Crl.Appeal No. 672-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.672-SB of 2002 Date of decision:24.9.2010 Chain Ram and others ... Appellants versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.M.S.Dhami, Advocate, for the appellants. Mr.Arshvinder Singh, DAG, Punjab. ... JORA SINGH, J. Chain Ram, Bhajno and Sukhwinder Lal, residents of Village Talwandi Sibu, District Nawanshahr, preferred this appeal to impugn the judgment of conviction and order of sentence dated 1.4.2002 rendered by Additional Sessions Judge, Nawanshahr, in Sessions Case No. RBT 12 of 2002, arising out of FIR 27 dated 26.7.1999 under Sections 304-B/34 IPC, Police Station, Rahon. By the said judgment, they were convicted under Section 304-B IPC and sentenced to undergo RI for ten years each. Prosecution story, in brief, is that Lachhman Ram son of Arjan Ram, resident of village Nilowal, is the complainant. He was doing agriculture work. He had six daughters and two sons. Five daughters were married, whereas one was unmarried. 5th daughter, namely, Kamaljit Kaur @ Ranu was married with Sukhwinder Lal son of Chain Ram, r/o Talwandi Sibu, about five months earlier to the occurrence. At the time of marriage, sufficient dowry was given as per status of the complainant. Two months Crl.Appeal No. 672-SB of 2002 2 after marriage, Sukhwinder Lal, Chain Ram and Bhajno started harassing Kamaljit Kaur for want of dowry. They were forcing Kamaljit Kaur to bring gold ornaments, i.e., one kara and ear rings for the mother-in-law. Complainant failed to provide above said gold ornaments, then Kamaljit Kaur was given beatings and was turned out of the matrimonial home. She came back to her parental house and disclosed about the incident to her father Lachhman Ram and brother Buta Ram. At that time, her uncle Santokh Ram was also present in the house of complainant. Kamaljit Kaur was made to understand and after 3-4 days, complainant and his brother Santokh Ram had left her at her in-laws house. Rs.5,000/- was paid to Chain Ram, appellant. Accused were requested not to harass Kamaljit Kaur because complainant was a poor man and was not in a position to give more dowry. Despite payment, in-laws of Kamaljit Kaur again started harassing her. Kamaljit Kaur was pressurised to bring more cash from her father. 15- 20 days back, again Kamaljit Kaur was given beatings and was turned out of the matrimonial home. Kamaljit Kaur came to her parental house but again she was made to understand and was left at her in-laws house. Today, i.e., 26.7.1999, complainant party came to know about the death of Kamaljit Kaur. Complainant along with his son Buta Ram and brother Santokh Ram were going towards police station to lodge report, but near Bus Stand, Machhiwara Rahon, police party headed by SI/SHO Surinder Mohan had met the complainant party. Statement of Lachhman Ram (Ex.PG) was recorded. He had thumb marked the same in token of its correctness. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. Special report was sent to the Ilaqa Magistrate and the same was delivered at 7.00 PM on 26.7.1999. Crl.Appeal No. 672-SB of 2002 3 Police party headed by SI Surinder Mohan along with complainant party had gone to the spot. Dead body of Kamaljit Kaur was found lying in the house of Chain Ram. Inquest report was prepared. Dead body was sent to the hospital for postmortem examination. Rough site plan with correct marginal notes was prepared. Accused were arrested on 27.7.1999. HC Raj Kumar had produced clothes worn by the deceased and the same were made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Viscera in a sealed cover was sent to the office of Chemical Examiner. After receipt of report from the office of Chemical Examiner and completion of investigation, challan was presented in Court. Accused were charged under Section 304-B IPC, to which they pleaded not guilty and claimed trial. PW1 Dr. Renu Mittal had conducted postmortem examination on the dead body of Kamaljit Kaur on 27.7.1999 and observed as under:- “The length of the body was 5'3/4”. It was body of a young female, moderately built, having long black hair on the scalp, and mouth was partially open. Eyes were closed. Rigour mortis was present in all the four limbs. P/M staining was present on the back and dependent areas of the body. It was fixed. The dead body was wearing a blue coloured embroidered shirt, coca cola salwar, red and cream colour chura. No injury mark was present on the body. Right and left lungs were congested and a portion of it was sent to the Chemical