Criminal Appeal No.3-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No.3-SB of 1998 Date of decision : 06.11.2008 Satbir Singh .....Appellant Versus Haryana State ...Respondent 2. Criminal Appeal No.16-SB of 1998 Sarbati .....Appellant Versus Haryana State ...Respondent 3. Criminal Revision No.106 of 1998 Prem Chand .....Petitioner Versus Satbir Singh and others ...Respondents CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr.Ashit Malik, Advocate for the appellants. Mr.S.S.Mor, Senior Deputy Advocate General, Haryana. Mr.K.S.Dhaliwal, Advocate for the complainant. S. D. ANAND, J. Appellant Satbir and Sarbati (son and mother inter-se) were convicted by the learned Trial Judge for the offences under Sections 304-B and 306 IPC and were sentenced as under:- “Both the accused to undergo rigorous imprisonment for seven Criminal Appeal No.3-SB of 1998 -2- **** years each under Section 304-B of Indian Penal Code and further both the accused are sentenced to undergo rigorous imprisonment for five years and for an offence punishable under Section 306 of Indian Penal Code. However, it is ordered that sentences awarded under both the Sections shall run concurrently.” Satbir and Sarbati filed Criminal Appeals (No. 3-SB of 1998 and 16-SB of 1998 respectively) to obtain the invalidation of the finding of indictment. As against it, Prem Chand (father of the deceased lady) filed Criminal Revision No. 106 of 1998 to obtain enhancement of the sentences awarded to the respondents/accused. The prosecution plea, upheld at the trial, was as under:- Meena Kumari was elder of two daughters born to PW-6 Prem Chand who also had male progeny consisting of four sons. Marriage of Meena Kumari with the appellant Satbir was solemnised on 1.7.1994. Prem Chand spent quite a lot on the marriage and also gave sufficient dowry in marriage. Father of the appellant Satbir (Sadhu Ram) was already dead by that time. On her first customary visit to her natal house, she stayed over for a period of one month before returning to the matrimonial house in the company of the appellant Satbir who came over to fetch her. Inder Parkash (PW-6), a son of Prem Chand and brother of Meena Kumari, went over to house of the appellant on the occasion of Raksha Bandhan. It was in the course of that visit that Meena Kumari brought to his notice that she was being tortured by the two appellants as they were not satisfied with the adequacy of dowry brought by her. She further informed her brother that appellants used to raise a demand for a scooter. She further told him that the appellants used to tease her on an allegation of being barren. Back home, Inder Parkash when brought these Criminal Appeal No.3-SB of 1998 -3- **** facts to the notice of his father, who deputed his other son Jagminder to fetch Meena Kumari from her matrimonial house and he complied. On reaching her natal house, Meena Kumari reiterated those facts before her father. She also informed him that the appellants used to beat her up on the above two counts. After few days thereof, a Panchayat (consisting of a number of persons including two indicated relations of appellants) came over to have Meena Kumari restored to the matrimonial house. Prem Chand brought facts to their notice. He initially refused to send Meena along to her matrimonial house but, on the assurance of members of Biradari panchayat, he yielded. In pursuance of the assurance aforementioned, the three members thereof ( Roop Chand, Jogi Ram and Jai Bhagwan) also got Meena Kumari examined from a Doctor at Panipat before she was taken to her matrimonial house. About one month prior to her death, Meena Kumari visited her natal house in the company of her mother-in- law i.e. appellant Sarbati. In the year 1995, Suresh son of Prem Chand went over to the house of the appellants to fetch Meena Kumari on the occasion of 'Teej'. However, he returned without fetching her because Meena Kumari told her that he should instead send her mother along for meeting her. Prem Chand decided that his wife would go over only after 'Teej' festival because she was to visit in-laws of her two other married children, a son and a daughter, on that festival. On 31.7.1995, at about 4/4.30 P.M., some one from village Ballah informed Prem Chand that his daughter Meena Kumari was seriously ill and was hospitalised in a hospital at Assandh and that they were required to be available over there. On getting the information, Prem Chand (along with his son Inder Parkash and wife Bhulli Devi) started for Assandh on a Motor-cycle. They initially went over to Safidon from where Criminal Appeal No.3-SB of 1998 -4- **** Ram Dhari, brother-in-law