Criminal Appeal No. 217-SB of 1994 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 217-SB of 1994 Date of Decision: 21.03.2009 Ashok Kumar son of Bal Krishan son of Bahadar Chand aged 22 years employee, resident of Ghubaya, P.S. Jallalabad Distt. Ferozepur. ... Appellant Versus The State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipin Ghai, Senior Advocate with Mr. Deepak Garg, Advocate, for the appellant. Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence, dated 29.03.94, rendered by the Court of Sessions Judge, Ferozepur, vide which it convicted Ashok Kumar, accused, for the offence, punishable under Section 304-B of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for a period of 10 years, whereas, it acquitted Subhash Chander, Bal Krishan, Maya Devi, Om Parkash, and Chand Rani. Criminal Appeal No. 217-SB of 1994 2 2. The facts, in brief, are that Veena Rani, sister of Om Parkash, PW3, was married to Ashok Kumar, accused, about two and a half years, prior to 06.07.90, the date of occurrence. At the time of marriage, sufficient dowy was given according to the capacity of the parents of the deceased i.e. T.V., scooter, furniture, gold ornaments, clothes etc. After the marriage, Ashok Kumar, accused, his brother Subhash Chander, his mother Maya Devi, his father Bal Krishan (since dead), sister Chand Rani, and sister's husband Om Parkash, were torturing Veena Rani, on the ground that she had brought less dowry. She used to tell about this, to her parents, and relations when she visited them, and when they visited the house of her in-laws. 3. About one and a half years, earlier to the occurrence, a son was born to Veena Rani (now deceased). On that occasion, the members of the in-laws family of Veena Rani, demanded more dowry. A cheque in the sum of Rs. 7000/-, was given to Ashok Kumar, accused. This, however, did not satisfy him. Veena Rani (now deceased), was not taken to her bridal house, by the accused. About 2 months prior to the occurrence, Veena Rani, was sent to her in-laws house, by convening a Panchayat. The accused were requested and Veena Rani was made to understand that she should have courage and try to adjust herself, in the house of her in-laws. Veena Rani, then sent a message through Jagan Nath, Commission Agent, that she was being extremely harassed. 4. On 06.07.90, Om Parkash, PW3, alongwith his father Criminal Appeal No. 217-SB of 1994 3 Desraj, PW4, and Amar Nath, went to Ghubaya, where Veena Rani told them that Ashok Kumar, Subhash Chander, Maya Devi, and Bal Krishan, gave her beatings. She further told them that Chand Rani, and her husband Om Parkash, used to tell her in-laws, that they would remarry Ashok Kumar, and she would not be kept. She further told them that her life was in danger. Des Raj, PW4, and Amar Nath, left Veena Rani, saying that, on the next day, they would convene a Panchayat, which had earlier persuaded her, to go to her in-laws house, and thereafter they would take her back.When the parents of Veena Rani (now deceased), were making efforts to collect the members of the Panchayat, at about 11.00 AM they received a message that she got burnt and had been taken to the hospital. They went to Civil Hospital, Jalalabad, where, Veena Rani, succumbed to her injuries. 5. Om Parkash, PW3, made statement PG, containing the aforesaid facts, to Inspector Darshan Singh, PW8, who appended an endorsement PG/1 and sent the same to the Police Station, on the basis whereof, first information report PG/2 was recorded by Assistant Sub Inspector Gurcharan Singh. Thereafter, Inspector Darshan Singh, went to Civil Hospital, Jalalabad, and prepared inquest report PB of the dead-body of Veena Rani (now deceased). The dead-body of Veena Rani, was sent for post-mortem examination, through Head Constable Pargat Singh, alongwith request PC. Inspector Darshan Singh, PW8, then went to the spot, in village Ghubaya, but the accused were not present there. He inspected the spot and prepared rough site plan PK Criminal Appeal No. 217-SB of 1994 4 with correct marginal notes. He collected burnt pieces of clothes, one stove, and match-box vide memo PL. He also took into possession one scooter PCE-4641, one kelvinator fridge, one televista black and white T.V., one double bed, one sofa set and one dressing table vide memo PM. Incharge, Police Post Ghubaya, produced application PE and compromise PF, which were taken into possession vide memo PN. Post-mortem, on the dead-body of Veena Rani, was conducted. Inspector Darshan Singh, PW8, also took into possession a bundle of clothes and container containing viscera, vide memo PD. Search of the accused was made. They were not found. On 13.07.90, Sham Lal, Panch, produced all the accused and they were arrested, in this case. After the completion of investigation, the accused were challaned. 6. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, charge under Section 304-B of the Indian Penal Code, was framed against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 7. The prosecution, in support of its case, examined Dr. Inder Mohan Chalana (PW1), who conducted post-mortem, on the dead-body of Veena Rani, deceased, and observed as under:- The body was 100% burnt and gave smell of kerosene on inspiration. A small piece of green cloth alongwith Nala was found to be tied on the waist and another part of cloth was found around the right upper arm. The burns were varying third to fourth degree. The singing of hair was present alongwith that of eye brows. Few singed hair were present on the left fronts parietal region. The body was in Criminal Appeal No. 217-SB of 1994 5 pugilistic posture. There was peeling of skin flap, partially attached on the sole of the feet and the hands. The doctor also found the following injury:- A lacerated wound 2 cm x 5 cm on the right parietal bone, almost parallel to mid scalp line and was bone deep. On dissection underneath bone was intact. The subcutaneous tissue was found to be congested. The line of redness was present, more marked on the abdomen and thighs. In the opinion of the doctor, the death, in this case, was due to shock as a result of burns, which were sufficient to cause to death, in the ordinary course of nature. The injuries were ante-mortem, in nature. According to the doctor, the probable time that lapsed between injury and death was within few hours, and between death and post-mortem, was six hours and 40 minutes. 8. Harnek Singh, Head Constable (PW2), proved application PE, given by Desraj, son of Behari Lal, resident of Jallalabad, and marked to him by Sub Inspector Surinder Singh. It was stated by him that both the parties were called to Police Post Ghubaya. A compromise was effected, which is PF. 9. Om Parkash (PW3), is the complainant, who made a statement, in terms of the prosecution version, narrated above, while noticing the facts of the case. The statement of Om Parkash, PW3, was duly corroborated by Desraj (PW4), and Jagan Nath (PW5). 10. Jagdish Kumar (PW6), deposed that he conveyed a message to Desraj, regarding the death of Veena Rani. He further stated that he got her admitted in the hospital. 11. R.P. Handa (PW7), was the Accountant, in State Bank of Criminal Appeal No. 217-SB of 1994 6 India, Muktsar, who deposed that he was working, as such, in State Bank of India, Jallalabad, in 1989. It was further stated by him, that M/s Behari Lal Des Raj of Jallalabad, had an account No. 5/925 in the Bank. He further stated that a cheque was received in the sum of Rs. 7000/-, copy whereof, is PH and it was presented by one Ashok Kumar, on 04.08.89. He further stated that the payment was made to him, from the account aforesaid. He also proved PJ, copy of the ledger. 12. Inspector Darshan Singh (PW8), is the Investigating Officer. He conducted the investigation and proved various documents prepared by him. 13. The Public Prosecutor for the State, tendered into evidence affidavit PD of Pargat Singh, and report PQ of the Chemical Examiner. Thereafter, he closed the prosecution evidence. 14. The statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. Ashok Kumar, accused, in his statement under Section 313 of the Code of Criminal Procedure, denied all the allegations. It was further stated by him, that the complainant party used to purchase paddy crop, from him, and a dispute arose regarding the payment of money, with them. It was, on account of this reason, that he was falsely implicated, in the instant case. 15. In defence, the accused examined Gulshan Kumar, Meter Reader, Punjab State Electricity Board, Abohar (DW1), Devinder Criminal Appeal No. 217-SB of 1994 7 Parkash, Teacher of Vikas Adarsh High School, Abohar (DW2), Jaswant Singh, Postal Assistant, Sub Post Office, Abohar (DW3), and Komal Parkash, Special Assistant, UCO Bank,Abohar (DW4). Thereafter, the accused closed the defence evidence. 16. