offence of dowry death under Section 304-B IPC, the prosecution is required to prove five ingredients beyond reasonable doubt and only then the presumption, which is rebuttable, for committing of the dowry death, can be raised against the accused under Section 113-B of the Indian Evidence Act, 1872. These ingredients are (1) that the death of a woman is caused under abnormal circumstances; (2) death should be within seven years of her Crl.Appeal No.869-DB of 2007 -8- marriage; (3) she was subjected to cruelty or harassment by her husband or relative of her husband; (4) that harassment or cruelty must be in connection with demand of dowry; and (5) such harassment or cruelty in connection with demand of dowry is soon before her death. According to the learned counsel, in the instant case, the aforesaid 4th and 5th ingredients of dowry death have not been proved by the prosecution. While referring to the evidence, learned counsel argued that in order to prove that the deceased was harassed by the appellant on account of demand of dowry soon before her death, the prosecution only examined PW1-Sunil Kumar and PW2- Sunder Singh, whereas father, mother and aunty (Bimla Devi) of the deceased appeared as defence witnesses and deposed against the prosecution version regarding harassment of the deceased by the appellant on account of demand of dowry. According to PW1-Sunil Kumar, when he received the message from his sister about the beating and harassment on account of demand of cash on 6.6.2006, he told the said fact to his aunty Bimla Devi, and thereafter, he along with said Bimla Devi went to the house of his sister where he paid Rs.20,000/- to his sister. Learned counsel submitted that the sole statement of PW1-Sunil Kumar with regard to the demand of Rs.20,000/- on 6.6.2006, i.e., soon before the death and harassment to the deceased on that account, has not been corroborated by the statement of any other witnesses, including DW2-Bimla Devi. PW2- Sunder Singh, uncle of the deceased, did not utter a word about the demand made by the accused on 6.6.2006. Learned counsel while further referring to the statement of PW1-Sunil Kumar, submitted that even the said demand of Rs.20,000/- was not on account of dowry or having any nexus with the demand of dowry. He pointed out that in his cross-examination, PW1-Sunil Crl.Appeal No.869-DB of 2007 -9- Kumar stated that when his sister asked him on telephone to bring some money, then she told him that she was in need of some money and on inquiry from her about the need, she further told that the accused were in need of some money. Therefore, the said witness took Rs.20,000/- while going to village Devrala. It has not been stated that the said demand of Rs.20,000/- was in connection with demand of dowry or to purchase the car, as initially alleged in the FIR. Even the alleged demand of Rs.20,000/- and payment of the same was not in connection with demand of dowry. The said version has not been corroborated by Bimla Devi. When she appeared as DW2, she categorically stated that she never visited village Devrala. Learned counsel argued that when the prosecution has failed to prove any harassment to the deceased in connection with demand of dowry, and that too, soon before death, then the appellant cannot be convicted even for the offence under Section 306 IPC and as such no presumption under Section 113-A of the Indian Evidence Act, 1872 (hereinafter referred to as `the Act') could have been raised against him. He argued that in the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. According to the learned counsel, the presumption under Section 113-A of the Act could have been raised if it is shown that (1) the woman had committed suicide; (2) such suicide had been committed within a period of seven years from the date of her marriage; (3) the husband or his relative, who are charged, had subjected her to cruelty. According to the learned counsel, in the instant case except the bald statement of PW1-Sunil Kumar, there is no other evidence which proves that the appellant had ever subjected the deceased to cruelty or harassment. Crl.Appeal No.869-DB of 2007 -10- Therefore, according to the learned counsel, the conviction of the appellant under Section 304-B IPC is wholly illegal and the same is liable to be set aside. On the other hand, learned counsel for the respondent stated that in the instant case all the ingredients of dowry death have been established and the trial Court has rightly raised the presumption against the appellant under Section 113-B of the Act, which has not been rebutted by him. He further argued that in spite of the fact that the three relatives had appeared as defence witnesses, but the testimony of PW1-Sunil Kumar and PW2-Sunder Singh is wholly reliable and trustworthy and their testimony has fully established that soon before death, the deceased was harassed on account of demand of dowry by the appellant. Therefore, the conviction of the appellant under Section 304-B IPC, which has been fully established by the trial Court, is perfectly valid and justified. Undisputedly, the marriage of deceased Urmila was solemnised with Parveen on 8.11.2003. From the said wedlock, there was a male child, namely, Gautam. On 6.6.2006, she had died an unnatural death. She along with her minor son, who was one year and two months at the time of the occurrence, jumped into a dry well, situated near her matrimonial home, early in the morning. From the medical evidence available on the record, it appears to be a case of suicide. It is not the case of the prosecution that it was a case of homicidal death. Thus, it has been established that Urmila had died an unnatural death within seven years of her marriage. As per the allegation of the prosecution, soon before death she was subjected to cruelty and harassment by her