Crl.Appeal No. 1175-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1175-SB of 1999 Date of decision:29.4.2011 Rajesh and others … Appellants Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Sanjiv Gupta, Advocate, for the appellants. Mr.Raja Sharma, AAG, Haryana. … JORA SINGH, J. This is an appeal by Rajesh, Ramesh and Ram Chander, appellants, to challenge the judgment of conviction dated 9.11.1999 and order of sentence dated 11.11.1999 passed by Additional Sessions Judge, Kaithal, in Sessions Case No. 120 of 1998, arising out of FIR No.89 dated 17.6.1998 under Section 304-B IPC, PS Dhand. By the said judgment, they were convicted under Sections 304-B and 498-A IPC and sentenced to undergo RI for seven years each under Section 304-B IPC and to undergo RI for two years each under Section 498-A IPC. Both the sentences were ordered to run concurrently. Prosecution story, in brief, is that on 2.3.1998, Balwan Singh, complainant, is the resident of Village Bakipur. Kelo Devi (deceased), sister of the complainant, was married with Rajesh, resident of Village Kaul, about 1-1/2 years ago. At the time of marriage, sufficient dowry Crl.Appeal No. 1175-SB of 1999 2 worth Rs.2.00 lacs was given as per their status, but motorcycle was not given in the marriage. Six months after the marriage, Kelo Devi when came to her parental house, then told the complainant that Rajesh, Ramesh and Ram Chander used to misbehave and maltreat her for want of dowry. They are demanding motorcycle. Complainant along with Kelo Devi came to the house of the accused and requested them not to harass Kelo Devi for want of dowry because already sufficient dowry was given. After leaving Kelo Devi at her matrimonial house, complainant came back. After that, complaints were received by the complainant that accused used to misbehave and maltreat Kelo Devi for want of dowry. On 5.6.1998, Kelo Devi came to her parental house and told the complainant that accused gave beatings to her for not bringing motorcycle. They were harassing her for want of dowry. Kelo Devi was sent to her matrimonial house by saying that they would visit the house of the accused and request them not to harass her for want of dowry, but on 17.6.1998 at about 5.00 PM, two persons from Village Kaul came to Village Bakipur and informed the complainant regarding death of Kelo Devi. On receipt of information regarding death of Kelo Devi, complainant along with his uncle Gulab Singh and some other respectables had gone to village Kaul. Dead body of Kelo Devi was found lying on the double bed in the chobara of the house of accused. Ligature mark was noticed around the neck. When complainant party desired to report the matter to the police, then accused requested them not to report the matter to the police. Accused requested that matter should be sorted out there and then. Accused confessed that they have committed mistake. Gulab Singh and others were deputed to guard the dead body. Complainant had gone to lodge report. Near Bus Stand of Village Chandlana, police Crl.Appeal No. 1175-SB of 1999 3 party headed by SI Ajaib Singh had met the complainant, where his statement (Ex.PJ) was recorded. After making endorsement at 10.00 PM, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded. As per order dated 28.8.1998 by JMIC, Kaithal, case was committed to the Court of Session for trial. Accused were charged under Sections 498-A/304-B IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Dr. B.B.Kakkar stated that Board of Doctors had conducted postmortem examination on the dead body of Kelo Devi on 18.6.1998 and observed as under:- “There was obliquely ligature mark across the neck, between the thyroid and chin, interrupted on the right side. The breadth of ligature mark was 30 cm x 3 cm. The ligature mark was parchment like and baseglicening. Margins are accumosed and hyoid bone was fractured on cut section. It was a dead body young female, moderately built and nourished, wearing violet self printed suit, cream bra, nasal koka (pin) in the left side, 11 red bangles plus one metal ring in the left hand and six red bangles and one metal ring on the right hand. Face was cyanosed, froth was present in both the nostrils eyes. Brain, pleura, walls cartilage, heart were congested. Abdominal wall was healthy and congested. Stomach Crl.Appeal No. 1175-SB of 1999 4 contained semi digested food and it was healthy congested. Small intestine contained chyle, large intestine contained faecal matter and gases. Liver, spleen and kidney were congested. Bladder contained scanty urine. She was carrying pregnancy of about 6 to 8 weeks. Other sex organs were normal.” Cause of death was to due