Examiner, Patiala, for chemical examination and Histo-pathology Deptt., Amritsar. Heart was healthy and sent Crl.Appeal No. 672-SB of 2002 4 to Amritsar for H/P examination. Stomach, small intestine, large intestine were congested and sent to the Chemical Examiner along with its contents. Liver, spleen, kidneys were also congested and a portion of them was also sent for chemical examination and H/P examination. Bladder was healthy and contained 100 ML of urine. Organs of external generation were normal. Uterus was enlarged and gravid, measuring 7” x 5” from cervices to fundus. On dissection, it contained gestational sac with foetus and uterus was sent to forensic medicines, Amritsar, along with the contents for estimation of gestational age.” PW2 Constable Mohinder Singh had deposited sealed parcel in the office of Chemical Examiner. PW3 HC Raj Kumar had deposited sealed parcel of viscera in the office of Chemical Examiner, Patiala. PW4 Lachhman Ram, complainant, has reiterated his statement (Ex.PG) recorded by SI Surinder Mohan on 26.7.1999 at 2.25 PM. PW5 SI Surinder Mohan is the Investigating Officer. PW6 Darshan Singh stated that his niece was married with Sukhwinder Lal. After the death of Kamaljit Kaur, he had identified the dead body and signed the inquest report. PW7 Santokh Ram had supported the version of Lachhman Ram, complainant. Report of Chemical Examiner (Ex.PB) was tendered into evidence. After close of the prosecution evidence, statements of accused Crl.Appeal No. 672-SB of 2002 5 were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that deceased was carrying a pre-marriage pregnancy. She ended her life in order to save her honour. She was never harassed by them nor they had demanded dowry at any stage. No money was demanded or paid to them. In defence, DW1 Pargan Ram stated that Sukhwinder Lal was married with Kamaljit Kaur and their marriage was solemnised in the first week of May, 1999. Marriage was simple. No dowry was given before or after the marriage or at the time of marriage. Kamaljit Kaur was living separately with Sukhwinder Lal. Kamaljit Kaur had conceived prior to her marriage. She was pregnant at the time of marriage. Ladies and relations came to know about a week before her death. Kamaljit Kaur felt ashamed and committed suicide. DW2 Balbir Singh stated that marriage of Sukhwinder Lal was solemnised during harvesting season of wheat in 1999. Sukhwinder Lal was living separately with his wife from his parents. Dowry was given at the time of marriage. Kamaljit Kaur was living happily with her husband. In-laws of Kamaljit Kaur never demanded dowry. Death was 2-1/2-3 months after the marriage. One week before the death of Kamaljit Kaur, there was a rumour that deceased was pregnant at the time of her marriage. DW3 Mohinder Kaur has also supported the version of DW1 Pargan Ram by saying that dowry was not given. There was no demand of dowry. At the time of marriage, Kamaljit Kaur was pregnant. Kamaljit Kaur was living happily with her husband. 10-15 days before the death, Kamaljit Kaur informed her that she was pregnant at the time of her Crl.Appeal No. 672-SB of 2002 6 marriage. Kamaljit Kaur was feeling ashamed and was unable to face the world. Kamaljit Kaur informed her that she wanted to die. She (Kamaljit Kaur) was requested not to take this extreme step because her in-laws were not feeling bad. She had informed about the incident to her husband. One week before the death, she along with her husband had gone to the house of Kamaljit Kaur and told her not to feel guilty but she committed suicide after a week. No role of the in-laws in the death of Kamaljit Kaur. After hearing learned Public Prosecutor for the State, learned counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on the file. Learned counsel for the appellants argued that there was a delay in lodging the FIR. Delay was not explained. There was no demand of dowry before, after or at the time of marriage. Dowry was not given at the time of marriage. No complaint to any authority regarding demand of dowry by the complainant. In fact, marriage was in the month of May. At the time of marriage, Kamaljit Kaur was pregnant and when this fact came to the notice of her in-laws and other members, then Kamaljit Kaur felt ashamed. She failed to face the world and had committed suicide. No fault of the appellants. Learned State counsel argued that marriage was not in the month of May. Marriage was four months earlier to the occurrence and this fact is clear from the statement of complainant and his