Crl. Appeal No. 610-SB of 1999 {1} In the High Court of Punjab and Haryana at Chandigarh Crl. Appeal No. 610-SB of 1999 Date of Decision:December 14, 2009 Siri Chand and another ---Appellants versus State of Haryana ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr. Bipan Ghai, Senior Advocate with Mr. Sandeep Gahlawat, Advocate, for the appellants Mr. Raja Sharma, Assistant Advocate General, Haryana *** GURDEV SINGH, J. This appeal by Siri Chand and Rajpal-appellants-accused is against the judgment dated 15.5.1999 passed by Shri Bharat Bhushan Parsoon, Additional Sessions Judge, Gurgaon, vide which he convicted them for the offences under Sections 498-A and 304-B of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/- each and in default thereof to further undergo rigorous imprisonment for a period of two months under Section 498-A IPC and to undergo rigorous imprisonment for a period of Crl. Appeal No. 610-SB of 1999 {2} 07 years and 10 years respectively and to pay a fine of Rs. 2000/- each and in default thereof, to further undergo rigorous imprisonment for a period of six months under Section 304-B IPC. The facts in brief, are that Raj Kumari deceased, was married to Rajpal-accused, who is the son of Siri Chand and Imarti, accused, in the year 1989, by her paternal uncle-Rishi Pal, complainant, PW-1. At that time, he gave dowry to the accused as per his capacity but the accused were greedy type of persons and they started mal-treating Raj Kumari immediately after the marriage on the ground of dowry. They used to give her beatings and sent her to the complainant, on the plea that she was having no brother and that she should sell the land of her share and give the sale consideration to them. Every time she was being sent back to the accused after giving a piece of advice by the complainant. Six months before her death, she had given birth to a daughter. At that time, customary gifts were brought by the complainant but those were thrown away by the accused on the plea that those were worthless. The marriage of Satish Kumar, cousin brother of the complainant, was fixed for 17.6.1994 and at that time the deceased had come to them and had disclosed that the accused had made her life hell and had been harassing her and compelling her to sell the land of her share and had told her that this time she should come back only after the sale of her share in the land otherwise she should not come to her matrimonial home. Even at that time, she was taken back to her in-laws house on 11.7.1994. At that time the accused told that as she had not brought the money after the sale of her share, so she would not be kept alive in the house. On 19.7.1994, she was admitted in Civil Hospital, Gurgaon, and was medically examined by Dr. S.K.Sharma, PW-5 with the Crl. Appeal No. 610-SB of 1999 {3} history of consumption of celphose tablets, who washed her stomach and the gastric lavage was handed over to the police in a sealed glass bottle. On the next night, the complainant received the information regarding the death of the deceased. About all these facts, he has made his statement, Ex. PC before Jai Narain ASI, PW-7, who after making his endorsement Ex. PC/1 upon the same sent that to the police station, on the basis of which formal FIR, Ex. PC/2 was recorded by Smt. Shakuntla ASI, PW-3. The former ASI went to the hospital and prepared the inquest report Ex. PH, in respect of the dead body of the deceased and sent the same for post mortem examination. The autopsy on the dead body was conducted by the Board of Doctors consisting of Dr. D.Prashar, PW-6, and Dr. (Mrs.)Rekha Yadav, who deferred their opinion regarding the cause of death till the receipt of the report of the chemical examiner, to whom the viscera of the dead body of the deceased was sent. After the receipt of the report of the chemical examiner, Ex. PF, the doctor gave his opinion that the death was due to celphose poisoning. After completion of the investigation, the challan was put in before the learned Judicial Magistrate, who committed the same to the court of Session on the ground that the offence under Section 304-B IPC was exclusively triable by the court of Session. The accused were charged for the offences under Sections 498- A and 304-B IPC, to which they pleaded not guilty and claimed trial. To bring home the guilt of the accused, prosecution examined Rishi Pal, PW-1, Gobind, PW-2, ASI Shakuntla, PW-3, Dr. S.K.Sharma, PW-5, Dr. D. Prashar, PW-6 and SI Jai Narain, PW-7. After the evidence was closed by the prosecution, the accused were examined and their statements were recorded under Section 313 Crl. Appeal No. 610-SB of 1999 {4} Cr.P.C. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all the circumstance and pleaded their false implication. They pleaded that the deceased was suffering from Tuberculosis and on account of continuous illness, committed suicide when she was alone in the house. No demand of dowry was ever made by them. The accused were called upon to enter on their defence. They examined Udey Bhan Dhingra, DW-1, Banwar Singh, Patwari, DW-2, Braham Parkash, DW-3, Mahesh Kumar Kaira, DW-4, Ram Saran, DW-5 and Ram Sahai, DW-6. After hearing Public Prosecutor for the State and learned defence counsel for the accused and going through the records of the case, learned Additional Sessions Judge acquitted Amarti-accused and convicted and sentenced the appellants as aforesaid Notice of the appeal was given to the State. I have heard learned counsel for the appellants and Assistant Advocate