of Prem Chand and his son Ram Kumar, also joined them on an independent motor-cycle. When they reached the hospital at Assandh, they were informed that Meena Kumari had already succumbed to the burn injuries. The prosecution plea, at the trial, was testified by PW-1 Ranbir Singh, PW-2 Ram Chander, PW-3 Dr. Wazir Singh, PW-4 Rajinder Kumar, PW-5 Dr. Meeta Gupta, PW-6 Prem Chand, PW-7 Inder Parkash, PW-8 HC Naresh Chand, PW-9 Prem Kumar, PW-10 Suresh Kumar and PW-11 ASI Baljit Singh. PW-1 Constable Ranbir Singh, PW-2 Constable Ram Chander and PW-8 Constable HC Naresh Kumar tendered their affidavits Ex. PA, Ex. PB and Ex. PL respectively into evidence. PW-3 Dr. Wazir Singh had conducted the post-mortem examination on the dead body of Meena Kumari and found as under:- “There were extensive superficial to deep burns all over the body with singing of scalp hairs, eye brows and at parts skin was also blackened. Skin at places was peeled off. Pubic hairs were also singed. Line of redness and vasication were present. Percentage of burns was about 85%. In his opinion, death had occurred “due to shock as a result of extensive burns which were anti-mortem in nature and sufficient to cause death in ordinate course of nature.” PW-4 Rajinder Kumar, a photographer running the business in the name and style of Apsara Studio, Matlauda, proved photographs Ex. P1 to Ex. P4 and their negatives Ex. P5 to Ex. P8. He had taken those photographs on 1.8.1995 by visiting the house of Prem Chand complainant at Matlauda. PW-5 Dr. Mita Gupta had conducted ultrasound examination Criminal Appeal No.3-SB of 1998 -5- **** of Meena Kumari on 22.9.1994. She testified that, as per her report, uterus and ovary was normal structure wise and no pathology was seen in poutch of douglas. PW-6 Prem Chand and PW-7 Inder Parkash are father and brother respectively of the deceased lady. PW-9 Constable Prem Kumar, holder of a Diploma of Draftsman, visited the spot on 13.10.1995 and had prepared site plan Ex. PM on the pointing of Ashok Kumar. PW-10 Suresh Kumar is also a brother of Meena Kumari. PW-11 is ASI Baljit Singh who, on receipt of ruqqa Ex. PE from CHC Assandh, had gone to CHC and filed a plea before the Medical Officer to have the opinion about whether Meena Kumari was in a fit condition to make a statement. The Doctor opined that Meena Kumari was not in a fit condition to make a statement. On receipt of Ex. PF, another ruqqa about the death of Meena Kumari, he went over there and met the members of parental family of Meena Kumari including her father and two brothers as well as the maternal uncle and sister-in-law, who turned up at about 6/6.15 PM. He forwarded statement Ex. PJ, made by Tek Chand, for the registration of the FIR. He completed the inquest proceedings, recorded the statements under Section 161 Cr.P.C.of members of parental family of the petitioner and got the post-mortem examination conducted on the dead body of the Meena Kumari. Ex. PR is the FSL report. The appellants denied the prosecution allegations and alleged false implication in the case. DW-1 Dr. M.K.Rana, then posted as Medical Officer in CHC, Assandh, made a record based statement to the effect that, as per OPD register for the period from 4.7.1995 to 10.7.1995, entry at Serial No. 46 in Criminal Appeal No.3-SB of 1998 -6- **** the OPD Register pertains to Satbir son of Sadhu Ram who was suffering from diarrhea. It is apparent from the testimony that appellant Satbir raised a plea of alibi. DW-2 Roop Chand, DW-3 Khurshid Ahmed and DW-4 Sat Pal were examined in defence evidence. Learned Trial court accepted the validity of the prosecution presentation, negatived the plea of innocence raised on behalf of the appellants and proceeded to indict the appellants. Learned counsel for the appellants/accused argues that the learned Trial Magistrate did not appropriately appreciate the evidence inasmuch as the contents of Ex. D1 and Ex. D2 go a long way to prove that deceased had a normal and happy relationship with her mother-in-law and she never ever gave out that she was being subjected to any dowry- related harassment. It is also argued that deceased died just because a can containing kerosene oil, kept near the place where the deceased was working got spilled and caught fire. It is argued that Virender, a brother of appellant Satbir, had raised an alarm which attracted few people from the vicinity to the spot. Insofar as the letters Ex. D1 and Ex. D2 are concerned, those are not supportive of the plea advocated on behalf of the appellants. Ex. D1 purports to have been addressed by Prem Chand to the appellant Satbir c/o named conductor. It was a