brother. At the time of marriage, sufficient dowry was given and this fact is clear from the statement of DW2 Balbir Singh. He has admitted that dowry was given at Crl.Appeal No. 672-SB of 2002 7 the time of marriage. Vehicle was arranged by the father of the deceased to shift the dowry articles to the house of the appellants. So, appellants cannot argue that dowry was not given at the time of marriage. No question was put to the doctor that pregnancy was five months old. As per report of Chemical Examiner (Ex.PB), death was due to organo phosphorus, a group of insecticide. Ex.PD is the report of Dr. Gurmanjit Rai and as per report (Ex.PD), age of foetus was more than 12 weeks and less than 16 weeks. That means, at the time of marriage, deceased was not pregnant. DWs are related to the appellants. No delay in lodging the FIR. Evidence on the file was rightly scrutinized by the trial Court. First submission of learned counsel for the appellants was that there was delay in lodging the FIR but after going through the evidence on the file, I am not in a position to agree with the submission of learned counsel for the appellants. Admittedly, Kamaljit Kaur (deceased) was married with Sukhwinder Lal son of Chain Ram. According to the complainant party, marriage was five months earlier to the occurrence, whereas allegation of the appellants was that marriage was in the month of May, 1999. Death was on the intervening night of 25/26.7.1999. When complainant party came to know about the death of Kamaljit Kaur, then they had gone to lodge report. Near Bus Stand Machhiwara Rahon, police party headed by SI Surinder Mohan had met the complainant party. Statement of complainant (Ex.PG) was recorded on 26.7.1999 at 2.25 PM. According to defence version, deceased had committed suicide and if deceased had committed suicide, then appellants should have informed the police or the complainant party. No allegation of the appellants that death was during day time. When death was on the intervening night of Crl.Appeal No. 672-SB of 2002 8 25/26.7.1999 and deceased had committed suicide, then appellants had the duty to inform the police or the complainant party. No explanation why information was not given to the police or parents of the deceased. When complainant party came to know about the death of Kamaljit Kaur from some body, then complainant along with his son Buta Ram and brother Santokh Ram were going to lodge report but near Bus Stand Machhiwara Rahon, police party had met the complainant party. Then statement of complainant (Ex.PG) was recorded. No delay in lodging the FIR. In case, we presume that there was a delay in lodging the FIR, then delay itself is not sufficient to acquit the appellants. Appellants are to explain why unnatural death at the in-laws house. Section 304-B IPC is reproduced as under:- “304-B Dowry death.- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.” Allegation of the complainant party was that two months after the marriage, appellants started harassing the deceased for want of dowry. Deceased was pressurised to bring gold ornaments. Deceased was given beatings and turned out of her matrimonial home. Deceased came to her parental house and had informed her parents. Deceased was made to understand and was left at her in-laws house by the complainant and his brother Santokh Ram. Rs.5,000/- was paid to Chain Ram but in Court, Crl.Appeal No. 672-SB of 2002 9 complainant stated that payment of Rs.5,000/- was paid to Sukhwinder Lal. There is minor discrepancy regarding payment. After payment, again appellants started harassing the deceased for want of dowry. Deceased was again given beatings and was turned out of matrimonial home 15-20 days earlier to the occurrence, but deceased was made to understand and was left at her in-laws house. On 26.7.1999, complainant party came to know about the death of Kamaljit Kaur. No doubt, during life time of Kamaljit Kaur, there was no complaint to police or panchayat regarding harassment for want of dowry. When marriage is not old, then to save the marriage, sometimes matter is not brought to the notice of police or panchayat. When situation becomes out of control, only then matter is brought to the notice of police or panchayat. Similarly in the present case, when deceased was given beatings and was turned out of the house, then to save the marriage, deceased was made to understand and was left at her in-laws house. There was payment of Rs.5,000/- to the opposite party. Few days earlier to the occurrence, deceased was given beatings and turned