Crl. Appeal No. 114-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 114-SB of 1997 Date of Decision : May 08, 2008. Som Nath and another .... Appellants Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. G.S.Gill, Senior Advocate with Mr. R.K.Dhiman, Advocate for the appellants. Mr. P.S.Sullar, DAG, Punjab for the respondent. * * * L.N.MITTAL, J. : By this order, we propose to dispose of two Criminal Appeals bearing Crl. Appeal No. 587-DBA of 1997 – preferred by State of Haryana against Som Nath and his mother Pushpa Devi (hereinafter referred to as the accused) and Crl. Appeal No. 114-SB of 1997 – filed by the accused Som Nath and Pushpa Devi against State of Haryana, arising out of the same judgment of conviction and order of sentence dated 01.02.1997, whereby the accused have been acquitted under Section 304-B of the Indian Penal Crl. Appeal No. 114-SB of 1997 2 Code, but have been convicted under Section 498-A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years each and to pay fine of Rs.1,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for six months. At the outset, it has to be noticed that during pendency of appeals, accused Som Nath has since died and copy of his Death Certificate has also been placed on record. Accordingly, both the appeals qua Som Nath have abated and and are accordingly disposed of as having abated. The prosecution case in nutshell is that marriage of Suman (since deceased) – daughter of complainant Janak Raj Sharma of Jwalapur, District Haridwar, was solemnized with accused Som Nath of Yamuna Nagar on 01.10.1992. The complainant gave dowry in the marriage beyond his capacity but since after the marriage itself, both the accused Som Nath and his mother Pushpa Devi started harassing the deceased. They used to make dowry demands from time to time. Sometimes, they made demand of Rs.20,000/-. Sometimes, they made demand of money (without specifying the amount) for starting some occupation. The complainant party had been meeting some demands as per capacity and had also been counselling the accused, but they had been levelling false allegations against the deceased and even saying that she was suffering from soul of some ghost or was insane. About six months before the occurrence, the complainant along with his uncle Bal Mukand went to the house of the accused. The accused assured that they would not harass the deceased. However, even thereafter, the accused had been beating the deceased and also did not provide her food and kept on harassing her. On 29.01.1994, the complainant was informed by son of Bal Mukand that Suman Lata had died at about 09:00 P.M. on the preceding night, as informed by some neighbour of the accused. The complainant party reached the house of the accused and found Suman Lata lying dead in the house. Believing that both the accused had Crl. Appeal No. 114-SB of 1997 3 tortured or starved the deceased to death for not meeting their dowry demands, the complainant moved application Ex.P-G to the police and thereupon FIR Ex. P-C was registered. On post-mortem examination, cause of death could not be opined immediately. Viscera was sent to Chemical Examiner. Accused were arrested on 30.01.1994. A wedding card, three letters and five photographs were handed over by the complainant to the police on 04.03.1994 vide Memo Ex.P-K. Necessary investigation proceedings were conducted and statements of witnesses were also recorded during investigation. Charge under Sections 498-A and 304-B IPC read with Section 34 IPC was framed against both the accused. They pleaded not guilty and claimed trial. Dr. N.K.Kalia (PW-1) stated that he along with Dr. S.K.Gupta conducted post-mortem examination of the deceased. Viscera was sent to Chemical Examiner. Opinion regarding cause of death was deferred to await the report of Chemical Examiner. In the witness-box, the doctor, after seeing the Chemical Examiner's report (Ex.P-B), according to which, organo phosphorus pesticide was detected in the viscera of the deceased, opined that cause of death in the instant case was poisoning and the aforesaid pesticide detected in the viscera was sufficient to cause death in ordinary course of nature. Constable Chaman Lal (PW-2), Head Constable Raj Kishan (PW-3) and Om Parkash Draftsman (PW-4) are formal witnesses. Affidavit of another formal witness Randhir Singh, Head Constable was also tendered in evidence. ASI Ramesh Chand (PW-5) and SI Jagdish Ram (PW-6) stated about investigation of the case. Bal Mukand (PW-7) and complainant Janak Raj Sharma (PW-8) have broadly stated according to the prosecution version. Both the accused in their statements under Section 313 of the Code of Criminal Procedure, while admitting their relationship