-1- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.978-SB of 2002. Date of Decision: February 25, 2010. Mukesh ... Appellant VERSUS State of Haryana ...Respondent Criminal Revision No.1757 of 2002. Dale Singh ... Petitioner VERSUS Mukesh and others ...Respondents 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Hemant Bassi, Advocate, and Mr. O.P.Gupta, Advocate, amicus curiae, for the appellant. -2- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. Mr. R.N. Kush, Advocate, for the complainant-petitioner Dale Singh in Criminal Revision No.1757 of 2002. Ms. Sushma Chopra, Additional Advocate General, Haryana. -.- MOHINDER PAL, J. Appellant Mukesh, along with Chhano Devi, Randhir Singh and Manju, was tried by the learned Additional Sessions Judge, Hisar, for the offences punishable under Sections 304-B and 498-A of the Indian Penal Code (for short `the Code'). Randhir Singh died during trial and criminal proceedings against him, accordingly, stood abated. Chhano Devi and Manju were acquitted by the trial Court. Vide judgment of conviction dated 7.5.2002 and the sentence order dated 9.5.2002, appellant Mukesh was convicted under Sections 304-B and 498-A of the Code and sentenced to undergo rigorous imprisonment for seven years under Section 304-B of the Code and to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/- in default whereof to undergo further rigorous imprisonment for one month under Section 498-A of the Code. Both the sentences were ordered to run concurrently. Criminal Appeal No.978-SB of 2002 has been filed by appellant Mukesh challenging his conviction and sentence as aforesaid whereas Criminal Revision No.1757 of 2002 has been filed by complainant-petitioner Dale Singh for enhancement of the -3- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. sentence awarded to appellant Mukesh and for setting aside the judgment of the trial Court whereby Chhano Devi and Manju were acquitted of the charge framed against them. Leave to appeal against Chhano Devi and Manju was declined by a Division Bench of this Court vide order dated 26.11.2002 and Criminal Revision No.1757 of 2002 qua appellant Mukesh was ordered to be heard with Criminal Appeal No.978-SB of 2002. By this judgment, Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002 are being disposed of. The instant case was registered on the basis of statement (Exhibit P.J) made by complainant Dale Singh. The eldest daughter of Dale Singh, namely, Santosh was married with appellant Mukesh on 21.3.1991. Sufficient dowry, as per his capacity, was given by complainant Dale Singh at the time of marriage. However, the appellant demanded scooter from the complainant and started harassing Santosh on that account. A number of letters were written by Santosh to that effect to the complainant. In that respect, the complainant had made an application to the Senior Superintendent of Police, Hisar in the year 1993. The matter was compromised on the intervention of the Birdari. On 30.5.1994, Santosh gave birth to a female child for the second time. While she was admitted in Chura Mani Hospital, the complainant took his daughter to his house. On account of the illness of the grand-daughter, Santosh was got admitted in Balaji -4- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. Hospital. Thereafter, appellant Mukesh etc. also visited Balaji Hospital where the complainant was present. In the presence of the complainant, the appellant took his daughter Santosh to his house saying that they would not allow Santosh to remain alive even for a month as the demand of Scooter had not been met by the complainant. On 29.6.1994 in the morning the complainant came to know that his daughter had been killed by the accused by administering her some poisonous substance. Dr.Pawan Jain (P.W.6) had conducted autopsy on the dead body of Santosh. On receipt of the report of the Chemical Examiner the cause of death was opined to be ingestion of organo phosphorus, a pesticide. After completion of investigation, challan against the accused was presented before the Ilaqa Magistrate, who committed the case to the Court of Session. Charge under Sections 304-B and 498-A of the Code was framed against the accused, who did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined as many as twelve witnesses. Appellant Mukesh, in his statement recorded under Section 313 of the Code of Criminal Procedure, denied the prosecution allegations and pleaded innocence. Duli Chand (D.W.1), Om parkash (D.W.2), Braham Parkash (D.W.3) and Santosh (D.W.4) were examined by the accused in defence. -5- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. I have heard the learned counsel for the parties and have gone through the records of the case. The question arises as to whether accused-appellant Mukesh is liable under Sections 304-B and 498-A of the Code for which offences he has been found guilty by the learned trial Judge. Section 304-B of the Code, for facility of reference, is reproduced hereunder:- “ 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”. As per the provisions of Section 304-B of the Code, the offence of “dowry death” consists of three ingredients i.e death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances; that the death -6- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. occurs within seven years of her marriage; and that soon before her death, she was subjected to cruelty or harassment by her husband or his relatives for or in connection with any demand for dowry. If these three ingredients are there, the offence of “dowry death” can be said to be complete and proved. In this case, as has been held