out of the house but again, deceased was persuaded and was left at her in-laws house. Appellants were requested not to harass the deceased because complainant party was very poor. According to defence version, there was no dowry at the time of marriage. Dowry was not demanded before or after the marriage or at the time of marriage, but this fact is not correct one. DW2 Balbir Singh admitted that dowry was given at the time of marriage. Vehicle was arranged by the complainant and dowry articles were sent to the house of the appellants. Appellants cannot wriggle out of the statement of DW2 Balbir Singh. Statements of complainant, his brother Santokh Ram and DW2 Balbir Singh clearly show that dowry was given at the time of Crl.Appeal No. 672-SB of 2002 10 marriage and after marriage, deceased was harassed for want of dowry. According to the complainant party, marriage was five months earlier to the occurrence and this fact is clear from the statements of Lachhman Ram, complainant, and his brother Santokh Ram. In cross- examination, Lachhman Ram stated that marriage was in the first week of May but this single line is not sufficient to opine that marriage was in the month of May. In Ex.PG, allegation of the complainant was that marriage was five months earlier to the occurrence. In court, complainant also stated that marriage was five months earlier to the occurrence. Similar is the statement of Santokh Ram. DW2 Balbir Singh stated that marriage was during harvesting season of wheat in 1999. Experience shows that harvesting season of wheat is in the months of March-April and not in the month of May. From the perusal of evidence on the file, one thing is clear that death of deceased was within seven years from the date of marriage. Second question is whether death was natural or unnatural. According to defence version, deceased was pregnant at the time of marriage and committed suicide, whereas allegation of the complainant party was that poisonous substance was administered to the deceased. Ex.PA is the copy of postmortem report. Ex.PB is the copy of Chemical Examiner report and the report is to the effect that organo phosphorus, a group of insecticide, was detected. So, death was unnatural at the in-laws house. Next allegation of the complainant party was that deceased was harassed for want of dowry. Poisonous substance was administered to the deceased by the appellants, whereas allegation of the appellants was that deceased was pregnant at the time of marriage. When this fact came to the Crl.Appeal No. 672-SB of 2002 11 notice of the appellants and their relations, then deceased felt ashamed and had committed suicide. Now point is whether deceased had committed suicide or was administered poisonous substance. PW1 Dr. Renu Mittal had conducted postmortem examination on the dead body of deceased. Cause of death was kept pending subject to report of Chemical Examiner. Ex.PB is the copy of report of laboratory. Ex.PD is the expert opinion of Dr.Gurmanjit Rai. According to postmortem report, deceased was pregnant and as per Ex.PD, pregnancy was more than 12 weeks but less than 16 weeks. Meaning thereby, pregnancy was not more than 4 months old. No suggestiuon was given to Dr. Renu Mittal that pregnancy was 5 months old. Ex.PD was exhibited in the statement of Dr. Renu Mittal but no application was given requesting the Court to summon Dr. Gurmanjit Rai for cross-examination to explain how pregnancy was found to be more than 12 weeks and less than 16 weeks. Suggestion was given to the complainant and his brother that Kamaljit Kaur was pregnant at the time of her marriage. Relations of Kamaljit Kaur were cordial with her in-laws. One suggestion was given to Lachhman Ram that Sukhwinder Lal and his wife were residing separately from Chain Ram and his wife. According to the complainant party, marriage was in the month of February. DW2 Balbir Singh admitted that marriage was at the time of harvesting season of wheat in 1999. As discussed earlier, harvesting season of wheat is in the months of March-April. So, marriage cannot be in the month of May. In 2010(3) Criminal Court Cases 190 (SC), Durga Prasad and another vs. State of M.P., case was under Section 304-B IPC- Dowry death- Hon'ble Supreme Court held-Bald statements of cruelty and harassment-No other evidence to prove that victim committed suicide on account of cruelty Crl.Appeal No. 672-SB of 2002 12 and harassment- Conviction set aside. No dispute about the law laid down in the above cited authority, but in the present case, evidence on