IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.741-SB of 1999 Date of Decision: 05.03.2009 Surinder @ Bablu and others Appellants Versus State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.R.N.Lohan, Advocate for the appellants Mr.S.S.Randhawa, Addl.A.G. Haryana for the respondent-State …. Jasbir Singh, J. This judgment will dispose of Criminal Appeal No.741-SB of 1999, Criminal Appeal No.469-SB of 2000 and Criminal Appeal No.24-DBA of 2001, arising out of common judgment and order dated 30.7.1999 and 31.7.1999 respectively. To dictate judgment, facts are being taken from Criminal Appeal No.741-SB of 1999. Smt.Kanta wife of appellant No.1 Surinder @ Bablu died on 28.3.1998. Appellant Nos.2 and 3 are the father-in-law and mother-in-law of the deceased. It was allegation against all the three that they have been taunting and harassing the deceased for bringing less dowry, they have demanded cash amount of Rs.20,000/- and a she-buffalo towards dowry, Criminal Appeal No.741-SB of 1999 2 their demand was satisfied about one year before death of Smt.Kanta. Thereafter, they again demanded Rs.15,000/- from parents of the deceased, about two months earlier to the date of occurrence. Fed up with their behaviour, she committed suicide on the above said date. It was alleged against the appellants that they had killed Smt.Kanta by administering her poison. On a statement made by Jayanti Ram (PW1), father of the deceased, FIR (Ex.PA) was recorded against the appellants on 28.3.1998 at 2.40 PM in police station Sadar Jind. The appellants were charge sheeted for commission of offences under Sections 304-B, 498-A/34 IPC. After trial, they were acquitted of the charge framed against them under Section 304-B IPC, however, they were convicted and sentenced for commission of an offence under Section 498-A/34 IPC. Hence, this appeal. The State of Haryana has filed Criminal Appeal No.24-DBA of 2001, impugning judgment under challenge, acquitting the appellants for commission of an offence under Section 304-B IPC. The State has also filed Criminal Appeal No.469-SB of 2000 with a prayer that sentence awarded to the appellants, for commission of an offence under Section 498-A IPC, be enhanced. As per case of the prosecution, deceased Kanta was married with appellant Surinder @ Bablu on 24.5.1991. Prosecution’s story, as noticed by the trial Court in paragraph No.2 of its judgment, reads thus:- “xxxxx PW Jayanti Ram is a father of deceased Ms.Kanta. Ms.Kanta was married with accused Surinder @ Bablu on 24.5.91 according to the Hindu rites and ceremonies and PW Jayanti Ram had given dowry on the occasion as per his Criminal Appeal No.741-SB of 1999 3 capacity. After the marriage Ms.Kanta was sent to her matrimonial home at village Dhanda-Kheri but the accused persons were not satisfied with the dowry. Accused Surinder @ Bablu is a husband, accused Kapura is a father-in-law and accused Smt.Chandroli is a mother-in-law of deceased Ms.Kanta. Initially Ms.Kanta was sent to her matrimonial home 2/3 times and whenever she used to come to the parental house, she had been telling to PW Jayanti Ram and other family members that she was being harassed and maltreated by her husband, father-in-law and mother-in-law for dowry as they had been demanding a cash amount of Rs.20,000/- and a she- buffalo. After a period of about 1 ½ years of the marriage of Ms.Kanta PW Jayanti Ram sent his son Gian Singh PW to the house of the accused and on his return he told PW Jayanti Ram and other family members that the accused persons were demanding a cash amount of Rs.20,000/- and a she-buffalo and that the accused had sent Ms.Kanta with him forcibly to meet their demand. Similar narration was given to the family members by Ms.Kanta on that occasion and at that time she was carrying a child of 7/8 months in her womb. After a period of about one month Ms.Kanta delivered a female child at her parental house and after the delivery she remained at her parental house for three years and in that duration neither the accused nor any member of their family paid a visit to the parental house of Ms.Kanta nor any family members of the Criminal Appeal No.741-SB of 1999 4 parental house of Ms.Kanta visited her matrimonial home. After a period of three years PW Jayanti Ram accompanied by his two brothers Sube Singh and Bhoop Singh, nephew Raj Singh and 3 /4 other persons of the village went to the matrimonial home of Ms.Kanta and they asked the accused persons to bring Ms.Kanta to the matrimonial home but the accused persons told them that they would bring Ms.Kanta to the matrimonial home only if a sum of Rs.20,000/- in cash and a she-buffalo were paid to them. In the interest of the rehabilitation of his daughter PW Jayanti Ram told the accused persons that he would meet their demand within two months and therefore, they should bring Ms.Kanta to the matrimonial home. Thereafter accused Surinder @ Bablu came to the parental house of Ms.Kanta and took Ms.Kanta to her matrimonial home with him. After a period of two months of sending Ms.Kanta to the matrimonial home PW Jayanti Ram and his son Gian Singh went to the house of the accused and paid them a sum of Rs.20,000/- and a she-buffalo. After a period of about two months thereafter Ms.Kanta again came to her parental house and she told to PW Jayanti Ram and other family members that the accused persons kept her happy for one month but now they have again started to demand a sum of Rs.15,000/- and that she was being harassed