routine letter dated 29.6.1995 addressed by the father of a married daughter to his son-in-law and his family. It could not be expected that he would make a grievance (of the torture being caused to his daughter) in that letter. Insofar as Ex.D2 is concerned, it purports to be a letter dated 10.5.1995 addressed by Prem Chand only to the appellant Satbir. In the course thereof, he made a categorical averment to the effect that he had not received even a single Criminal Appeal No.3-SB of 1998 -7- **** letter from appellant Satbir. He requested the addressee to atleast drop a letter about the welfare in the family. He also made a grievance of the fact that he (Prem Chand) had been repeatedly to the house of the addressee, but the latter had not addressed even a single letter indicating welfare in the family. Prem Chand also averred, in the course thereof, that a named female relation had been to his house since 8.5.1995 and she is inclined to meet Meena Kumari and Satbir. Prem Chand, in the course of that letter, implored appellant Satbir to come over, along with Meena Kumari, to visit that female relation. A persual of that letter leaves no manner of doubt that the relationship between Meena Kumari and her in laws in general and appellant Satbir and his in-laws in particular was far from easy. It may be noticed that, in the normal course of things, father of a married daughter would not like to make a grievance of such small things. A grievance would be made only when it is found that there is persistent default on the part of in-laws of the married girl. This is what precisely appears to have been done by Prem Chand in the course of letter Ex. D2 which he addressed to appellant Satbir. It is, thus, evident that the present is a case in which not only that the letters Ex. D1 Ex. D2 are not supportive of appellant's plea of innocence, those, infact, indicate the contrary. Insofar as Virender Singh, brother of appellant Satbir is concerned, he was not examined at the trial. As per the presentation made on behalf of the appellants themselves, it was Virender only who was present at the house at the time the deceased caught fire. He was, thus, the best circumstanced to indicate the circumstances touching the adjudication of the controversy before this court. Further, he was the best circumstanced to indicate who exactly had been attracted to the spot from the vicinity. His non-examination raises doubts about the bonafides of the Criminal Appeal No.3-SB of 1998 -8- **** prosecution plea. Appellant Sarbati does not allege that she is a working lady. She was, thus, presumed to be at home only at the time the impugned occurrence had taken place. Her plea, in the course of the statement under Section 313 Cr.P.C., to the effect that she was away to the house of Sheena Black-smith at the relevant point of time is not buttressed by the examination of Black-smith aforementioned. The plea of alibi raised by appellant Satbir is also not substantiated on record. It is pertinent to notice that it is in the course of the cross-examination of none else or other than DW-1 Dr. M.K.Rana himself that the OPD register does not indicate the time at which Satbir Singh had been examined by him. He further testified that even the prescription slip does not indicate the fact. He did, however, clarify that the OPD timings during that part of the year were from 8.00 A.M. to 12.30 Noon. It is also in his statement that a named employee posted at the hospital had accompanied the appellant Satbir when he came for examination in the OPD. The impugned occurrence had taken place on 31.7.1995 during day time. This fact stands recorded in the inquest report. However, it is in the statement of Prem Chand, which he gave to the Investigating Officer at the time of inquest report, that he received message about the hospitalisation of Meena Kumari at about 4/4.30 P.M. All these facts do not enable the appellant Satbir to successfully raise a plea of alibi. It may be noticed in the context that, on his own showing, appellant Satbir is a conductor in the employment of Haryana Roadways. It was for him to indicate whether the relevant day was a holiday or off day for him or otherwise or whether it was a working day. Though the essential onus to prove the charge is upon the prosecution, it cannot be denied that the facts forming foundation of a plea of alibi were within the exclusive knowledge of the accused raising it and, Criminal Appeal No.3-SB of 1998 -9- **** that being so, he is best circumstanced to prove it to obtain exoneration from liability. In the absence of any documented evidence from his employer, the only inference that can