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced Ashok Kumar, accused (now appellant), and acquitted all other accused, as stated above. 17. Feeling aggrieved, the instant appeal, was filed by Ashok Kumar, appellant. 18 I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 19. For constituting the offence, punishable under Section 304- B of the Indian Penal Code, the prosecution was required to prove that Veena Rani, died within 7 years of her marriage, otherwise, than under normal circumstances, and that soon before her death, she was treated with cruelty, in connection with the demand of dowry. Once these ingredients are proved, then presumption under Section 113-B of the Evidence Act, 1872, could be drawn, that the accused committed the offence, punishable under Section 304-B of the Indian Penal Code. Om Parkash, PW3, the complainant, in his statement, stated that Veena Rani, was married to Ashok Kumar, on 14.02.88, and she died on 07.07.90. It is also proved from the evidence, on the record, that Veena Rani, died, within 7 years of her marriage, otherwise than under normal Criminal Appeal No. 217-SB of 1994 8 circumstances i.e. by burn injuries, in the house of her in-laws. The two ingredients required for constituting the offence, punishable under Section 304-B of the Indian Penal Code,thus, stood proved, from the evidence, on record. Now let us see, as to whether, the third ingredient required for constituting the offence, punishable under Section 304-B of the Indian Penal Code, that Veena Rani, was subjected to cruelty, in connection with the demand of dowry, soon before her death, was proved or not. 20. The Counsel for the appellant, submitted that the alleged amount of Rs. 20,000/- demanded by the accused, from the parents of Veena Rani (now deceased) for the running of a new shop, by his (Ashok Kumar's) father did not fall within the purview of dowry and, as such, no offence punishable under Section 304-B of the Indian Penal Code, was constituted. Om Parkash, PW3, the complainant, stated that at the time of marriage, dowry according to the capacity was given, but the accused used to torture Veena Rani, for bringing less dowry. He further stated that he was also forcing her to bring more dowry. He further stated that on 03.01.89, a male child was born to Veena Rani. It was further stated by him that, on that occasion, Ashok Kumar, demanded a sum of Rs. 20,000/-, from them, on the ground, that his father was asking for running a new shop, and for that purpose, that amount was needed. He further stated that he also told him that, in case, the amount was paid, they would bring Veena Rani (now deceased), to their house, otherwise they would not bring her. It was further stated by Criminal Appeal No. 217-SB of 1994 9 him that a cheque of Rs. 7000/-, was handed over to him (Ashok Kumar) and they showed inability to pay more amount. The cheque was issued on 04.08.89, in the name of Ashok Kumar, drawn on State Bank of India. This cheque was encashed by Ashok Kumar, as is evident from the statement of R.P. Handa, Accountant, State Bank of India, Muktsar, who appeared as PW7. The amount of this cheque was paid to Ashok Kumar, from the account of M/s Behari Lal Des Raj, of which, the father of the deceased was the owner. It is to be determined, as to whether, such a demand fell within the definition of dowry or not. Section 2 of the Dowry Prohibition Act, 1961, reads as under:- “2. Definition of “dowry”- In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly:- (a) by one party to a marriage to the other party to the marriage; or (b) by the parents of either party to a marriage or by any other person, to either party to the marriage to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the Muslim Personal Laws (Shariat) applies.” 