by the accused persons for the said amount. After “Holi” festival accused Surinder @ Bablu came to the parental house of Ms.Kanta and at that time he had demanded a Criminal Appeal No.741-SB of 1999 5 sum of Rs.15,000/- from PW Jayanti Ram and other family members and he specifically told that the amount be sent at an early date failing which they would harass Ms.Kanta. PW Jayanti Ram told accused Surinder @ Bablu that he was a poor man and therefore, it would not be possible for him to arrange for the money but he sent his daughter Ms.Kanta to the matrimonial home with accused Surinder at that time.” It was further case of the prosecution that on 28.3.1998, one Ratna of village Dhanda Kheri came to the house of Jayanti Ram (PW1) and told him that his daughter Smt.Kanta had died. Jayanti Ram (PW1) accompanied by others, went to house of the appellants in village Dhanda Kheri, where they found dead body of Smt.Kanta lying on a cot, in a room of the outhouse, meant for tethering the cattle. On enquiry by Jayanti Ram (PW1), it transpired that his daughter had been killed by the appellants. He went to the police station and on his statement, FIR (Ex.PA) was recorded against the appellants by SI Chander Bhan (PW9) at about 2.40 PM on 28.3.1998. SI Chander Bhan (PW9) went to the spot, prepared inquest report (Ex.PJ) with regard to dead body of Smt.Kanta and sent it for post-mortem examination, which was conducted by Dr.A.S.Ahalwat (PW10) on 29.3.1998. In the meantime, investigating officer got prepared rough site plan of the place of occurrence (Ex.PK), with correct marginal notes. He also recorded statement of Bhoop Singh under Section 161 Cr.P.C. Special report reached the Ilaqa Magistrate at 4.00 PM on 28.3.1998. The accused were arrested thereafter. On completion of investigation, final report was put in Court for trial. The appellants were charge sheeted to which they pleaded not guilty and claimed Criminal Appeal No.741-SB of 1999 6 trial. The prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. Dr.A.K.Vohra (AW1) was produced in Court to show that appellant No.1, namely, Surinder @ Bablu was mentally retarded. On completion of prosecution’s evidence, separate statements of the appellants-accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them which they denied, pleaded innocence and false implication. Appellant No.1 Surinder @ Bablu took up the following defence:- “PW-1 Jayanti Ram demanded Rs.6000/- in the year of marriage from my co-accused Kapura to which Kapura denied. Then again PW-1 Jayanti Ram demanded Rs.5000/- from my father Kapura on the plea that his son Gian Singh was to be enrolled in the police and so he required the amount which was paid to him. Gian Singh is a matriculate and is unemployed. Whenever Gian Singh came to our house he was drunk and always demanded money and even fair of the bus. PW-1 Jayanti Ram is a very poor man and this false case was got registered due to greed. My father Kapura sent Ratan Singh in matador, owned by one Ranbir son of Bani Singh at about 2 A.M. night to village Bhaini-Chanderpal to inform about the death of Ms.Kanta and they came in that very matador at 8 A.M. Smt.Kanta was suffering from repeated attacks of Asthma and was too weak as she could not get good food at the time of delivery of female child. She had died a natural death. When Criminal Appeal No.741-SB of 1999 7 PW Jayanti Ram and others I and my co-accused Kapura were present whereas my mother had gone to her parental home. I had every love and affection for Ms.Kanta and no demand of dowry was ever made nor she was ever harassed. The medicines of Asthma were being brought from her parental house and she used to take pills. I am innocent and have been falsely involved in this case.” However, they led no evidence in defence. The trial Court on appraisal of evidence found appellant No.1 guilty for commission of an offence under Section 498-A IPC. Others were convicted with the aid of Section 34 IPC. They were sentenced to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.2000/- with a default clause. Counsel for the appellants has vehemently contended that the trial Court was not justified in convicting and awarding sentence to the appellants. The prosecution has failed to prove any demand made by the appellants from the deceased/ her parents in connection with dowry. Counsel further argued that financial status of Jayanti Ram (PW1) was such that the appellants would not have expected him to pay any amount to them. Appellant No.2 Kapura was owner of ten acres of land, he was financially very sound. It was Jayanti Ram who borrowed money from appellant No.2 and not vice-versa. He prayed that appeal be allowed, judgment and order under challenge, be set aside. Prayer made has vehemently been opposed by the State counsel. By making reference to the statements made by prosecution witnesses, he prayed that the trial Court has rightly convicted and awarded sentence to the Criminal Appeal No.741-SB of 1999 8 appellants. He further argued that a very lenient treatment has been given to the appellants, the Court below was not justified in acquitting them for commission of an offence under Section 304-B IPC. The prosecution has proved on record that marriage between Smt.Kanta (deceased) and appellant No.1 Surinder @ Bablu was solemnized on 24.5.1991. Death has occurred within seven years of the marriage and was unnatural. There was heavy burden upon the appellants to prove to the contrary. He further prayed