IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 190-DB of 2004 DATE OF DECISION : 14.05.2010 Hari Om and others .... APPELLANTS Versus The State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. R.S. Cheema, Senior Advocate, with Mr. S.S. Narula and Ms. Tarannum Cheema, Advocates, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. Mr. Hari Om Sharma, Advocate, for the complainant. * * * SATISH KUMAR MITTAL , J. 1. Five accused, namely Hari Om, Subhash, Dharam Pal, Ram Chander and Chander Kala (hereinafter referred to as `A-1 to `A-5' respectively), who are the husband, younger brother-in-law (Devar), uncle of husband, father-in-law and mother-in-law of the deceased, were tried by the court of Additional Sessions Judge, Jind, for the offences under Sections 304-B and 498-A IPC, have filed the instant appeal against their conviction and sentence, vide judgment of conviction dated 31.1.2004 and the order of sentence dated 4.2.2004, passed by the trial court. Crl. A. No. 190-DB of 2004 -2- 2. A-1 was sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- under Section 304-B IPC; to undergo two years rigorous imprisonment and to pay a fine of Rs. 1,000/- under Section 498-A IPC. A-2 and A-3 were sentenced to undergo imprisonment for ten years and to pay a fine of Rs. 5,000/- each under Section 304-B IPC; to undergo two years rigorous imprisonment and to pay a fine of Rs. 1,000/- each under Section 498-A IPC. A-4 and A-5 were sentenced to undergo imprisonment for seven years and to pay a fine of Rs. 5,000/- each under Section 304-B IPC; to undergo two years rigorous imprisonment and to pay a fine of Rs.1,000/- each under Section 498-A IPC. In default of payment of fine, each of the accused was sentenced to further undergo rigorous imprisonment for a period of two years. All the sentences were ordered to run concurrently. 3. As per the prosecution version, which is based upon the statement (Ex.PF) of Pawan Kumar (PW.3), brother of deceased Poonam, recorded by ASI Hira Lal (PW.17) on 7.8.2002 at 12.25 PM, deceased Poonam, who was a Post Graduate in Hindi, was married to A-1 on 4.7.2002, who was serving as Sub Inspector in Delhi Police. In that marriage, an amount of Rs. 6.50 lacs was spent by the parents of the deceased. An amount of Rs. 3.50 lacs was paid in cash and the remaining amount was spent on gifts and other expenses. But after five/six days of the marriage, a telephone call was made by A-1 in the house of the complainant that they did not give any furniture in the marriage and they should send Crl. A. No. 190-DB of 2004 -3- double bed, Diwan, almirah, dressing table etc. Thereafter, on 21.7.2002, A- 1 came from Kaithal to the parents house of the deceased at Jind with a tempo and took away all the aforesaid articles to Kaithal. At that time, A-1 also said that parents of Poonam had given cheaper saries to his mother and sisters in the marriage, therefore, they should also sent Rs. 20,000/- on that account, so that the better saries can be purchased for them. On the said demand, the complainant, his mother Shanti Devi and sister Sushma tried their best to make A-1 understand that on the marriage, they had spent a huge amount and at present, it was not possible for them to pay the said amount and it will be paid later on to him. Thereupon, A-1 threatened that if they did not pay Rs. 20,000/-, then he will not keep their daughter. After two days, the complainant again received telephone call from A-1 with regard to payment of Rs. 20,000/- at the earliest. His sister Poonam also made telephone call to them that her husband (A-1), mother-in-law (A-5), father-in-law (A-4) and brother-in-law (A-2) were harassing her on account of demand of money. On 30.7.2002, the complainant went to the matrimonial home of his sister Poonam and tried his best to make understand the accused that he would send the money after some days. Then all the aforesaid persons said that the complainant should take his sister along with him and as and when he will send the money, his sister can come to the matrimonial home. It is further the case of the prosecution that on the same day, the complainant brought his sister Poonam at Jind. On arrival at their house in Jind, Poonam told him and his mother that A-1 wants to Crl. A. No. 190-DB of 2004 -4- purchase a house at Delhi for residential purpose, and for that they have to arrange money. On 5.8.2002, A-1 made a telephone call from Delhi asking the complainant as to whether they had arranged for money or not. On that, the complainant replied that they are not in a position to make arrangement