Crl.Appeal No. 1014-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1014-SB of 2002 Date of decision:14.10.2010 Baljeet … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.R.N.Khush, Advocate, for the appellant. Mr.Amit Goyal, AAG, Haryana. … JORA SINGH, J. Baljeet has directed this appeal against the judgment of conviction dated 4.3.2002 and order of sentence dated 6.3.2002 passed by Additional Sessions Judge, Fast Track Court, Hisar, in Criminal Case No. 54 SC dated 1.2.2001/3.1.2002, arising out of FIR No.203 dated 18.10.2000 under Sections 498-A/302/304-B IPC, PS, Sadar Hansi. By the said judgment, he was convicted under Sections 304- B/498-A IPC and sentenced to undergo RI for ten years under Section 304- B IPC and to undergo RI for two years and to pay a fine of Rs.500/- under Section 498-A IPC, in default of payment of fine, to further undergo RI for six months. Smt. Moman Devi was acquitted of the charge levelled against her. Against acquittal, no appeal by the State. Prosecution story, in brief, is that on 18.12.2000, SI Jagbir Singh, SHO, Police Station, Sadar Hansi, was present in the police station. Crl.Appeal No. 1014-SB of 2002 2 Hardev Singh, complainant, had gone to the police station and submitted an application. Allegation of the complainant was that he was the resident of Village Kharar. At present, he was residing in Village Mudhakhera. He has three daughters and two sons. Both the daughters, namely, Rani Devi and Geeta, were married. Rani Devi, eldest daughter, was married to Baljeet, whereas Geeta was married with Mangal. Baljeet was the real brother of Mangal. Marriages of both the daughters were solemnized three years back. Sufficient dowry was given at the time of marriage. After few days of the marriage, Rani Devi and her husband Baljeet had separated from her in- laws. For few days, every thing was proper and they lived peacefully. 5/6 months after the marriage, Baljeet started beating Rani Devi with a view to bring dowry. Whenever Rani Devi came to her parental house, then each time she complained against Baljeet by saying that he was demanding Rs.20,000/- for purchase of furniture machine (work machine operated by the Carpenter). Rs.20,000/- was arranged by him and paid to Baljeet about 5 months back at Village Data. For some days, behaviour of Baljeet was normal but again about one month back, Baljeet along with Rani Devi and his (complainant) younger daughter came to Village Mudhakhera, then Rani Devi told him that Baljeet was demanding Rs.10,000/- and she was beaten daily in this connection. In the evening, she had showed the injuries on her person to him and his wife. Baljeet was requested to behave properly and assured him that amount was to be arranged by borrowing. After that, on many times, he received message through his younger daughter Geeta that amount of Rs.10,000/- be sent otherwise, Rani Devi was to be eliminated. On 9.10.2000, he had gone to Village Data and requested Baljeet not to beat Rani Devi. He assured Baljeet to arrange Rs.10,000/- within 8/10 days, but Crl.Appeal No. 1014-SB of 2002 3 Baljeet stated that next morning he wanted the payment. While he was about to leave the house of Baljeet, then Rani Devi requested him to take her also by saying that Baljeet demanded cooler and vicky. On 17.10.2000 at about 4.00 PM. Balraj (jeth of Rani Devi) came and told him that Rani Devi was serious and they were summoned by Rani Devi. He along with his wife and brother Dharam Pal had gone to Village Data. In the house of Baljeet, dead body of Rani Devi was lying. Geeta told that Rani Devi was maltreated by Baljeet on the intervening night of 16/17.10.2000. They suspected that either Rani Devi was murdered by Baljeet or she was compelled to die on account of demand of dowry. Mother-in-law of Rani Devi was also responsible in getting her daughter Rani Devi murdered because she was always taunting her by saying that she (Rani Devi) was from a poor house and has not brought anything from her parents. After making endorsement on the application, formal FIR was recorded. SI Jagbir Singh had gone to the spot along with Vijender Kumar, Naib Tehsildar, who was requested to conduct inquest proceedings in view of the application. Naib Tehsildar had prepared inquest report. Rough site plan with correct marginal notes was prepared. Dead body was sent to hospital for postmortem examination. After postmortem examination, dead body was handed over to the relations of deceased for cremation. Baljeet was arrested on 19.10.2000, whereas Moman Devi was arrested on 1.11.2000. After completion of investigation, challan was presented