General, Punjab, for the State and have carefully gone through the records of the case. By way of this appeal, the conviction and sentence of the appellants has been assailed. It has been submitted by learned defence counsel that it is born from the evidence produced by the accused, in their defence, that the accused were caring for the deceased, who had opened an account in the bank in her name during her stay in their house, which was being operated upon by her. Rajpal-accused, had taken an insurance policy on his life, in which he had nominated the deceased. Had there been any such demand of dowry by the accused, this would not have happened. Crl. Appeal No. 610-SB of 1999 {5} It also stands proved that the deceased was suffering from Tuberculosis and was fed up with her life. It was on account of her continuous illness, that she committed suicide. The evidence produced by the prosecution is after thought and does not inspire any confidence. The conviction of the accused could not have been recorded on the basis of such like evidence when the prosecution has miserably failed to prove that there was any such harassment of the deceased on the ground of demand of dowry. On the other hand, it has been submitted by Assistant Advocate General, Punjab, that merely opening of an account by the deceased and nominating her in the life insurance policy, would not show that she was happy in the house of the accused and was not being harassed by them. Those were the normal acts and have nothing to do with the positive acts of the accused, which stand proved from the prosecution evidence. Complainant –Rishi Pal, PW-1, has categorically stated that soon before the death, the deceased was being subjected to cruelty on the ground of demand of dowry. His statement has been fully corroborated by the statement of Gobind PW-2. It has also been proved on the record that she died unnatural death within seven years of her marriage. Therefore, the trial court was very much justified in drawing a presumption of dowry death under Section 113-B of the Evidence Act. The following are the five ingredients of the offence under Section 304-B IPC:- (i) That the death of a woman was caused by burns or bodily injury or in some circumstances which were not normal; (ii) Such death occurs within seven years from the Crl. Appeal No. 610-SB of 1999 {6} date of her marriage; (iii) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband; (iv) Such cruelty or harassment should be for or in connection with the demand of dowry; and (v) It is established that such cruelty or harassment was soon before her death. First ingredient As per the statement of Dr. S.K.Sharma, PW-5, the deceased was brought to Civil Hospital, Gurgaon, with the history of consumption of celphose tablets. As already discussed above, autopsy on the dead body of the deceased was performed by the Board of Doctors and an opinion was given on the basis of the report of the chemical examiner, to whom the viscera of the dead body was sent, that the death was due to celphose poisoning. That evidence has not been assailed by the learned defence counsel. However, he has tried to argue that suicide was committed by the deceased on account of frustration due to continuous illness. For proving that illness, Siri Chand, accused, himself entered the witness box as DW-6, after obtaining the permission of the trial court. He stated that the deceased was suffering from Tuberculosis about one year prior to her death for which she got her treatment from Delhi. He proved on record the documents Ex. DA to DE which, according to him, were issued by the Diagnostic Centre, Delhi and Health Department of Delhi Municipal Corporation. Those documents were exhibited without any objection from the side of the prosecution and as such are to be read in evidence. All these Crl. Appeal No. 610-SB of 1999 {7} documents are dated 2.6.1994 and are the report of the Serology, urine analysis, report of the Radiologist and Haematology report. From none of these reports, it can be concluded that the deceased was suffering from Tuberculosis. No evidence has been produced by the accused in defence nor any such circumstance could be elicited from the cross-examination of the prosecution witnesses, on the basis of which it may be concluded that she was suffering from continuous illness. If that was a fact, the accused must have been getting the medical treatment for her from some doctor. No such doctor has been examined nor any such record had been produced from which it may be concluded that she was suffering from continuous illness and was being treated for Tuberculosis. From the evidence produced by the prosecution, it firmly stands proved that she had died otherwise than under normal circumstance. Second ingredient The evidence produced by the prosecution that the deceased was married to Rajpal-accused, in the year 1989 and that she died on 20.7.1994, was never challenged. From that evidence, it stands proved that her death occurred within seven years of her marriage. Third and Fourth ingredients The prosecution case in the court was unfolded by Rishi Pal, complainant, PW-1, who had deposed about all the facts as are narrated in para No. 2 of this judgment. He categorically stated that the accused were not happy with the dowry given at the time of marriage and they had been insisting the deceased to sell her share of land and give the money of sale consideration to them. They had been harassing her for having not brought sufficient dowry and they were not