CRA No.1199-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.1199-SB of 2001 Date of decision : 03.01.2011 Dharmender ...Appellant Versus State of Haryana …Respondent CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN **** Present : Mr. Anmol Pratap Singh Mann, Advocate, for the appellant. Mr. Kshitij Sharma, AAG, Haryana. **** JITENDRA CHAUHAN, J. (ORAL) 1. The appeal in hand has been directed against the judgment and order dated 25/29.09.2001, passed by the learned Additional Sessions Judge, Rewari (hereinafter referred to as the ‘trial Court’), whereby the accused-appellant, Dharmender, has been convicted and CRA No.1199-SB of 2001 -2- sentenced for the commission of offence punishable under Sections 304- B and 498-A IPC, and awarded him sentence as under:- Under Section 304-B IPC RI for ten years Under Section 498-A IPC RI for one year and fine of ` 1,000 or in default, RI for three months However, both the sentences were ordered to run concurrently. 2. Brief facts of the case are that Bala alias Raja Bala, the deceased, aged 22 years, was married to the accused-appellant, Dharmender, in June 1994 according to Hindu rites and rituals. The dowry articles were given in the marriage as per capacity. After the marriage, the complainant, Om Parkash, elder brother of the deceased, went to bring her sister from her matrimonial home, when the accused, Dharmender (husband), Prem Devi (mother-in-law) and Jitender (brother-in-law), raised a complaint about the less dowry received by them. They also asked him as to why they were not given a motorcycle. The complainant pleaded financial constraints, however, the accused threatened that his sister would be thrown out of the house in case their demand of a motorcycle was not met. Thereafter, the complainant and his sister, the deceased, came to their house and narrated the entire incident to their parents. She remained at her parental house for about 7- 8 months. During this period, Prem Devi, mother-in-law of the CRA No.1199-SB of 2001 -3- deceased, visited them and told them that Bala would be taken back to her matrimonial home only if the demand of motorcycle is met. After some time, Dharmender came and took along Bala to his house. 3. Thereafter, a letter was received from the deceased, wherein it was stated that she was being harassed due to the non-fulfillment of the demand of motorcycle. The complainant visited his sister at Village Chhajiyawas where he was again told by the deceased about the physical torture and threats of elimination at the hands of the accused persons. The complainant tried to persuade the accused persons and also pacified his sister, the deceased. Another letter was received by the Mausa (husband of mother’s sister) of the complainant, written by the deceased, alleging that the accused persons tried to kill her by mixing poison in the water. The matter was taken up with the accused-appellant, Dharmender. However, the accused persisted with their demand for motorcycle. 4. On 5.10.1997, a Constable visited the house of the complainant and told them that the dead-body of the deceased was found lying near the Village Dhaliyawas. The complainant visited the spot and identified the dead-body of his sister, Bala. On enquiries, the complainant came to know that her sister had ended her life by consuming some poisonous substance due to the harassment meted out to her by the accused persons. CRA No.1199-SB of 2001 -4- 5. In this backdrop, FIR, Ex.PA/2, was registered under Sections 498-A and 304-B IPC, against the accused persons. The investigations were conducted and upon presentation of challan, the case was committed to the Court of Sessions. 6. In order to bring home guilt to the accused, the prosecution examined as many as ten witnesses, namely, Dharam Pal as PW1; Om Parkash as PW2; Jagdish as PW3; Bal Kishan as PW4; Gurdial Singh, Patwari, as PW5; ASI Anil Kumar as PW6; HC Ram Chander as PW7; SI Ram Niwas as PW8; Dr. Chander She khar as PW9; and SI Magan Singh as PW10. 7. In their statements under Section 313 Cr.P.C., the accused persons denied all the incriminating circumstances and evidence appearing against them in the prosecution case and pleaded innocence. 8. In defence, they examined Sewa Singh, Deputy Superintendent, District Jail, Mohindergarh, as DW1; Khem Ram as DW2; Amar Singh as DW3; Vijay Rustogi, Handwriting and Finger Print Expert, as DW4; Mangal Singh as DW5; and the accused- appellant, Dharmender, as DW6. 