with the Crl. Appeal No. 114-SB of 1997 4 deceased, denied all the incriminating circumstances and claimed to be innocent. They alleged that they never made any dowry demands and the deceased was living happily with them. However, she was in the habit of eating coarse wheat grains smeared with pesticides and resultantly, she fell ill. The accused got her treated from many doctors, but she ultimately died. No evidence was led by the accused in their defence. The learned Additional Sessions Judge, vide his impugned judgment dated 01.02.1997, held that the prosecution has failed to prove its case under Section 304-B IPC and the accused were accordingly acquitted of the said offence, but prosecution case for offence under Section 498-A was held proved beyond the shadow of reasonable doubt and both the accused were convicted of the said offence. After hearing the parties on quantum of sentence, learned Additional Sessions Judge, vide order dated 01.02.1997, sentenced the accused to undergo rigorous imprisonment for three years each and to pay fine of Rs.1,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for six months. Feeling aggrieved, State of Haryana has filed Crl. Appeal No. 587-DBA of 1997 praying that the accused be also convicted for offence under Section 304-B of the Indian Penal Code, whereas the accused have preferred Crl. Appeal No. 114-SB of 1997 praying that their conviction and sentence as recorded by the trial court be set aside and they be acquitted. We have heard learned counsel for the parties and perused the records. In so far as the State appeal is concerned, learned Additional Sessions Judge has recorded cogent and convincing reasons for holding that offence under Section 304-B of the Indian Penal Code is not proved. It is undisputed that Suman Lata was married on 01.10.1992 and she died in the house of the accused on 28.01.1994. Cause of her death is also proved to be on account of organo phosphorus pesticide, in view of Report of Chemical Crl. Appeal No. 114-SB of 1997 5 Examiner and the opinion of Dr. N.K.Kalia. There is no evidence in support of plea of the accused that the deceased was in the habit of eating coarse wheat grains smeared with pesticides and consequently, she fell ill and ultimately died as she could not recover inspite of treatment by many doctors. The said plea has, therefore, been rightly rejected even by the trial court. On the other hand, death of Suman Lata occurred within seven years of her marriage, otherwise than under normal circumstances. However, to establish the offence of dowry death, it has to be further established by the prosecution that soon before her death, the deceased was subjected to cruelty or harassment by the accused for or in connection with any demand of dowry. Learned trial court found that the aforesaid essential ingredient to constitute the offence of dowry death punishable under Section 304-B IPC, has not been established by the prosecution. The aforesaid finding of the learned trial court cannot be said to be perverse or on wrong appreciation of the evidence and therefore, the said finding does not warrant any interference in appeal preferred by the State. Bal Mukand (PW-7) stated that seven days after the marriage, Suman Lata came to his house and told that she was subjected to harassment by the accused for bringing insufficient dowry. However, this is an improvement by the witness in the witness-box over his statement Ex.D-A made to the police during investigation, with which the witness was confronted during cross- examination. So, the said part of statement of Bal Mukand cannot be relied upon, being material improvement in his testimony. He also made some other improvements in his testimony in the witness-box as noticed in the impugned judgment. Keeping in view the same, implicit reliance cannot be placed on his testimony. Then we are left with the statement of complainant Janak Raj Sharma (PW-8), who is father of the deceased. His testimony remains incorroborated. Obviously, he being father of the deceased, is an interested Crl. Appeal No. 114-SB of 1997 6 witness. Janak Raj Sharma stated in the witness-box that he accompanied by his brother Vinod Kumar, Bal Mukand (PW-7) and wife Kailash Rani had gone to the house of the accused in December 1993. However, in statement Ex.P-G, on the basis of which FIR was registered, it was mentioned that he accompanied by Bal Mukand only, had gone to the house of the accused and it was about six months before the death of his daughter. Thus, according to statement Ex.P-G, the complainant and Bal Mukand had gone to the house of the accused in or about July 1993 and not in December 1993, as stated in the witness-box. In statement Ex.P-G, he also