satisfied with the customary gifts which Crl. Appeal No. 610-SB of 1999 {8} were given to them at the time, when the deceased gave birth to a female child. That statement of the complainant has been fully corroborated by Gobind, PW-2. The accused tried to produce evidence in their defence that the father of the deceased had not left behind any agricultural land. They examined Banwar Singh, Patwari, DW-2, who produced, in Court, the revenue record of the village Madanpur Khadar, pertaining to the year 1980-81. According to him, no land is owned in that village by Hari Kishan or her daughter-Raj Kumari. However, he admitted during his cross- examination that Hari Kishan owns a house in the abadi of the village. He did not produce any record in the court regarding the house or land situated within the lal lakir of the village. It is not the case of the prosecution that the accused had been compelling the deceased to sell the agricultural land. The evidence produced on the record is to the effect that they had been compelling her to sell her share in the land and that land can be agricultural or of other kind. The accused have also tried to produce evidence to the effect that the deceased had opened an account in her name in the bank and she was nominated by Rajpal-accused in the policy of insurance obtained by him on his life. That evidence will not negative the positive evidence produced by the prosecution regarding the harassment of the deceased on the ground of demand of dowry, nor that evidence is sufficient for proving that the relations of the accused with the deceased were cordial. The wives are usually nominated in the insurance policies. The account opened in the bank, was an individual account of the deceased. There is no evidence on the record for proving that the amounts which were deposited in her account Crl. Appeal No. 610-SB of 1999 {9} were given to her by the accused. The accused had the opportunity to test the testimony of the complainant, PW-1 and Shri Gobind, PW-2, at the touch stone of cross examination. They cross examined them at length in order to test their veracity and to impeach their credit.. However, no such fact has crept in their testimony, during that process, which may show that they have not made correct statements in the court. In order to rebut this evidence, it was stated by Siri Chand- accused, DW-6, that they never asked the deceased to bring cash by selling the property of her father nor they ever harassed her in that regard. They never gave any beatings to her. All the facts, constituting the prosecution case, were put to him during cross examination but he denied all those facts. Ram Saran, DW-5, who is residing in the adjoining house of the accused, has stated that he never heard any thing about the demand of dowry or cash by the family of the accused. It is a matter of common knowledge that such like demands are not made in public and are being made in the four corners of the house. It is in rare cases, that the neighbourers came to know about such demands. After careful consideration, I have come to the conclusion that it are the statements of the above said two prosecution witnesses, which are more trust worthy and reliable as compared to the statement of Siri Chand- accused. A correct finding was recorded by the learned Additional Sessions Judge, on the basis of the evidence produced by the prosecution, that the deceased was subjected to harassment by Rajpal, her husband, and Siri Chand, father of the husband, in connection with the demand of dowry. Crl. Appeal No. 610-SB of 1999 {10} Fifth Ingredient It is the statement of Rishi Pal-complainant, PW-1 that on `17.6.1994, the deceased had come to attend the marriage of her cousin brother, Satish Kumar, and at that time she disclosed that she was being harassed by the accused who had been insisting that she should sell the share of her land to pay the money to them. He also stated that on 11.7.1994, he himself and Gobind. PW-2 had taken the deceased to her matrimonial home where the accused met them and told that she had not brought the money after selling the share of her land, so she will not be permitted to stay any more in the matrimonial home. Similar, statement has been made by Gobind, PW-2. From this evidence of the prosecution it stands proved that the accused had been harassing the deceased soon before her death. Once all these ingredients are proved, a presumption can easily be drawn under Section 113-B of the Evidence Act that the accused committed the dowry death of the deceased. Therefore, the conviction of the accused under Section 304-B IPC is hereby upheld. Learned Addl.Sessions Judge convicted the accused for the offence under Section 498-A IPC also. That offence is included in the offence under Section 304-B IPC. They could not have been convicted simultaneously for both those offences. Therefore, their conviction under Section 498-A is hereby set aside. The offence under Section 304-B IPC is punishable with imprisonment for not less than seven years but it may extend to imprisonment for life. The same is not punishable with fine. Still the learned Addl. Sessions Judge sentenced the accused to pay a fine of Rs. Crl. Appeal No. 610-SB of 1999 {11} 2000/- each. That part of the sentence is liable to be set aside and is set aside accordingly. This appeal is disposed of accordingly. In case, the accused are on bail, they be taken into custody for undergoing the sentence of imprisonment imposed upon them. (GURDEV SINGH) JUDGE December 14, 2009 PARAMJIT