for the money. The complainant told this fact to his father, mother and sister. On aforesaid account, his sister always remained under tension. She was used to say that her husband and his parents are greedy persons. If the said amount is paid, they would demand more. One day before the occurrence i.e. on 6.8.2002, A-1 made a telephone call from Delhi to his wife Poonam. After hearing the call, she became tense. On the next morning i.e. on 7.8.2002 at about 6.30/7.00 AM, she was found vomiting in her room. She was immediately taken to Civil Hospital, Jind in unconscious condition, where Doctor declared her dead at 7.45 AM. Thereafter, the complainant made statement (Ex.PF) narrating the aforesaid facts to ASI Hira Lal (PW.17) and stated that due to harassment and maltreatment at the hands of the accused on account of demand of dowry, his sister has committed suicide by consuming some poisonous substance. A hand-written letter (Ex.PA) of 3 pages, which was found on the bed of deceased Poonam, was also handed over to the police. On the basis of the said statement, the formal FIR (Ex.PN) under Sections 304-B/498-A/34 IPC was registered at 12.50 PM at Police Station City Jind. The special report was delivered to the Ilaqa Magistrate at 3.00 PM. 4. On 7.8.2002 at 1 PM, Dr. V.K. Satija (PW.10) conducted post Crl. A. No. 190-DB of 2004 -5- mortem examination on the body of the deceased Poonam. No injury was found on the body of the deceased. During post mortem examination, stomach and its contents were sent for chemical examination. A piece of small intestine, a piece of larger intestine, a piece of liver, spleen and kidney with their contents were also sent for chemical examination. On receipt of the report of the Chemical Examiner (Ex.PT), according to which the contents sent for chemical examiner were found positive for aluminium phosphide, the doctor gave the opinion that the deceased died due to asphyxia as a result of aluminium phosphide. 5. During investigation, the accused were arrested, dowry articles were recovered and signatures of Poonam on the writing (Ex.PA) were got compared from the hand-writing expert. Though in the FIR, name of A-3 did not figure, but during investigation, it was found that part of the dowry amount i.e. Rs. 1.31 lacs were paid to A-3 on 4.7.2002, therefore, he was also involved in this case. Therefore, challan was filed against five accused. 6. After presentation of the challan, the appellants were charge sheeted for the offences under Section 304-B and 498-A IPC, to which they did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined seventeen witnesses. 8. PW.3 Pawan Kumar (complainant) and PW.14 R.D. Garg, who are the brother and father of the deceased, were examined to prove the alleged maltreatment and harassment of the deceased by the appellants on Crl. A. No. 190-DB of 2004 -6- account of demand of dowry, soon before her death. PW.10 Dr. V.K. Satija was examined to prove that the deceased had died due to poison, which was an un-natural death. PW.16 Inspector Deep Chand, who partly investigated the case, was examined to prove that the accused were arrested and recovery of the dowry articles was effected from them. PW.17 ASI Hira Lal is the Investigating Officer of the case, recorded the statement of the complainant, on the basis of which the formal FIR was registered, got conducted the post mortem of the deceased, prepared the rough site plan and the inquest report. All these witnesses supported the case of the prosecution. The other witnesses are formal in nature. 9. In his statement under Section 313 Cr.P.C., A-1 denied all the allegations appearing against him in the prosecution evidence. To the question as to whether he wanted to say anything, he did not give detailed reply and stated that he will depose as a DW on oath regarding his defence version to elaborate the actual facts of this case. 10. A-2 to A-5, in their statements under Section 313 Cr.P.C., also denied the allegations appearing against them in the prosecution evidence. They stated that they have been falsely implicated in this case. They neither made any demand of dowry from the deceased or her parents nor maltreated the deceased in that connection. It was further stated that no amount in cash was paid to them for purchasing the car. 11. In defence, the accused examined as many as 19 witnesses, including A-1 himself, to prove their innocence and to rebut the charges Crl. A. No. 190-DB of 2004 -7- levelled against them. 12. DW.1 Laxman Dass ASI was examined to prove that A-1 was posted as Sub Inspector in Delhi Police since 1997 and he was not allotted any Government accommodation and he was at serial No. 78 in the waiting list of allotment of Government accommodation. However, as per the record, he (A-1) had not mentioned his address where he was residing, when he had applied for the Government accommodation. 