in the Court. Crl.Appeal No. 1014-SB of 2002 4 Accused was charged under Section 302 IPC and in the alternative under Sections 304-B/498-A IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined 11 witnesses. PW1 Constable Rajpal Singh, PW2 HC Om Parkash and PW3 HC Lal Singh tendered their affidavits, Ex.PA, Ex.PB and Ex.PC, respectively. PW4 ASI Hawa Singh has recorded statements of some of the prosecution witnesses. PW5 Vijender Kumar Bhardwaj, Naib Tehsildar-cum- Executive Magistrate, has prepared inquest report (Ex.PE). Application (Ex.PF) was moved for postmortem examination. PW6 Dr. Jaibir Sharma had conducted postmortem examination on the dead body of Rani Devi on 18.10.2000 and observed as under:- “No external mark of injury seen on the nose except a blackish abrasion on back of the nose. (1) Injury contusion bluish dark coloured on the right side upper chest. Second and third inter costal space. On the dissection, there was reddish haemorrhage. Blood on the underlined tissues. (2) Contusion right side chin blue dark coloured. On dissection haemorrhage present. (3) Surgical emphysena positive on the right side of the chest. On dissection of chest there was some blood positive on the right side of the chest cavity. On examination of the lung, no external mark of injury seen. Mouth contains little blood on the left side orropharyx cavity.” Crl.Appeal No. 1014-SB of 2002 5 PW7 Hardev Singh is the complainant and has reiterated the story in view of the application presented before the police. PW8 Pataso is the mother of the deceased. She has supported the version of the complainant. PW9 SI Jagbir Singh is the Investigating Officer. PW10 Raju, Draftsman, has prepared scaled site plan (Ex.PM). PW11 Geeta is the real sister of the deceased. She has supported the version of the prosecution. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was that case is false. In defence, DW1 Ram Kishan appeared and stated on oath that he was the neighbour of Baljeet. Baljeet had no dispute with his wife Rani Devi. Rani Devi used to remain ill. She had taken some poison because she was fed up with her illness. There was no demand of dowry. DW2 Puran stated that there was peace in the house of the appellant. There was no dispute and no demand of dowry. Rani Devi and her sister Geeta were suffering. Rani Devi used to take medicine and due to her mental condition, she took some medicine and died. DW3 Nanu Ram stated that appellant had no dispute with his wife Rani Devi. There was no demand of dowry. Rani Devi used to remain ill and was under treatment. After hearing learned PP for the State, learned defence counsel for the accused and from the perusal of evidence on the file, accused was convicted and sentenced as stated aforesaid. Crl.Appeal No. 1014-SB of 2002 6 I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellant argued that PW1 to PW4 appeared in Court and their cross-examination was deferred. After that, they were not produced for cross-examination. Statements of PW1 to PW4 are not to be read into evidence. Secondly, Rani Devi was married three years earlier to the occurrence with the appellant but there was no demand of dowry. According to story, Rs.20,000/- was demanded to purchase furniture machine and Rs.10,000/- was demanded to purchase conveyance because appellant was a Carpenter. For business purpose, conveyance was required. Payment of Rs.20,000/- for business purpose does not amount to demand for dowry. In fact, deceased was not keeping good health. She used to take medicine. Out of frustration, she had committed suicide. No fault of the appellant. Learned State counsel argued that three years earlier to the occurrence, Rani Devi was married with the appellant. Real sister of Rani Devi, namely, Geeta was married with Mangal, real brother of the appellant. Sufficient dowry was given at the time of marriage. Deceased and the appellant were residing separately from in-laws. For some days, behaviour of appellant was all right but 5/6 months after the marriage, appellant started giving beatings to the deceased with this idea that she would bring dowry. Deceased used to inform her parents about the behaviour of the appellant. Rs.20,000/- was demanded at one time. By borrowing the payment, Rs.20,000/- was paid to the appellant five months earlier to the occurrence. For some days, behaviour of appellant was normal, but again appellant started giving beatings to the deceased. Again Crl.Appeal No. 1014-SB of 2002 7 appellant demanded Rs.10,000/-. On 9.10.2000, complainant had gone to the house of the appellant. Appellant was requested not to beat the