9. After hearing learned counsel for the parties and perusing the material evidence on record, learned trial Court, while acquitting the accused, Jitender and Prem Lata alias Prem Devi, convicted and CRA No.1199-SB of 2001 -5- sentenced the appellant, Dharmender, as indicated at the outset of this judgment. 10. The present appeal was admitted on 19.10.2001 by this Court. 11. The learned counsel for the appellant submits that the prosecution has failed to prove the demand of dowry soon before the death. Therefore, no offence under Section 304-B IPC is made out. The learned counsel for the appellant also assailed the writing, Annexure P2 on the ground that it is a suspicious document because portion A1 to A has been added subsequently. The counsel submits that even if the suicide note, Annexure P1 is taken to be true, there is no mention of demand of dowry in Annexure P1. It reads as under:- “Gaon Nimi Chhajiyawas Jila : Mahendergarh Sher Singh, Dharmender, Prabhudayal, Dharmender, Prem Toni ne mujhe bahut tang kiya hai, is liye mai mar gai hoon.” The Learned counsel for the appellant, thus, submits that the prosecution has failed to prove its case against the appellant. 12. The learned counsel further submits that though the report of the Chemical Examiner states that the death was due to poisoning but no symptoms of poisoning were noticed as is evident from the post mortem CRA No.1199-SB of 2001 -6- report, Ex.PG, and the testimony of Dr. Chander Sheikhar, PW9. The learned counsel further submits that the deceased had committed suicide as she was under depression on account of not conceiving even after 5 years of married life and was prevented to go outside the house for visiting ‘Tantriks’ by the accused-appellant. 13. Learned counsel further submits that at the time of her suicide, Lipstick (Ex.P3), Nail Polish (Ex.P4) and Boroplus Cream (Ex.P5), and two coins each of one rupee and fifty paise denomination respectively, were recovered from near the dead body. In addition, some medicine was also recovered from near the dead body which was also taken into possession by the police. 14. All these articles have been shown to be recovered from near the dead body in order to strengthen the prosecution story. In DDR No.7 dated 4.10.1997, there is no mention of any recovery of the above articles which were introduced later on. He further submits that in rural areas, there is pressure upon the newly-married women to give birth to child soon after the marriage. The failure of the deceased to give birth to a child even after five years from the date of her marriage might have left her depressed. The counsel submits that the conduct of the complainant before and after the occurrence is of suspicious nature. The complainant, with an ulterior motive to extract money from the appellant, visited him in jail. There was no necessity on the part of the complainant to meet the appellant except to pressurize the appellant or CRA No.1199-SB of 2001 -7- extract some amount from him. The conduct of the complainant is unnatural, therefore, his testimony deserves to be ignored. 15. On the other hand, the learned counsel for the State submits that the prosecution has fully proved its case. The documents, Ex.P1 and Ex.P2, which are the handwriting of the deceased, are fully proved on record. The Handwriting Expert proves that this is the handwriting of the deceased. Dharampal, PW1, is a witness of the recovery. Om Parkash, PW2, is the complainant and brother of the deceased, has fully proved the prosecution case and the handwriting of his sister on Ex.P1 and Ex.P2. His statement is corroborated by Jagdish, PW3. 16. I have heard learned counsel for the parties and perused the record. 17. In order to attract the provisions of Section 304-B IPC, following ingredients are to be satisfied:- (a) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (b) Such death must have occurred within 7 years of the marriage. (c) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her death (husband ?); and (d) Such cruelty or harassment must be in connection with the demand of dowry. CRA No.1199-SB of 2001 -8- 18. From the perusal of the oral and documentary evidence, it is clear that the instances of demand of dowry relate back to the year 1994. There is no other document on record to suggest that the demand of dowry was raised. 