asphyxia, which was ante mortem in nature and sufficient to cause death in ordinary course of nature. PW2 Ram Niwas, Draftsman, stated that he has prepared scaled site plan (Ex.PE) with its correct marginal notes. PW3 Constable Ishwer Singh tendered his affidavit (Ex.PF). Affidavit of MHC Balbir Singh (Ex.PG) was tendered. PW4 Balwan Singh is the complainant and has reiterated his stand before the police. PW5 Bal Kishan stated that Kelo Devi was married with Rajesh. Sufficient dowry was given at the time of marriage. Six months after the marriage, when Kelo Devi came to their Village, then told that accused used to misbehave and maltreat her for want of dowry. After the death of Kelo Devi, he along with the complainant and other relations had gone to the house of the accused, where dead body of Kelo Devi was lying. Matter was reported to the police by the complainant. PW6 SI Ajaib Singh is the Investigating Officer. After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and claimed trial. Defence version of the appellants was that false case was registered against them at the instance of Balwan Singh, complainant. Kelo Crl.Appeal No. 1175-SB of 1999 5 Devi had committed suicide. Accused were not present in the house. Rajesh was residing separately from Ramesh and Ram Chander. Rajesh and his wife were occupying first floor, whereas Ramesh, his wife and Ram Chander were residing on the ground floor. All the accused were residing separately. There was no demand of motorcycle. On 5.6.1998, accused along with Kelo Devi and other relations had gone to Village Bakipur to attend pagri ceremony, but at that time, there was no complaint from the side of the complainant. Kelo Devi was residing separately in the matrimonial house. She also used to visit the house of in-laws of her cousin brother Ramesh. In-laws of Ramesh also used to visit the house of Rajesh, accused, because their house was in the same street. In defence, DW1 Rattna appeared and stated that all the accused were residing separately. Ramesh and Ram Chander were residing on the ground floor, whereas Rajesh and his wife were occupying first floor. After hearing learned PP for the State, learned defence counsel for the appellants and going through the 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 defence counsel for the appellants argued that Kelo Devi (deceased) was married with Rajesh and marriage was solemnized on 15.2.1997. Death was on 17.6.1998. But no date, month when appellants demanded motorcycle. After death of Singh Ram, father of Bal Kishan, who was uncle of the complainant, there was pagri ceremony and to attend pagri ceremony, appellants had gone to Village Bakipur but there was no complaint by the deceased or complainant party that appellants used to Crl.Appeal No. 1175-SB of 1999 6 misbehave and maltreat the deceased for want of dowry. Rajesh, husband of the deceased, along with deceased was residing separately on the first floor, whereas Ramesh with his wife was occupying some portion on the ground floor. Remaining portion on the ground floor was in possession of Ram Chander, father-in-law of the deceased. Wife of Ram Chander had died few months after the marriage of Rajesh. During life time of mother- in-law of the deceased, both brothers were separated. One was on the first floor and second was on the ground floor. Ram Chander was residing alone on the ground floor. When Ramesh and Ram Chander were residing separately, then no reason to demand motorcycle. They were not to be benefited in case motorcycle supplied by the complainant party. Before the present occurrence, no complaint to any authority. There was no panchayat that appellants used to misbehave and maltreat the deceased for want of dowry. Ramesh, cousin brother of deceased, was married in the same village. In-laws of Ramesh used to visit the house of the appellants. Deceased also used to visit the house of in-laws of Ramesh but no one appeared from the in-laws of Ramesh to state that appellants used to misbehave and maltreat the deceased for want of dowry. Unnatural death on 17.6.1998 but before that, there was no complaint to any authority if there was demand of motorcycle. No panchayat was convened. At the time of marriage, there was no demand of dowry. So, after marriage, there was no reason to demand motorcycle. In case, there was demand of motor, then Ramesh and Ram Chander were not to be benefited while residing separately and this fact is clear from the statement of DW1 Rattna. Appellants were not present at the time of occurrence. In fact, deceased had committed suicide. No fault of the appellants. Appellants were named Crl.Appeal No. 1175-SB of 1999 7 when