the file clearly shows that marriage of deceased was five months earlier to the occurrence. Ration card, voter list or invitation card could easily be produced by the appellants to show that marriage was in the month of May. DWs produced by the appellants are very much interested for the acquittal of appellants. DW1 Pargan Ram is the sandhu of Chain Ram and stated that marriage of deceased was in the first week of May. Then stated that he cannot tell the date of marriage. Statement of Pargan Ram being related to the appellants is without any evidentiary value. If case was false, then he should have appeared before the IO at the time of occurrence. Complaints should be sent to different authorities that marriage was in the month of May. At the time of marriage, deceased was pregnant. No report to the police or panchayat. If deceased was pregnant at the time of marriage, then panchayat could easily be convened by the appellants. Appellants could easily complain to the complainant and his brother. Statement of DW2 Balbir Singh is also without any evidentiary value because he was cultivating the land of the appellants. Case of the appellants was that no dowry was given at the time of marriage but Balbir Singh admitted that dowry was given at the time of marriage. Vehicle was arranged by Lachhman Ram to transport the dowry articles to the house of the appellants. Balbir Singh was not in a position to tell about the date and month of the marriage. But as per Balbir Singh, marriage was during the harvesting season of wheat in 1999. Harvesting season of wheat cannot be in the month of May. Lastly, admitted that there was only one kitchen in the Crl.Appeal No. 672-SB of 2002 13 house of the appellants. So, story regarding separate residence of Sukhwinder Lal from his parents is not correct one. No ration card or voter list on the file to show that deceased with her husband was residing separately from Chain Ram and Bhajno, appellants. DW3 Mohinder Kaur is the sister of Bhajno, appellant. Mohinder Kaur admitted that no report to any authority that deceased was carrying pre-marriage pregnancy. If deceased was pregnant at the time of marriage, then appellants were expected to convene a panchayat and complain to the complainant party. Complaints could easily be sent to the police or higher authorities. Mohinder Kaur, Balbir Singh or Pargan Ram should have appeared before the IO. But they did not appear before the IO. In case, their statements were not recorded by the IO, then they could easily send complaints to different authorities but without any reason, no complaint to any authority. When deceased was residing happily with Sukhwinder Lal and Mohinder Kaur, sister of Bhajno, was requesting the deceased not to worry if she was pregnant at the time of marriage, then there was no question to commit suicide. Statement of Mohinder Kaur is also without any evidentiary value. Evidence shows that deceased was married five months earlier to the occurrence. Deceased was harassed for want of dowry soon before the death. At one time, Rs.5,000/- was paid to the appellants, although no receipt regarding payment, but when marriage was only five months' old, then complainant party cannot compel to issue receipt. When payment is made to the in-laws or dowry is given, then no one issues a receipt. In case, there is a demand of receipt to be issued by the in-laws, then there is possibility of some misunderstanding. When there is Crl.Appeal No. 672-SB of 2002 14 misunderstanding amongst the parties, then there is possibility of dissolution of marriage. To settle the deceased at her in-laws house, payment was made but despite payment, appellants continued to harass the deceased for want of dowry. If deceased had committed suicide, then question is why report was not lodged with the police or intimation was not given to the complainant party. No suggestion was given to PWs that after unnatural death of Kamaljit Kaur, intimation was sent to the complainant party. When unnatural death within seven years from the date of marriage, then presumption under Section 113-B of the Indian Evidence Act is that death was dowry death. Appellants when examined under Section 313 Cr.P.C., then did not state a word that marriage was not five months' old. In fact, marriage was in the month of May. If marriage was in the month of May, then at the time of recording the statements of the appellants under Section 313 Cr.P.C., they could easily state that marriage was in the month of May and not five months earlier to the occurrence, i.e.,