19. The man may speak lies but the documents do not. In the document, Ex.P1, which is the alleged handwriting of the deceased, there is no demand of dowry soon before death. The date of marriage in this case is June, 1994. It is an admitted fact that she could not conceive, so there must be some quarrel on trifling matter in the family. Dr. Chander Shekher, PW9, states that there was no external mark of injury on the body of Bala, the deceased. The Chemical Examiner’s reports, Ex.PE and Ex.PF, confirm that cause of death is poisoning of Endosulpane. There is a possibility of the deceased having consumed the poison herself without the knowledge of the appellant. Dharmender, the appellant, appeared as DW6 and stated that he was married with Bala @ Raja Bala on 19.6.1994. He states that his wife was in the habit of leaving the house without his permission. She was also under the influence of a ‘tantrik’ as she had no issue. Since 2.10.1997, the deceased was absent from the house, the appellant came to know about her death on 5.10.1997. He has brought on record a letter, Ex.DA, wherein she has stated that she was well in the family. This letter was written on 18.8.1997 to her Mausa and Mausi. There is no whisper about her harassment on account of dowry in the letter, Ex.DA. So, the CRA No.1199-SB of 2001 -9- prosecution has failed to prove the most important ingredient of demand of dowry ‘soon before the death’. The demand of dowry soon before her death or the fact of her being subjected to cruelty by her husband or any relative of her husband on account of demand of dowry is not proved in this case. Therefore, no offence under Section 304-B IPC is proved against the accused-appellant. 20. However, a young woman has died an unnatural death. It is to be seen from the circumstances of the case as to what offence is made out. In Gangula Mohan Reddy Vs. State of Andhra Pradesh, 2010(1) RCR (Criminal) 604, it was held as under:- 1. In order to convict a person under Section 306 IPC, there has to be a clear mens rea to commit the offence – It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he committed suicide. 2. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing – Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. CRA No.1199-SB of 2001 -10- 3. There should be intention to provoke, incite or encourage the doing of an act by the latter – Each person’s suicidability pattern is different from the others – Each person has own idea of self esteem and self respect – Therefore, it is impossible to lay down any straight-jacket formula in dealing with such cases – Each case has to be decided on the basis of its own facts and circumstances. 21. When a girl gets married, she goes to her matrimonial home with the dreams of getting love and affection from her husband and for leading a happy married life. If she could not conceive a child, it is not her fault. In rural society, the in-laws including husband start taunting her on account of her infertility or they change their behaviour. The illiterate women believed in tantrik or pir babas to cure her infertility. In this case also, the dead body was lying near the place of some pir baba. The abetment for committing suicide can be active or passive. From the facts and circumstances of the case, it clearly comes out that the victim, Bala, committed suicide and her husband, Dharmender, the appellant, had abetted in the crime of suicide by his wife. 22. The suicide note, Ex.P1, shows that there was some trouble in the family for which the husband was responsible. Counsel submits that the couple was residing separately from other members of the family. ‘Abetment’ is to be decided on the basis of the facts and circumstances CRA No.1199-SB of 2001 -11- of each case. The accused-appellant appears to have been instigated the deceased in committing suicide. So, the husband-appellant is held guilty under Section 306 IPC read with Section 498-A IPC. His conviction under Section 304-B IPC is set aside. 23. Learned counsel for the appellant submits that the husband has already undergone 04 years 04 months and 16 days of actual sentence. He is facing the agony of trial since 5.10.1997. He has neither misused the concession of bail, nor he is a previous convict. He may be the victim of the circumstances. 24. Keeping in view the facts and circumstances, I deem it proper if the appellant, Dharmender, is sentenced to the period already undergone. 25. With this modification in the conviction and reduction in the sentence, this appeal is disposed of. 03.01.2011 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to the Reporter ? Yes / No