complainant party came to know about unnatural death of Kelo Devi. Learned State counsel argued that Kelo Devi was married with Rajesh and marriage was solemnized on 15.2.1997. Unnatural death at the in-laws house within 7 years from the date of marriage. According to defence version, Kelo Devi had committed suicide but this fact is not correct in view of the statement of Dr.B.B.Kakkar. If deceased was enjoying married life and was residing separately, then there was no reason to commit suicide. In case, deceased had committed suicide with the help of parna by hanging herself from ceiling fan, then no explanation who had brought down the dead body from the ceiling fan. After dead body was found hanging from the ceiling fan, then matter should have been reported to the police. Appellants should have informed the complainant party also. No complaint to police or complainant party. Admittedly, Kelo Devi (deceased) was married with Rajesh and marriage was solemnized on 15.2.1997. Unnatural death on 17.6.1998. Appellants used to misbehave and maltreat the deceased for want of dowry. Appellants were demanding motorcycle but complainant party had spent sufficient amount to perform marriage of Kelo Devi. Complainant party was not in a position to supply motorcycle, then Kelo Devi was murdered for want of dowry. Deceased was subjected to harassment or cruelty in connection with demand of dowry. Harassment or cruelty was soon before the death, whereas defence version of the appellants was that Kelo Devi has committed suicide. There was no demand of dowry. Kelo Devi was not subjected to harassment or cruelty. In fact, without any reason, Kelo Devi had committed suicide when appellants were not present in the house. Appellants were residing separately. Now question is whether prosecution Crl.Appeal No. 1175-SB of 1999 8 story inspires confidence or defence version seems to be more probable than the prosecution story. To convict the appellants under Section 304-B IPC, prosecution was required to establish that unnatural death at the in-laws house within 7 years from the date of marriage. Deceased was subjected to harassment or cruelty in connection with demand of dowry and harassment or cruelty was soon before the death. Ex.PJ is the statement of Balwan Singh, complainant, recorded by SI Ajaib Singh on 17.6.1998 at 10.00 PM. According to the statement, Kelo Devi was married with Rajesh about 1-1/2 years ago. Balwan Singh appeared in Court as PW4 and stated that Kelo Devi was married with Rajesh and marriage was solemnized on 15.2.1997. No suggestion to the complainant that marriage of Kelo Devi was not solemnized on 15.2.1997. According to the story, six months after the marriage, deceased informed the complainant party that appellants used to misbehave and maltreat her for want of dowry. Then appellants were requested not to misbehave and maltreat the deceased. On 5.6.1998, deceased informed the complainant that appellants used to misbehave and maltreat her for want of dowry. They are demanding motorcycle. She was also given beatings. On 17.6.1998, message was received regarding unnatural death of Kelo Devi. On receipt of message, complainant party had gone to the house of the appellants. Dead body of deceased was found lying on the double bed in the chobara. Unnatural death at the in-laws house. Defence version of the appellants was that deceased has committed suicide without any reason. Appellants were not present in the house at the time of occurrence. Dr. B.B.Kakkar appeared as PW1 and stated that cause of death in this case was Crl.Appeal No. 1175-SB of 1999 9 due to asphyxia, which was ante mortem in nature and sufficient to cause death in the ordinary course of nature. No suggestion to the doctor that death was natural. Allegation of the appellants was that Kelo Devi has committed suicide. Meaning thereby, death was unnatural at the in-laws house. So, first ingredient to convict the appellants under Section 304-B IPC is clear. To convict the appellants under Section 304-B IPC, prosecution was required to establish whether deceased was subjected to harassment or cruelty in connection with demand of dowry and such harassment or cruelty was soon before the death or deceased has committed suicide. As discussed earlier, Kelo Devi was married with Rajesh and marriage was solemnized on 15.2.1997. PW4 Balwan Singh, complainant, and Bal Kishan appearing as PW5 stated that at the time of marriage, there was no demand of dowry. Balwan Singh stated that six months after the marriage, Kelo Devi came and told that appellants used to misbehave and maltreat her for want of dowry. Kelo Devi also brought this fact to the