husband and his parents in connection with demand of dowry. Therefore, all the accused had committed the offence of dowry Crl.Appeal No.869-DB of 2007 -11- death. The trial Court has acquitted Rattan Singh and Savitri Devi, parents of the appellant while giving finding that they were not party to the alleged harassment and cruelty to the deceased as they were living separately. It has also come in evidence that the appellant is a J.B.T. Teacher and at the time of the occurrence he was posted in a government school at Rewari and just 2/3 days prior to the occurrence he came to the village where he was having a separate house. Keeping in view these factors, the trial Court acquitted the parents of the appellant. No appeal has been filed against the said acquittal either by the State or by the complainant. As per the prosecution version, which is based upon the statement of PW1-Sunil Kumar, brother of the deceased, as and when the deceased came to the house of her parents she used to tell her brother and parents that her husband, mother-in-law and father-in-law harassed her and beat her on account of demand to bring cash amount and a car. But no specific date on which she was given beating and harassment by her husband or other family members has been given. It is further the case of the prosecution that on 6.6.2006 PW1-Sunil Kumar received a telephone from his sister Urmila (deceased) that her husband, mother-in-law and father-in- law harass her and gave beating to her to bring dowry. Then on the same day, he (complainant) along with his Aunty Bimla Devi (DW2) went there. They made the accused understand and paid Rs.20,000/- and returned back. Thereafter, on the day of the occurrence, they received the telephone from the appellant that Urmila was missing from the house and thereafter on tracing she was found dead in the dry well along with her minor son. The alleged harassment and beating on 6.6.2006 on account of bringing some cash amount and then paying of Rs.20,000/- in presence of Bimla Devi Crl.Appeal No.869-DB of 2007 -12- (DW2) has not been proved by the prosecution beyond reasonable doubt. According to PW1-Sunil Kumar, he went to his sister's house on that day along with Bimla Devi and paid Rs.20,000/- in her presence, but Bimla Devi has not supported his version. She had appeared in defence as DW2 and categorically stated that the accused never harassed Urmila nor demanded any dowry and they keep her nicely and she has no grievance against any of the accused. She further stated that the deceased never made any complaint against the accused persons before her regarding harassment in connection with demand of dowry. She has specifically stated that she did not visit village Devrala either alone or with PW1-Sunil Kumar on 6.6.2006. Secondly, even in the statement of Bimla Devi recorded under Section 161 Cr.P.C. by the police, it has been alleged that on 6.6.2006 PW1-Sunil Kumar along with Sunder Singh (PW2) went to the matrimonial home of Urmila (deceased) and understand the in-laws of Urmila and paid Rs.20,000/- to them. Sunder Singh has appeared as a prosecution witness, but he has not uttered a word in his statement about going to the house of Urmila along with PW1-Sunil Kumar on 6.6.2006 and payment of the amount of Rs.20,000/-. From these facts, the prosecution version with regard to the demand made by the accused and harassment given to the deceased on 6.6.2006, has not been proved. Therefore, in the instant case, there is no evidence that soon before her death the deceased was subjected to any harassment and cruelty by the appellant in connection with demand of dowry. Therefore, in our opinion, the basic ingredients for committing the offence under Section 304-B IPC has not been established by the prosecution. Consequently, no presumption under Section 113-B of the Act can be raised against the appellant for committing the dowry death. In this Crl.Appeal No.869-DB of 2007 -13- regard, the trial Court has not properly appreciated the evidence and has wrongly come to the conclusion that the prosecution has proved all the ingredients of the offence of dowry death and, therefore, the presumption under Section 113-B is to be raised against the appellant, which has not been rebutted by him. Therefore, in our opinion, the conviction of the appellant under Section 304-B IPC is not sustainable. Now the question arises for consideration is whether in the facts and circumstances of the case, the appellant can be held guilty for committing the offence under Section 306 IPC with the aid of Section 113- A of the Act. According to Section 306 IPC, any person who abets the commission of suicide, is liable to be punished under the said Section. Section 107 of the Indian Penal Code lays down the ingredients of abetment, which includes instigating any person to do a thing or engaging with one or more persons in conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or intentionally aids, by any act or illegal omission, the doing of that thing. In the present case there is no direct evidence which proves that the appellant had either aided or instigated the deceased to commit suicide. But in absence of the direct evidence, the prosecution can rely upon the presumption raised against the accused under Section 113-A of the Act, which provides under what circumstances a presumption as to abetment of suicide by a married woman can be raised. According to the said Section, the presumption as to abetment of a married woman can be raised, if from the prosecution evidence it is shown that the woman had committed suicide within seven years of her marriage and her husband or relative of her Crl.Appeal No.869-DB of 2007 -14- husband had subjected her to cruelty, then the Court may raise presumption of abetment to commit suicide by her husband or such relative of her husband.