did not mention that his brother Vinod Kumar and wife Kailash Rani had also accompanied him to the house of the accused. Letter Ex.P-2 was written by the deceased to her father, wherein she complained that her husband i.e. Som Nath accused did not speak with her properly. She also requested her father to send some family member to her as she was not feeling at home in the matrimonial home. However, in this letter, the deceased did not make any reference to any kind of demand made from her by the accused. Thus, letter Ex.P-2 written by the deceased to her father does not corroborate the prosecution version that there was any dowry demand by the accused. Consequently, uncorroborated statement of complainant alone is not sufficient to establish dowry demand by the accused or harassment and cruelty towards the deceased by the accused for the same. The prosecution has also placed on record letter Ex.P-3 written by Pushpa accused and letter Ex.P-4 written by father-in-law of the deceased, wherein the complainant party was requested to send Suman Lata to the matrimonial home. If Pushpa accused had been making dowry demands and had been harassing the deceased for the same, then she would not have written letter Ex.P-3, nor father-in-law of the deceased would have written letter Ex.P-4 to the complainant. Crl. Appeal No. 114-SB of 1997 7 From the aforesaid discussion, it emerges that the view taken by the trial court that offence under Section 304-B of the Indian Penal Code is not proved beyond doubt, is a reasonable view based on proper appreciation of evidence on record and therefore, even if it be assumed that another view of the matter was also possible, even then acquittal of the accused for offence under Section 304-B of the Indian Penal Code cannot be set aside. Consequently, State appeal bearing Crl. Appeal No. 587-DBA of 1997 has to be dismissed and is accordingly dismissed. Now, coming to the second appeal bearing Crl. Appeal No. 114-SB of 1997 preferred by the accused, the same also deserves to be dismissed because guilt of the surviving appellant Pushpa for offence under Section 498-A of the Indian Penal Code is proved beyond reasonable doubt. Death of Suman Lata by consuming poison is fully proved as already noticed herein above. She died within 16 months of her marriage. She died in the matrimonial home. Pushpa-appellant is mother-in-law of the deceased. It is thus apparent that the deceased was driven to commit suicide because of the harassment or cruelty she suffered in the matrimonial home at the hands of the accused. In this context the learned trial court has rightly relied on the statements of Bal Mukand (PW-7) and Janak Raj Sharma (PW- 8) and letter Ex.P-2 written by the deceased. Statements of Bal Mukand and Janak Raj Sharma are not sufficient to prove the demand of dowry as discussed herein before, but their statements are sufficient to prove that the deceased was being harassed in the matrimonial home, whatever be the reason for the same. Letter Ex.P-2 further corroborates their statements. The defence plea that the deceased was in the habit of eating coarse grains of wheat smeared with pesticides leading to ailment and death, is not substantiated by any material on record. On the contrary, the Crl. Appeal No. 114-SB of 1997 8 aforesaid defence plea, on the face of it, is inherently improbable. Dr.N.K.Kalia also denied the defence suggestion in cross-examination that coarse grains mixed with some pesticides consumed by a person in small quantity can lead to death. Letters Ex.P-3 and Ex.P-4 also tend to show that all was not well with the deceased in the matrimonial home because inspite of these letters and another letter, to which reference has been made in letter Ex.P-3, the deceased was not being sent to matrimonial home and Som Nath – husband of the deceased was also not coming to her parental home to bring her back to matrimonial home. The husband was not even speaking properly with the deceased while in the matrimonial home as per contents of the letter Ex.P-2 written by the deceased to her father. The irresistible conclusion of the discussion aforesaid is that guilt of the accused under Section 498-A of the Indian Penal Code is proved beyond any reasonable doubt and since harassment or cruelty towards the deceased drove her to death, the sentence of imprisonment for three years, besides fine of Rs.1,000/-, as imposed by learned trial court, also cannot be said to be excessive so as to warrant interference in appeal. Accordingly, we find no merit in Crl. Appeal No. 114-SB of 1997 preferred by the accused as well and the said appeal qua Pushpa is also accordingly dismissed. ( L.N.MITTAL ) JUDGE May 08, 2008 ( ADARSH KUMAR GOEL) monika JUDGE