deceased. Complainant had assured the appellant that within 8/10 days, payment was to be arranged but appellant wanted the payment next morning. Death of Rani Devi was within 7 years from the date of marriage. Death was unnatural at the in-laws house. Rani Devi was harassed for want of dowry soon before the death. In case, Rani Devi was happily residing at her in- laws house with the appellant, then there was no idea to commit suicide. DW1 stated that deceased used to remain ill and had consumed some poison because she was fed up with her illness, whereas DW2 stated that Deceased used to take medicine. Some medicine was taken and death was due to some medicine. Statement of DW2 is contrary to the statement of DW1. Third defence witness stated that deceased used to remain ill and was under treatment. She was suffering from TB but no report of any doctor that deceased was suffering from TB or was getting treatment. If deceased was not well and remained ill or she was a TB patient, then why she was not taken to any hospital for medical aid. Unnatural death was on the intervening night of 16/17.10.2000, but no intimation by the appellant. Allegation of the prosecution was that three years earlier to the occurrence, deceased was married with Baljeet. Real sister of the deceased, namely, Geeta was married with Mangal, real brother of Baljeet. Marriage of both the sisters was on the same day. Sufficient dowry was given at the time of marriage but later on, appellant used to misbehave and maltreat the deceased for want of dowry. Defence version of the appellant was that case is false. In fact, deceased used to remain ill and was getting treatment. Out of frustration, after taking some medicine, she committed suicide. Crl.Appeal No. 1014-SB of 2002 8 Undisputedly, appellant is to be presumed innocent unless guilt is proved. Appellant when examined under Section 313 Cr.P.C., then he was expected to deny all the allegations and remain silent, but once the appellant has taken the stand that deceased used to remain ill and out of frustration, committed suicide, then Court is to see whether death was as per prosecution story or defence version seems to be more probable than the prosecution version. First contention of learned counsel for the appellant was that PW1 to PW4 appeared in Court and their cross-examination was deferred. After that, they were not produced for cross-examination. Without cross- examination, statements of PW1 to PW4 cannot be read into evidence. After going through the evidence on the file, I am of the opinion that defence version of appellant seems to be reasonable one. PW1 Constable Rajpal Singh, PW2 HC Om Parkash and PW3 HC Lal Singh in examination-in-chief tendered their affidavits, Ex.PA, Ex.PB and Ex.PC, respectively, but their cross examination was deferred. PW4 ASI Hawa Singh stated that he has recorded statements of some of the prosecution witnesses. His cross-examination was deferred. But later on, PW1 to PW4 were not produced for cross-examination. No statement of the appellant that he was not to cross-examine the prosecution witnesses, namely, PW1 to PW4. Prosecution witnesses, i.e., PW1 to PW4, were not produced in Court for the purpose of cross-examination. So, without cross- examination, statements of PW1 to PW4 are not to be read into evidence. Their statements are without any evidentiary value. In 2003(3) Crl.C.C. 663, Devi Lal vs. State of Haryana, case was under NDPS Act- Affidavits of Constable and Head Constable Crl.Appeal No. 1014-SB of 2002 9 produced in court to prove link evidence, but they were not produced for cross-examination. Affidavits were also not put to the accused when examined under Section 313 Cr.P.C. Affidavits were not taken into consideration and were ignored. Prosecution story was rejected. In 2004(3) Crl.C.C. 125, Kapil Dev vs. State of Punjab, case was under NDPS Act- Link evidence- Affidavits of two police officials who took the sample to Chemical Examiner tendered in evidence- Officials not produced for cross-examination nor the affidavits put to accused during his statement under Section 313 Cr.P.C.