notice of PW5 Bal Kishan. Then complainant along with Kelo Devi had gone to the house of the appellants. Appellants were requested not to misbehave and maltreat Kelo Devi for want of dowry. On 5.6.1998, Kelo Devi brought to the notice of the complainant that appellants used to misbehave and maltreat her for want of dowry. On 17.6.1998, message was received regarding unnatural death of Kelo Devi at her in-laws house. Balwan Singh as PW4 admitted that at the time of marriage, there was no demand of dowry. Suggestion was given to Balwan Singh that Ramesh and Ram Chander were residing separately from the deceased but reply of Balwan Singh was that all the appellants were residing together and not separately. On 5.6.1998, when there was a pagri Crl.Appeal No. 1175-SB of 1999 10 ceremony of his uncle, then appellants came. Balwan Singh also admitted that before unnatural death, there was no complaint to any authority. There was no panchayat. When the appellants came to attend pagri ceremony of Singh Ram, then there was no protest from the side of the complainant party. This fact is also an admitted one that before the occurrence, there was no panchayat. No complaint was sent to any authority that appellants are demanding dowry. PW5 Bal Kishan is the cousin brother of Balwan Singh and stated that on 5.6.1998, when Kelo Devi came to her parental house, then told that appellants used to misbehave and maltreat her for want of dowry. She was also given beatings. Appellants are pressurizing her to bring motorcycle from her parents. At the time of occurrence, Kelo Devi was pregnant. But suggestion given to the witnesses was that Kelo Devi was not pregnant. Suggestion was given that Kelo Devi has committed suicide. But as discussed earlier, marriage of Kelo Devi with Rajesh was solemnized on 15.2.1997. Unnatural death on 17.6.1998 at the in-laws house. At the time of death, Kelo Devi was pregnant. Suggestion was given to the witnesses that Kelo Devi was residing happily but she has committed suicide without any reason. Kelo Devi was about 21 years' old and had no issue but she was pregnant. If Kelo Devi was enjoying married life and there was no demand of dowry from the side of the appellants, then without any reason, there was no idea to commit suicide. If Kelo Devi had committed suicide by hanging herself from ceiling fan, then who had brought down the dead body from the ceiling fan because appellants, as per defence version, were not present in the house at the time of occurrence. Unnatural death in the Crl.Appeal No. 1175-SB of 1999 11 house of the appellants and if appellants were not present in the house, then who had brought down the dead body from the ceiling fan. DW1 Rattna stated that appellants were residing separately but he has not stated a word that such and such person had brought down the dead body from the ceiling fan. Appellants were not present in the house. Suggestion was given to the doctor that Kelo Devi has committed suicide and she was not pregnant but Doctor B.B.Kakkar in cross-examination stated that symptoms noticed on the person of the deceased should not be there in case of suicide. If appellants were not present in the house at the time of occurrence, then how they can state that deceased has committed suicide and if deceased has committed suicide by hanging herself from the ceiling fan with the help of parna, then who had brought down the dead body from the ceiling fan. No defence that anyone was present at the spot when deceased had committed suicide. If some one was present at the time of committing suicide by the deceased as per defence version, then he should have appeared in Court to state that he was present at the spot and in his presence, deceased had committed suicide. Evidence on the file rather shows that when complainant party had received information regarding unnatural death of Kelo Devi, then they came to the house of the appellants. Dead body of Kelo Devi was found lying on the double bed in the chobara. Then matter was reported to the police. IO also stated that when he came to the spot, then dead body was noticed while lying on the double bed. No case of the appellants that at the time of inspection by the police, dead body was not lying on the double bed. In fact, dead body was hanging from the ceiling fan. In 2004(4) RCR (Crl.) 580, Nachhatar Singh and others vs. State of Punjab, under Section 304-B IPC, accused were acquitted on the Crl.Appeal No. 1175-SB of 1999 12 ground that none of the PWs stated as to when, in which year, date and month, any act of cruelty in connection with demand of dowry was committed. No specific instance in that regard and regarding demand