13. DW.2 Lallan Shah Head Constable of Delhi Police had stated that A-1 was on earned leave from 3.8.2002 to 19.8.2002. He was supposed to join his duties on 20.8.2002, but in his cross-examination, this witness has stated that A-1 had not joined his duty till 11.8.2003 i.e. the day of the deposition of this witness. 14. DW.3 Rajiv Singh, a telephone official from the office of M.T.N.L., was examined to prove that the telephone number 4652233 was installed in the name of Shri Bijender Singh in House No. 17/932, Lodhi Colony, New Delhi, since 10.7.2002, but on 31.10.2002, this telephone was disconnected for non-payment of bills. 15. DW.4 Ram Avtar Yadav, APP, Patiala House Courts, New Delhi, was examined to prove that on 16.7.2002, A-1 along with his wife was invited for a dinner by Shri Dushyant Siwach APP and this witness was also one of the invitees and was present there. 16. DW.5 Dushyant Siwach, APP, Patiala House Courts, New Delhi was examined to prove that A-1 has passed his L.L.M and is a good friend of this witness. According to him, A-1 is a very nice man and is not a Crl. A. No. 190-DB of 2004 -8- greedy person. He stated that he attended the marriage of A-1 on 4.7.2002. In the marriage, neither any dowry was demanded nor any article was handed over to the accused. There was neither any demand of cash or car from the side of the bride-groom nor any cash or car was given in the marriage. 17. DW.6 Om Parkash stated that he had purchased the Maruti Car from Panipat from his own money. No amount was paid to him by complainant Pawan Kumar to purchase the said car. He stated that he had purchased the said car for his personal use. 18. DW.7 R.K. Singh, Nodal Officer, Airtel Office, New Delhi produced the record of mobile telephone held by the accused. 19. DW.8 Shri Kamlesh Kumar Bhuchar, Advocate, of Delhi High Court, stated that A-1 is a very good man. He (DW.8) attended his marriage, which was a simple marriage. Neither any dowry article was demand nor any dowry article or the car, as alleged, was given in the marriage. 20. DW.9 Dharamvir, a businessman of Narela, Delhi, stated that on 20.7.2002, A-1 telephoned him on his telephone from Manali and on 28.7.2002, A-1 along with his wife came to the residence of this witness for dinner. The relationship between A-1 and his wife Poonam were cordial. They were leading a very happy married life. 21. DW.10 Shri Atul Bhuchar, Advocate, of Delhi High Court, stated that he was a close friend of A-1, who is a very good man. He attended the marriage of A-1, which was a simple marriage. There was no Crl. A. No. 190-DB of 2004 -9- demand of dowry. No car was given in the said marriage. He further stated that after the marriage, A-1 along with his wife visited his house for three/four times. The relationship between them were cordial and they were happy. 22. DW.11 Shri Amit Singla, Advocate, Panchkula, stated that A-1 was his class-fellow in Law. He is a very good person. He further stated that he also attended the marriage of A-1, which was a simple marriage without any pump and show. He further stated that on 18.7.2002, A-1 ranged up him informing him that he was going to Manali and he will be reaching Panchkula on 19.7.2002. On 24.7.2002, after returning from Manali, A-1 spent some time with this witness. According to this witness, there was no problem between A-1 and his wife Poonam and they were leading a very married life. 23. DW.12 Ajit Pal Singh, a businessman of Panchkula, who is a friend of Shri Amit Singla, Advocate, (DW.11), stated that he attended the marriage of A-1 along with Shri Amit Singla, which was a simple marriage. No dowry was demanded and no car was given. On 24.7.2002, he, A-1, his wife Poonam and Amit Singla took dinner together. The relationship between the husband and wife were cordial. 24. DW.13 Manish Bansal is a businessman of Delhi. He stated that on 21.7.2002 and 23.7.2002, he had telephonic conversation with A-1, while he was in Manali. He further stated that on 27.7.2002, they had taken dinner at his residence. The relationship between A-1 and his wife were Crl. A. No. 190-DB of 2004 -10- cordial and they were leading a very happy married life. 25. DW.14 M.S. Mor, an official from MTNL, was examined to prove that mobile telephone of A-1 was not in working order between 18.7.2002 to 7.8.2002. 