-In the absence of affidavits of police officials, report of Chemical Examiner cannot be acted upon- Held that possibility of tampering with the case property cannot be ruled out when link evidence is not complete. Story was ignored. In 2004(2) RCR (C rl.) 201, Sawant Ram vs. state of Haryana, case was under NDPS Act and to prove link evidence, affidavits of two police officials along with report of Chemical Examiner were tendered in evidence in the absence of accused. Police officials were not produced for cross-examination and documents were not put to the accused when examined under Section 313 Cr.P.C. Held, report of Chemical Examiner cannot be acted upon. Prosecution story was ignored. In 2004(1) Crl.C.C. 213, Raj Kishore Jha vs. State of Bihar and others, case was under Sections 302/304-Part II IPC- Held, Non- examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye-witness- It is always desirable for the prosecution to examine the Investigating Officer. Crl.Appeal No. 1014-SB of 2002 10 Ex.PC is the affidavit of PW3 HC Lal Singh, who was Incharge of Malkhana, with whom case property was deposited by the IO. He had handed over one sealed parcel to Constable Rajpal Singh for deposit in the laboratory. Ex.PA is the affidavit of PW1 Constable Rajpal Singh, who has collected sealed parcel from MHC Lal Singh and has deposited the same in FSL, Madhuban. Ex.PB is the affidavit of PW2 HC Om Parkash, to whom dead body of Rani Devi was handed over by the IO for postmortem examination. After postmortem examination, doctor had handed over two sealed parcels and two envelopes to HC Om Parkash. After that, HC Om Parkash had handed over the same to the IO. PW4 ASI Hawa Singh has simply recorded the statements of certain prosecution witnesses. But PW1 to PW3 should have been produced for the purpose of cross-examination because HC Lal Singh was the Incharge of Malkhana with whom case property was deposited. He had handed over sealed parcel to Constable Rajpal Singh for deposit in the laboratory. Ex.PH is the report of laboratory. As per report (Ex.PH), organo phosphorus pesticide was detected but when there is no statement of HC Lal Singh and Constable Rajpal Singh, then report of the laboratory is without any evidentiary value. Learned State counsel failed to cite any authority that when Incharge of Malkhana and the Constable who had deposited the sample parcel in the laboratory are not produced for the purpose of cross-examination, then their examination-in-chief are to be read against the appellant. In the absence of cross-examination, statements of Crl.Appeal No. 1014-SB of 2002 11 PW1 to PW4 are to be ignored. When statements are ignored, then report of the laboratory is also to be ignored as to what was the cause of death. Next submission of learned counsel for the appellant was that one time, Rs.20,000/- was demanded to purchase furniture machine and second time, Rs.10,000/- was demanded to purchase conveyance. Demand of Rs.20,000/- and Rs.10,000/- does not amount to demand for dowry. After going through the evidence on the file, I am of the opinion that submission of learned counsel for the appellant seems to be reasonable one. Ex.PJ is the complaint by Hardev Singh. Allegation of Hardev Singh was that three years earlier to the occurrence, Rani Devi was married with the appellant and after few days, Rani Devi and Baljeet had separated from their parents. For some days, behaviour of appellant was proper. 5/6 months after marriage, appellant started giving beatings to Rani Devi with a view that she would bring dowry but no MLR on the file. No complaint to the police or panchayat. Next allegation of the complainant was that whenever Rani Devi came, then she informed him that there was demand of Rs.20,000/- to purchase furniture machine and after borrowing Rs.20,000/-, payment was given to the appellant at Village Data. As per story, payment was made five months earlier to the occurrence. Again for few days, behaviour of the appellant remained normal. One month earlier to the occurrence, appellant along with deceased and her sister Geeta came, then deceased told the complainant that there was a demand of Rs.10,000/- and she was given beatings daily. Injuries were also shown to the complainant and his wife. Complainant had assured the appellant that payment was to be arranged within 8/10 days. Crl.Appeal No. 1014-SB of 2002 12 Complainant appeared as PW6 and in examination-in-chief stated that marriage of Rani Devi was solemnized on 29.3.1998. For about one and half months, behaviour of appellant was normal. Then appellant and his mother started harassing Rani Devi for want of dowry. In the complaint, there is not a word that Moman Devi was harassing the deceased for want of dowry. As per complaint, Moman Devi was residing separately from the appellant and deceased. 