of dowry and cruelty, no complaint was made to the police or any other responsible officer. But in the present case, six months after the marriage when Kelo Devi came to her parental house, then told the complainant that appellants are demanding motorcycle. She was harassed for want of dowry by the appellants. On 5.6.1998, Kelo Devi had also informed the complainant party that appellants used to beat her and were demanding motorcycle. Ramesh, relation of the complainant, was married in the same village, i.e., village of the appellants. But complainant stated that in-laws of Ramesh used to visit the house of the deceased. No evidence on the file that deceased had ever disclosed to the in-laws of Ramesh regarding cruelty or harassment in connection with demand of dowry by the appellants. If there was no demand of dowry and the appellants had never harassed the deceased for want of dowry, then anyone from the in-laws of Ramesh could be produced in defence to state that whenever Kelo Devi met them, then there was no complaint regarding demand of dowry by the appellants. Defence version of the appellants was that all the appellants were residing separately. Deceased along with Rajesh was occupying first floor, whereas Ramesh along with his family was residing on the ground floor. Ram Chander was also residing on the ground floor. This fact is clear from the statement of DW1 Rattna but after going through the evidence on the file, I am of the opinion that appellants were not residing separately. Crl.Appeal No. 1175-SB of 1999 13 Site plan is on the file and there was only one kitchen. If appellants were residing separately, then they could easily produce copies of ration card, voter list etc. No complaint till today by Rattna. He had not appeared before the IO. He is from the village of the appellants. So, very easy to produce such like witness in defence to state that appellants were residing separately. Next submission of learned defence counsel for the appellants was that Rajesh was residing separately. At the time of occurrence, there was no demand of dowry. Six months after the marriage, there was demand of motorcycle. Except demand of motorcycle, no other demand. Ramesh and Ram Chander were not to be benefited if motorcycle was given. So, story regarding demand of motorcycle was concocted simply to implicate the appellants but I am not in a position to agree with the submission of learned defence counsel for the appellants because as discussed earlier, regarding separate residence, no evidence on the file, except suggestion to Balwan Singh and Bal Kishan that appellants were residing separately. Regarding separate residence, no ration card, voter list, receipt regarding payment of electricity charges or water charges etc. Site plan shows that appellants were residing in the same house, although first floor was in possession of Rajesh and ground floor in possession of Ramesh and Ram Chander. When the family was joint, then appellants were to be benefited in case motorcycle given by the complainant party. Common experience shows that when there are number of members in the family including females and females are illiterate and cannot drive vehicle, even then there is a demand of car or motorcycle. Ram Chander was an old man but there was specific demand of motorcycle. According to the appellants, Crl.Appeal No. 1175-SB of 1999 14 they were not present in the house at the time of occurrence. If they were not present in the house at the time of occurrence, then they cannot say that deceased had committed suicide. When deceased was enjoying married life and there was no difficulty while staying in the in-laws house, then without any reason, there was no idea to commit suicide. According to Dr. B.B.Kakkar, symptoms noticed on the person of the deceased were not of suicide. If deceased had committed suicide, then dead body should have been noticed while hanging from the ceiling fan. No explanation who had brought down the dead body from the ceiling fan and why. If deceased had committed suicide, then appellants should have reported the matter to the police. Intimation should have been given to the complainant party. No report to police and intimation to the complainant party. After postmortem examination, dead body was cremated by the complainant party and not by the appellants. Appellants were produced before the police on 20.6.1998 by Gulab Singh. If appellants were not at fault and deceased had committed suicide, then appellants should remain present in the house. There was no reason to remain absent. No allegation of the appellants that on the same day, they were taken in custody and were kept in custody