26. DW.15 Ishdeep Sharma, Receptionist, Piccadly Hotel, Manali, stated that A-1 stayed in their hotel from 20.7.2002 to 23.7.2002. He has proved Ex.D-22 to Ex.D-46, the various bills, notification slips, confirmation slip and the certificate of confirmation slips. 27. DW.16 Sanjeev Talwar, Clerk, Hari Sons Travels, Manali, was examined to prove that A-1 along with his wife travelled in the bus of their agency on 23.7.2002 from Manali to Chandigarh. 28. DW.17 Vinod Kumar Nayyar, Agent, Hari Sons Travels, Chandigarh was examined to prove that on 19.7.2002, two seats from Chandigarh to Manali were booked in the name of A-1 and his wife in their office. 29. A-1 himself deposed on oath as DW.18. While appearing as his own witness, he stated that after the marriage with Poonam, she stayed with him from 4.7.2002 to 30.7.2002. During this time, they had visited various places. He had given detail of his visit to various places. He further stated that from 19.7.2002 to 23.7.2002, they visited Manali and stayed there in Picadly Hotel. On 23.7.2002, they came to Chandigarh and after staying there for two or three days, they returned to Delhi. On 30.7.2002, Pawan Kumar complainant took Poonam to Jind. A-1 further stated that deceased Crl. A. No. 190-DB of 2004 -11- Poonam remained happy with him throughout the period she stayed with him and the allegations regarding demand of dowry and harassment were stated to be totally false and frivolous. In the marriage, no car was given to him by the parents of Poonam. He stated that he never came to Jind on 21.7.2002. He never made any telephone call either to the complainant or to Poonam on 5.8.2002 and 6.8.2002, demanding a sum of Rs. 20,000/-. He stated that there was inherent psychological barrier between him and his wife Poonam. She belonged to upper middle class being the daughter of General Manager, Haryana Roadways and she was a pampered child of her parents. She could not adjust in their family, which is a lower middle class family. His mother was illiterate and an orthodox type of woman. Due to this, Poonam stayed in his parents house at Kaithal only for five/six days. She could not adjust herself in orthodox family, therefore, she committed suicide without there being any abatement on their side. The whole story of demand of dowry, harassment and maltreatment on that account is concocted and false. 30. DW.19 Jitender Singh stated that he attended the marriage of A-1. On 8.7.2002, A-1 along with his wife Poonam came at his residence at Jind to have a cup of tea on his invitation. He further stated that the couple was happy with the marriage. Thereafter, on 17.7.2002, the couple visited the house of this witness at Delhi. On that day, their relations were very good. 31. The trial court, after considering the evidence led by both the Crl. A. No. 190-DB of 2004 -12- parties, while relying upon the prosecution evidence, came to the conclusion that on 21.7.2002 when A-1 came to Jind to take furniture in the shape of dowry, he manipulated his presence at Rohtangpass (Manali) on the basis of the fictitious photograph Ex.D57, which can be treated as a trick photography. It was further held that Ex.D54 and Ex.D55 are the fictitious photographs got prepared by the accused in collusion with the travelling agents and A-1 might have visited Manali along with Poonam much earlier to 21.7.2002 or thereafter, but not in between 19.7.2002 to 23.7.2002. Accordingly, the trial court convicted and sentenced all the accused, as indicted above. 32. Learned counsel for the appellants argued that in the present case, all the allegations of demand of dowry, the alleged maltreatment and harassment on account of demand of dowry, the alleged demand of double bed, Diwan, almirah, dressing table etc. and an amount of Rs. 20,000/- as well as the allegation that on 5.8.2002 and 6.8.2002, A-1 made telephone calls to Pawan Kumar complainant and deceased Poonam are false and concocted. The testimonies of PW.3 Pawan Kumar and PW.14 R.D. Garg are wholly unreliable and untrustworthy. According to the learned counsel, no such allegation finds mention in three pages letter (Ex.PA) written by the deceased, which was found on the bed of the deceased on the day of the occurrence. If the allegations made in this letter are taken on its face value, then no offence under Section 304-B or Section 306 IPC can be said to have been made out against any of the accused. Learned counsel, while referring Crl. A. No. 190-DB of 2004 -13- to the testimony of PW.3 Pawan Kumar (complainant) argued that all the three or