5/6 months before the death, Rs.20,000/- was demanded to purchase furniture machine. Payment was given to the appellant. Then Rs.10,000/- was demanded to purchase vicky. On 17.10.2000, Balraj came and informed the complainant that Rani Devi was serious. As per information supplied by Balraj, complainant along with his wife, Hawa Singh and Dharam Pal had gone to Village Data, where dead body of Rani Devi was lying. Geeta told him that Rani Devi was killed. Then appellant was directed not to cremate the dead body. He came to his Village Kharar. After that, he along with his brother Gopala gave application (Ex.PJ) to the police. In cross-examination, admitted that after receipt of information from Balraj, they had gone to Village Data at 7.00 PM. After seeing the dead body, firstly he had gone to Village Mirchpur to consult his brother-in-law. After that, he had gone to Village Kharar and from Kharar, he had gone to the police station. Pataso, mother of the deceased, in examination-in-chief stated that few days after the marriage, appellant and his mother started maltreating the deceased. Appellant used to beat the deceased and deceased informed them that they should pay money to the appellant. Appellant and his mother were requested not to harass the deceased. After payment of Rs.20,000/-, deceased complained of ill treatment. Deceased was sent back Crl.Appeal No. 1014-SB of 2002 13 to her matrimonial house. After few days, Balraj came and told them that Rani Devi was in serious condition. They had gone to Village Data. Dead body of Rani Devi was seen while lying in the house of the appellant. Then her husband reported the matter to the police. Injuries were noticed on the person of Rani Devi. Pataso has not stated a word regarding demand of Rs.10,000/- to purchase vicky. As discussed above, earlier to the occurrence, there was no complaint to the police. There was no panchayat and medical. As per PW8 Pataso, injuries were noticed on the person of the deceased. PW6 Dr. Jaibir Sharma stated that no external injury was noticed on the nose except a blackish abrasion on the back of the nose. Three injuries were noticed on the person of the deceased. So, according to the evidence, at one time, Rs.20,000/- was demanded to purchase furniture machine and second time, Rs.10,000/- was demanded to purchase conveyance. Death was unnatural at the in-laws house within seven years from the date of marriage. Section 304-B IPC is reproduced as under:- “(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.” Firstly, death should be within seven years of the marriage. First ingredient to convict the appellant under Section 304-B IPC is clear. Crl.Appeal No. 1014-SB of 2002 14 Second ingredient to convict the appellant under Section 304-B IPC is that death should be unnatural at the in-laws house. In the present case, no documentary evidence on the file as to what was the cause of death. Dr. Jaibir Sharma had conducted postmortem examination and stated that cause of death will be given after Chemical Examiner report. Chemical Examiner report (Ex.PG) is on the file and according to report, organo phosphorus pesticide was detected but report cannot be read into evidence because statements of PW1 Constable Rajpal Singh and PW3 HC Lal Singh without cross-examination are not to be read into evidence. Doctor has not stated a word that death was due to injuries noticed at the time of postmortem examination. So, from the postmortem report and statement of Pataso, one thing is clear that at the time of postmortem examination, number of injuries were noticed on the person of the deceased. According to defence version, deceased was not keeping good health and she used to take medicine. Out of frustration, she committed suicide. Meaning thereby, death at the in-laws house was unnatural. Last ingredient to convict the appellant under Section 304-B IPC is that deceased was subjected to cruelty or harassment by the husband or any of his relative in connection with any demand for dowry soon before her death. Now the question is whether demand of payment to purchase furniture machine or vicky amounts to demand for dowry. In 2000(1) RCR (Crl.) 47, Sukhwinder Singh vs. State of Punjab, marriage took place eight years prior to death of deceased- Accused asked his wife (deceased) to bring some money from her brothers to purchase a taxi- Then Court opined that demand of payment does not amount to demand for dowry. Crl.Appeal No. 1014-SB of 2002 15 In 2001(1) RCR (Crl.) 495, G.A.Mohamed Moideen vs. State, Rs.50,000/- was demanded for taking a shop on lease-Then Court opined that demand of payment for taking a shop on lease does not amount to demand for dowry- Then conviction under Section 304-B IPC was set aside. In the present case also, at one time, Rs.20,000/- was demand to purchase furniture machine and second time, demand of Rs.10,000/- was for purchasing a conveyance, then demand of cash payment does not amount