by the trial Court, Santosh died within seven years of her marriage. The marriage of Santosh with appellant Mukesh had taken place in March, 1991 and she died in June, 1994. Death of Santosh occurred due to ingestion of organo phosphorus, a pesticide i.e otherwise than under normal circumstances. However, the allegation that soon before her death Santosh was subjected to cruelty or harassment by her husband for or in connection with any demand of dowry, is not proved. Complainant Dale Singh (P.W.7) has stated that appellant Mukesh had taken deceased Santosh to her matrimonial house from Balaji Hospital on 26.6.1994 where she had been admitted on account of the illness of her newly born daughter. The complainant stated at that time he was present in the hospital and appellant Mukesh had told him that he would not let his daughter alive for more than a month as the complainant had not fulfilled the demand of scooter. Smt.Bhulan Devi (P.W.8), mother of Santosh, deposed that appellant Mukesh had threatened to kill Santosh in her (P.W.8's) presence. It is not acceptable that the appellant would utter -7- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. such words while his daughter was admitted in hospital. It appears that in his statement the complainant had stated about the appellant having mentioned that he would kill Santosh as his demand of scooter had not been met, in order to bring this case within the purview of Section 304-B of the Code i.e the deceased was subjected to cruelty and harassment on account of demand of dowry soon before her death. As such, the evidence of the complainant and the mother of the deceased, mentioned above, does not disclose that the deceased, soon before her death, was subjected to cruelty or harassment by appellant Mukesh for or in connection with any demand for dowry. Thus, the offence of “dowry death” cannot be said to be complete and proved in this case. However, the facts and circumstances of the case, disclose that appellant Mukesh has committed the offence punishable under Section 306 of the Code. Section 306 of the Code, for facility of reference, is reproduced as under:- “ 306. Abetment of suicide.- If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” -8- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. As has been observed above, complainant Dale Ram has stated that soon after the marriage of Santosh with the appellant, the appellant had started demanding scooter from the complainant and started harassing Santosh on that account. A number of letters were written by Santosh to that effect to the complainant. The complainant had also made an application to the Senior Superintendent of Police, Hisar in the year 1993 in that regard. The matter was compromised on the intervention of the Birdari. The complaint (Exhibit P.12) dated 14.4.1993 was made by complainant Dale Singh to the Chief Minister of Haryana in which it was alleged that on 14.4.1993 at about 2.40 P.M, when the complainant and his wife were present at his house, appellant Mukesh, who was armed with a revolver, asked from the complainant the whereabouts of Santosh. On the pistol point, appellant Mukesh had threatened the complainant on 14.4.1993 that he would kill his children. Appellant also threatened to kill the complainant and his family members. Thereafter, compromise (Exhibit P.13) had been arrived at between the complainant and the accused party. The relations between the deceased and the appellant were, apparently, not quite cordial on account of the behaviour of the appellant. The complainant had approached the police earlier also against the accused and the matter was compromised. The deceased had been subjected to harassment and maltreatment by the appellant as his demand of scooter had not been met by her parents. The -9- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. facts and circumstances, discussed above, suggest that there was no harmony between appellant Mukesh and the deceased, which led the deceased to take the extreme step of committing suicide. For the aforesaid reasons, the offence committed by appellant Mukesh would fall under Sections 306 and 498-A of the Code and not under Section 304-B of the Code, as has been held by the trial Court. The conviction of appellant Mukesh is, accordingly, converted from Section 304-B to Section 306 of the Code. The impugned judgment of conviction and the sentence order, insofar as convicting and sentencing the appellant under Section 304-B of the Code are accordingly set aside and, instead, the appellant is convicted under Section 306 of the Code. Insofar as the sentence to be awarded to the appellant Mukesh under Section 306 of the Code, he has already undergone more than five years and nine months of actual sentence as is evident from the Custody Certificate dated 21.9.2009 placed on record. Keeping in view the facts and circumstances of the case, I am of the considered opinion that the ends of justice will be adequately met with if appellant, under Section 306 of the Code, is sentenced to undergo rigorous imprisonment for the period he has already undergone. I order accordingly. The sentence awarded to appellant Mukesh by the trial Court under Section 498-A of the Code shall remain unaltered. It is made clear that the sentences awarded to the -10- Criminal Appeal No.978-SB of 2002 and Criminal Revision No.1757 of 2002. appellant under Sections 306 and 498-A of the Code shall run concurrently. This appeal is allowed to the extent indicated above. Consequently, Criminal Revision No.1757 of 2002 filed by complainant Dale Singh is dismissed. February 25, 2010. ( MOHINDER PAL ) ak JUDGE