that even for commission of an offence under Section 498-A IPC lesser punishment has been awarded to the appellants. Prayer is to enhance the same. It is apparent from the records that in FIR, exact date of marriage is not mentioned. It was only mentioned that marriage of appellant No.1 with the deceased was solemnized about 5 ½- 6 years prior to the date of occurrence. In his statement in Court, Jayanti Ram (PW1), father-in-law of the deceased stated that marriage was solemnized on 24.5.1991. Counsel for the respondent –State, to prove the above said fact, placed reliance upon Photostat copy (mark A) extracted from Bahi, to show that marriage was solemnized on the above said date and entries regarding Shagun, received from the relatives, were made therein. We have seen the document Mark-A on record. Original of the same was not produced in Court, despite its availability with a close relative of Jayanti Ram (PW1). There exists cutting in the above document (Mark-A). Taking note of above said fact, the trial Court was justified in observing that the prosecution has failed to establish date of the marriage of the deceased with Surinder, the appellant. The entire evidence in that regard was discussed by the trial Court in paragraph Nos.13 Criminal Appeal No.741-SB of 1999 9 and 14 of the judgment, under challenge. The trial Court has rightly said that Jayanti Ram (PW1) and Gian Singh (PW2) have miserably failed to establish date of marriage of the deceased with the appellant No.1. Perusal of statements made by these witnesses reveals that except date in dispute, they have failed to remember any other date of important event like marriage of other children in the family etc. There exists cutting in the Photostat of Bahi (Mark-A). Despite opportunity available, original Bahi was not produced in Court. In view of above, no reliance can be placed upon Bahi entries (Mark- A). To prove the charge under Section 304-B IPC, it was incumbent upon prosecution to prove date of marriage and then to show that death has occurred within seven years of the marriage and it was unnatural. After looking into statements made by PW1 and PW2, the trial Court was justified to show that the prosecution has failed to prove that marriage of the deceased was solemnized with appellant No.1 on 24.5.1991. To prove the above said fact further reliance was placed upon statement made by Ram Chander (PW4) a Priest, who allegedly performed religious ceremonies at the time of marriage of the deceased. This witness has not supported case of the prosecution and was declared hostile. The investigating officer SI Chander Bhan (PW9) has stated that he has correctly recorded statement (Ex.PC) of Ram Chander (PW4), if that is so, in that statement, date of marriage was mentioned as 21.5.1990. If the marriage was solemnized on the above said date, then period of seven years had elapsed before the date of occurrence. In view of above, we feel that the trial Court was justified in acquitting the appellants for commission of an offence under Section 304-B IPC. Criminal Appeal No.741-SB of 1999 10 Now, we are to see whether conviction of the appellants was justified under Section 498-A IPC or not. The trial Court has noticed that the appellants had raised demand for dowry immediately after marriage. They were demanding Rs.20,000/- in cash and a she-buffalo. On account of their harassment, deceased went to her parents house. She stayed there for about three years and with great persuasion, she was taken back to her matrimonial house. Jayanti Ram (PW1) has stated that one year prior to the date of occurrence, above said demand made by the appellants was met with great difficulty. About 1 ½ months prior to the date of occurrence, appellants again started demanding cash amount of Rs.15,000/-. Despite lengthy cross- examination, the defence has failed to shatter testimony of PW1 and PW2 with regard to the above said allegation. The trial Court has thoroughly discussed this aspect in paragraph Nos.17 to 19 of the judgment, under challenge and has rightly arrived at a conclusion that the appellants had been harassing the deceased for demand of dowry. In view of above said facts, we feel that no case is made out to interfere so far as conviction of the appellants under Section 498-A IPC is concerned. At this stage, counsel for the appellants stated that appellants had already undergone about 1 ½ years of actual sentence. Female child left behind by the deceased is being looked after by them. Appellant Nos.2 and 3 are more than 70 years of age and if at this stage, they are sent behind the bars, probably they will die in prison. He prayed that leniency be shown to the appellants and their sentence be reduced. Criminal Appeal No.741-SB of 1999 11 After considering the facts of this case, we are not inclined to interfere so far as sentence awarded to appellant No.1, namely, Surinder @ Bablu is concerned. Appeal qua him stands dismissed. However, taking note of old age of appellant Nos.2 and 3 and a fact that if they are sent behind the bars, there will be nobody in the house to look after the minor female child, we reduce their sentence to the already undergone by them. Criminal Appeal No.741-SB of 1999 is disposed of as mentioned above. In view of facts stated above, no case is made out to interfere at the instance of State in Criminal Appeal No.24-DBA of 2001 and Criminal Appeal No.469-SB of 2000 and the same are dismissed. (Jasbir Singh) Judge 05.03.2009 (Jora Singh) gk Judge