21. The definition of dowry, extracted above, clearly speaks of any property or valuable security. A sum of Rs. 20,000/-, for starting a new shop, by the father of the accused, was demanded, by the accused, from the parents of Veena Rani, deceased, not as a loan, but in connection with the relationship of marriage. The demand of Rs. Criminal Appeal No. 217-SB of 1994 10 20,000/-, for the aforesaid purpose and payment of Rs. 7000/- out of the same, by the parents of Veena Rani (now deceased), through cheque to Ashok Kumar, accused, could be said to be the property/valuable security, and, thus, fell within the purview of dowry. In Hem Chand Vs. State of Haryana 1994 (3) RCR 625 (S.C.), Hem Chand, appellant, married deceased Saroj Bala, on 24.5.1982. He demanded a sum of Rs. 25,000/- for purchasing a plot, from his in- laws. He again repeated that demand on 20.5.1987. Saroj Bala deceased brought a sum of Rs. 15,000/- and paid the same to Hem Chand with a promise that the balance amount would be remitted by her father soon. On 16.6.1987 at about 11.15 A.M, the deceased died of strangulation i.e. to say that she died otherwise than under normal circumstances, within seven years of her marriage. The accused was convicted and sentenced for the offence, punishable under Section 304- B I.P.C., holding that the demand fell within the definition of dowry. The appeal filed by Hem Chand, in the High Court was dismissed. Special Leave Petition filed by him in the Apex Court was also dismissed. However, the sentence of life imprisonment, awarded to him, was reduced to rigorous imprisonment for 10 years. In Koshalya Vs. State of Punjab 1994 RCR (P&H) 48, (Division Bench) the demand was made by the husband, from her in-laws, through his wife, in the sum of Rs.50,000/- for opening a shop. Another demand of Rs. 50,000/-, was made by him, for purchasing the articles, to be exhibited, for sale, in the said shop. When the parents of the bride, failed to fulfill Criminal Appeal No. 217-SB of 1994 11 such a demand, she was subjected to cruelty, as a result whereof, she died, on account of burn injuries. The trial Court, convicted the accused holding that such a demand fell within the ambit of dowry. The appeal filed by them, was also dismissed by this Court. If the demand of cash amount, for the purchase of a plot, for buying a shop, and for purchasing articles, for exhibiting in the same, as held in the aforesaid authorities, could fall within the definition of dowry, then certainly, the demand of Rs. 20,000/-, raised, in the present case, and payment of Rs. 7000/-, through cheque to the accused, out of the same, for starting a new shop by his (accused) father, could certainly be said to be falling within the ambit of dowry. No doubt, in Ramesh Kumar Vs. State of Haryana 1999 (3) RCR (Criminal) 437, relied upon by the Counsel for the appellant, it was held that the amount of Rs. 6,000/-, demanded by the appellant, to get a job, from his in-laws, would not be covered, under the definition of dowry. In view of the principle of law, and the observations made in Hem Chand's case (supra) by a three Judge Bench of the Apex Court, the demand of an amount for the purchase of a plot, by the husband, from his in-laws, through his wife, and in Koshalay's case (supra) the demand of an amount for the purchase of a shop and the articles to be exhibited therein, fell within the definition of dowry. As such, no help can be drawn, by the Counsel for the appellant, from the facts of Ramesh Kumar's case (supra). The trial Court was, thus, right in holding that such a demand fell within the definition of dowry. The submission of the Counsel for the appellant, Criminal Appeal No. 217-SB of 1994 12 being without merit, must fail, and the same stands rejected. 22. It was next submitted by the Counsel for the appellant that, even if, such a demand was deemed to be falling within the definition of dowry, no evidence was led by the prosecution, that the deceased was subjected to cruelty, in connection with the demand of dowry, soon before her death, and, as such, one of the ingredients, for constituting the offence, punishable under Section 304-B, was not fulfilled, and, thus, the appellant did not commit any offence. He further submitted that even there was a compromise, between the parties, in pursuance of the application, moved by Desraj, father of Veena Rani, deceased. He further submitted that this compromise was arrived at on 04.05.90, whereby Ashok Kumar, agreed to take back Veena Rani, to his house. He further submitted that, thus, the question of treating Veena Rani with cruelty, thereafter, until her death by the accused, did not at all arise. He further submitted that any alleged demand of the amount of Rs. 20,000/-, made earlier to 04.05.90, when the death of Veena Rani, took place, on 07.07.90, could not be said to be falling within the purview of demand, made soon before her death. He further submitted that Om Parkash, complainant, PW3, made an improvement over his previous statement, contained in PG, on the basis whereof, first