be drawn is that the plea of alibi raised is false. Insofar as DW-2 Roop Singh is concerned, he is maternal uncle of appellant Satbir. He denied that deceased Meena Kumari had ever been subjected to dowry-related torture. He also denied that he ever accompanied the Biradari Panchayat to village Matlauda. The appellants are residents of village Ballah. There is want of evidence to prove the distance between those two villages. The testimony of this witness does not help the appellants in advancing their plea for exoneration from liability. DW-3 Khurshid Ahmed is a black-smith by profession. It is in his testimony that he had been deputed by the appellant Satbir to go to the house of latter's in-laws to furnish information that Meena Kumari had caught fire. It is further in his testimony that he travelled by a Van owned by one Rajbir son of Gopi resident of Ballah. His testimony has to be ruled out of consideration because it was nowhere suggested to Prem Chand that information with regard to hospitalisation of Meena Kumari had been forwarded to him by the appellants through Khurshid Ahmed aforementioned. Insofar as the DW-4 Satpal is concerned, he stated that he was standing in the gali when he heard the shouts raised by Virender that a fire had erupted in his house. He reached there and extinguished the fire. It is in his testimony that appellants Satbir and Sarbati were not available at the house and that at that time, Mst. Sarbati had gone to the house of Black-smith. In the course of cross-examination, he explained that he returned from the fields at about 11.00 A.M.and that he was resting when he heard the raula raised by Virender. He further explained that death of Criminal Appeal No.3-SB of 1998 -10- **** Majid Black-smith, brother of Khurshid Ahmend, had taken place on that date. As he was living in the vicinity, he had accompanied the dead body for cremation. It is further in his testimony that women folk of the house hold were otherwise available at their respective houses. It is also in his testimony that Binder Mahajan had also come over when this witness was in the process of extinguishing fire. In explicably enough, neither Virender (brother of Satbir) nor Binder Mahajan were examined at the trial. None of the women folk, who were available in their houses were cited as witnesses or examined at the trial. The testimony of DW-4 Satpal in the attempt to explain the non-availability of men folk, is apparently false in view of the fact that PW-3 Khurshid Ahmed did not at all own it that his brother had died on that day. There is no reason why he would not have owned it and why he only could be deputed by the appellant to go over to the village of parental family of deceased Meena Kumari to inform them about her hospitalisation. Apart therefrom Sheena black-smith was also not examined at the trial to own up the plea taken up by the appellant Sarbati that she was visiting that black smith only at the point of time deceased Meena Kumari caught fire. It is, thus, apparent that the plea of alibi raised by the appellants is forged and shall stand negatived. It is in evidence that the marriage between the deceased Meena Kumari and appellant had taken place on 1.7.1994 and she died on 31.7.1995 i.e. little more than one year of the marriage. Apart therefrom, deceased and the appellants were only two members of house hold. They have thoroughly failed to prove their plea of alibi. If there was an iota of truth in that plea, they could have in their own discretion opted to enter the witness box. That would have enabled the prosecution to test their testimony on the touchstone of cross-examination. The prosecution Criminal Appeal No.3-SB of 1998 -11- **** evidence is clear, categorical and clinching. Apart therefrom, it is quite adequate to nail the appellants on the charge for which they stand convicted. In the light of the fore-going discussion, the appeals filed by Satbir and Mst. Sarbati are held to be denuded of merit and are ordered to be dismissed. Insofar as the plea filed by Prem Chand for enhancement of sentence is concerned, that also deserves to be dismissed. Appellant Sarbati was aged 50 years at the time of trial which concluded in the year 1997. She must presently be in her mid sixties. The appellants were sentenced to undergo RI for a period of seven years for the offence under Section 304-B IPC and undergo RI for a period of five years for the offence under Section 306 IPC. In the circumstances of the case, this Court does not find it to be a fit case for enhancement of the sentence. The plea of enhancement shall stand negatived. November 06, 2008 (S. D. ANAND) Pka JUDGE