four demands alleged to have been made after the marriage, were made by A-1 and not by A-2 to A-5. According to the learned counsel, as far as A-2 to A-5 are concerned, no specific allegation has been made against them, but only general and vague allegations with regard to harassment and maltreatment on account of demand of dowry have been levelled against them. While referring to the decision of the Hon'ble Supreme Court in Kans Raj v. State of Punjab and others, AIR 2000 Supreme Court 2324, learned counsel argued that now a days, it is a general tendency to implicate all the family members for the offence of dowry death. He further argued that there may be various causes for committing suicide by a wife, but all the cases of suicides cannot be taken as dowry death, merely on the basis of some vague allegation with regard to harassment on account of demand of dowry soon before her death. According to the learned counsel, this tendency is increasing day by day, and the court, while dealing with such cases, is required to deal with great care and caution, so that no innocent person could suffer a heavy punishment without there being any fault on his part. 33. Learned counsel further argued that as per the testimony of PW.3 Pawan Kumar (complainant), after 6/7 days of the marriage, A-1 telephoned him for sending furniture etc. and when the same were not sent, on 21.7.2002, A-1 came to Jind and took the furniture. At that time, he also alleged to have demanded a sum of Rs. 20,000/- for purchase of better Crl. A. No. 190-DB of 2004 -14- saries. It is alleged that after two days, A-1 again telephoned the complainant and demanded the amount of Rs. 20,000/-. When on 30.7.2002, the complainant went to the matrimonial house of his sister Poonam, then she told that all the accused were harassing her for bringing inadequate dowry. On the same day, the complainant brought his sister Poonam to Jind. It is alleged that on 5.8.2002, A-1 again telephoned from Delhi regarding arranging of money. On 6.8.2002, he again telephoned to Poonam. On receiving the said call, she became disturbed and on the next day in the early morning, she committed suicide. According to learned counsel, all these allegations with regard to the demand of dowry and the harassment are against A-1, but all these allegations are false, frivolous and concocted, as none of these allegations was found mentioned in the letter (Ex.PA), which according to the prosecution was written by the deceased immediately before her death, and was found on her bed on the day of occurrence itself. 34. Learned counsel further argued that in this case, it has been proved that on 21.7.2002, A-1 along with his wife Poonam was present in Manali. On that day, he did not visit Jind to collect the furniture. He argued that from the evidence led in defence, it is also proved that A-1 did not make any telephone call to the complainant and the deceased on 5.8.2002 and 6.8.2002. Therefore, all these allegations levelled by the complainant with regard to the harassment and maltreatment are concocted. The same have not been proved by the prosecution beyond reasonable doubt, therefore, no presumption under Section 113-B of the Indian Evidence Act, Crl. A. No. 190-DB of 2004 -15- 1872 of committing the dowry death can be raised against the appellants. Learned counsel further argued that while leading sufficient evidence, A-1 has also rebutted the presumption regarding dowry death of Poonam. 35. On the other hand, learned counsel for the respondent-State argued that testimonies of PW.3 Pawan Kumar and PW.14 R.D.Garg are reliable and trust-worthy. Their testimonies have been further corroborated by a hand-written letter (Ex.PA) which clearly indicates the extent of harassment made by the husband to the deceased. Learned counsel further argued that from the evidence led by the prosecution, offences under Sections 304-B and 498-A IPC have been made out against all the accused. He argued that in the instant case, the accused have tried to create defence. A-1 has manipulated and fabricated the documents and hotel records, in order to show that from 19.7.2002 to 23.7.2002, he along with his wife Poonam remained present at Manali. In these facts and circumstances, according to learned counsel, all the accused have been rightly convicted and sentenced by the trial court and the same does not require any interference. 36. Undisputedly, in the present case, Poonam (deceased) died an un-natural death within 33 days of her marriage. At the time of her death on 7.8.2002, she was in the house of her parents and had left