information report, was registered, to the effect that her sister was telling her even after 04.05.90, that she was being tortured in connection with the demand of dowry. It may be stated here, that Om Parkash, PW3, was examined on 17.09.92, i.e. after two years of the Criminal Appeal No. 217-SB of 1994 13 occurrence. It was, therefore, not at all possible for him, to remember each and every minute detail, of the case. It is proved from the evidence on record that initial demand of Rs. 20,000/- after the birth of a male child to Veena Rani, was made by the accused for starting a new shop by his father, from the parents of the deceased. Out of this amount, only a cheque of Rs. 7,000/- was given by the parents of the deceased, to the accused, which he got encashed. However, the remaining amount had not been paid. It was, under these circumstances, that the accused had been subjecting Veena Rani, to cruelty, in connection with the demand of the remaining amount, for the aforesaid purpose, even after 04.05.90, when the compromise was arrived at, and when she was taken to her in-laws house. In Kans Raj Vs. State of Punjab and others, 2002, Crimes 213 (S.C.) it was held that cruelty soon before death, is a relative term, which is required to be considered, under specific circumstances of each case, and no straight-jacket formula, can be laid down, by fixing any time limit. This expression is pregnant with the idea of proximity test. The term soon before is not synonymous with the term immediately before, and is opposite of the expression soon after, as used and understood in Section 114 of the Indian Evidence Act. It means that soon before does not mean that immediately before the death of the deceased. This term depicts the continuity. In the instant case, Veena Rani, was continuously tortured, in connection with the demand of dowry, even after 04.05.90. This demand continued upto the death of the deceased. Otherwise, there was Criminal Appeal No. 217-SB of 1994 14 no reason for Veena Rani, deceased, who had been married to Ashok Kumar, only about two and a half years, before the occurrence, and had given birth to a male child on 03.01.89, to end her life, by setting her ablaze. She had great love and affection for her minor child, who was about one and a half years, at the time of her death. After the delivery of male child, she had achieved complete womanhood. She was very young, at the time of occurrence. She had not seen the life, in its full circle. She must be thinking that after the birth of a male child to her , she would be treated decently, by her in-laws. Birth of a male child, is considered to be a boon, in the family, in this part of the Country. She must have thought to enjoy her life, but since she was subjected to cruelty, in connection with the demand of dowry, soon before her death, she ended her life. There is no evidence, on record, that she had depression. Even otherwise, she could not have depression at all, after the birth of a male child to her on 03.01.89. If all these circumstances are taken together, then only one and one inescapable conclusion, that can be drawn, is that she was subjected to cruelty, in connection with the demand of dowry, soon before her death, as a result whereof, she ended her life. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 23. The Counsel for the appellant, last of all, submitted that the sentence awarded to the appellant was on the higher side. He further submitted that the minimum sentence provided for the offence, is 7 Criminal Appeal No. 217-SB of 1994 15 years, but the appellant was awarded 10 years of sentence. He further submitted that the sentence be reduced to the minimum, provided for the offence. In the facts and circumstances of the case, in my considered opinion, the ends of justice will be met, in case, the sentence awarded to the accused is reduced to 7 years, which is the minimum provided for the offence, from 10 years, awarded by the trial Court. The submission of the Counsel for the appellant, to this extent, is accepted. 24. For the reasons recorded above, the appeal is partly accepted. The judgement of conviction, for the offence, punishable under Section 304-B of the Indian Penal Code, is maintained. The sentence of 10 years awarded to the appellant, for the offence, punishable under Section 304-B of the Indian Penal Code, is, however, reduced to rigorous imprisonment for 7 years. 25.