Criminal Appeal No.414-SB of 2004. 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.414-SB of 2004. Date of Decision: March 30, 2010. Rajesh Kumar and another ... Appellants VERSUS State of Punjab ...Respondent 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: Ms. G.K. Mann, Advocate for the appellants. Mr. Vishal Munjal, Additional Advocate General, Punjab. --- MOHINDER PAL, J. This appeal has been filed by appellants Rajesh Kumar and Gurdial Atwal against the judgment of conviction dated 20.12.2003 and the sentence order dated 22.12.2003 passed by Criminal Appeal No.414-SB of 2004. 2 the learned Additional Sessions Judge , Kapurthala, vide which they were convicted under Section 304-B of the Indian Penal Code (hereinafter referred to as `the Code) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2,000/- each, in default whereof to undergo further rigorous imprisonment for a period of one month. Shakuntla Rani co-accused of the appellants, was found innocent by the trial Court and acquitted of the charge framed against her. The instant case was registered on the basis of statement (Exhibit P-A) dated 24.07.2002 made before the police by Tarsem Lal, father of Rajni Bala (deceased). He stated that Rajni Bala was married to appellant Rajesh Kumar in December, 2001. After her marriage, Rajni Bala started residing in her matrimonial house at Phagwara. The complainant stated that about one month before her death which took place on 24.07.2002, Rajni Bala(deceased) rang him up and stated that she be taken to his house. On receipt of this telephonic message, Tarsem Lal (complainant) came to the house of her daughter (Rajni Bala) and took her to Nawanshahar. After reaching Nawanshahar, Rajni Bala (deceased) had told the complainant (Tarsem Lal) that her husband, her mother-in-law and father-in-law were harassing her and asking her to bring a sum of Rs.20,000/- from her parents. After one week, Shakuntla Devi, mother-in-law, Gurdial Atwal, father-in-law of the deceased and their neighbours, came to the house of Tarsem Lal at Nawanshahar. Talks were held between them and the complainant agreed to pay them the demanded money of Criminal Appeal No.414-SB of 2004. 3 Rs.20,000/-. However, the complainant told them that arrangements of the amount would be made in a few days. Thereafter, Rajni Bala was sent along with them to Phagwara. The complainant paid the demanded sum of Rs.20,000/- to Gurdial Atwal-appellant at Nawanshahar after borrowing the same from his relations. On account of fulfillment of this demand, the accused again demanded a sum of Rs.40,000/- for purchasing a motorcycle on 21.7.2002. On 24.07.2002, the complainant received a telephonic message from Gurdial Atwal that his (complainant's) daughter had died. On receipt of this telephonic message, Tarsem lal along with his wife Rajni, son Naresh Kumar and other relations went to the house of the in-laws of Rajni Bala (deceased) at Phagwara. The dead body of Rajni Bala was found lying in the Verandah on the floor of the house of the accused. They found marks of tying something on the neck of Rajni Bala. It was stated by her in-laws that Rajni Bala had committed suicide. After recording the statement (Exhibit P.A) of complainant Tarsem Lal, Sub Inspector Mohan Singh along with the police officials and the complainant went to the house of Gurdial Atwal, accused in Mohalla Prem Pura, Phagwara, the place of occurrence. He prepared the inquest report on the dead body of Rajni Bala daughter of the complainant. The dead body was identified by Naresh Kumar and Raj Kumar. Thereafter, the dead body was handed over to Manjit Singh, Head Constable and Manjit Singh, Constable for getting the post mortem conducted. The place of the occurrence was inspected. The head-cover (Chunni) EX.PI was lifted from the spot, which was converted into a parcel and taken into possession. The Site Plan was Criminal Appeal No.414-SB of 2004. 4 prepared. The accused were produced by Vicky, President, Balmiki Mohalla, Phagwara before Mohan Singh, SI and were arrested. Dr. Inderjit Singh, Medical Officer, Civil Hospital, Phagwara, in the company of Dr. Gurdit Singh and Dr. J.K. Bains had conducted the post mortem examination on 25.07.2002 at 10.10 a.m on the dead body of Rajni Bala and observed a brown coloured dry parchment like ligature mark on the upper part of the neck between chin and thyroid cartilage (Larynx), of the deceased extending from left side near the mastoid region going down and anteriorly below the angle of left mandible in front above the thyroid cartilage and going towards right side below angle of mandible and upto right mastoid behind the ear, measuring 28 cm long. The face was purple and dry saliva on left angle of mouth was seen. The tongue was swollen, blue and drawn in. In the opinion of the Doctor, the cause of death in this case was asphyxia due to hanging which was anti-mortem in nature and was sufficient to cause death in the ordinary course of nature. After completion of investigation and due formalities, challan against the accused was presented in the Court. The accused were earlier charged under Section 302 read with Section 34 of the Code and later on alternative charge under Section 304-B of the Code was framed against the accused. They did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined Tarsem Lal (P.W.1), Rajinder Kumar, Inspector (P.W.2), Dr.Inderjit Singh, Medical Officer, Civil Hospital, Phagwara, (P.W.3), Raj Kumar (P.W.4), Head Criminal Appeal No.414-SB of 2004. 5 Constable Manjit Singh (P.W.5), Rajwinder Singh (P.W.6) and Sub Inspector Mohan Singh (P.W.7). In their statements recorded under Section 313 of the Code of Criminal Procedure, accused Rajesh Kumar (husband of the deceased) and Gurdial Atwal (father in law of the deceased) denied the prosecution allegations and pleaded innocence. Rajesh Kumar in his statement recorded under Section 313 of the Code of Criminal Procedure stated as under:- “ I am innocent. I have been falsely implicated in this case. Tarsem Lal father of deceased Rajni Bala performed her marriage against her wishes. She used to go to the house of her father and we used to go to her father's house to take her back but she used to refused to accompany us as she wanted to contract marriage with somebody else. I, my father and mother never demanded any money from her nor beaten her on account of the demand of money. The story of giving Rs.20,000/- after the marriage to us by Tarsem Lal, father of Rajni Bala deceased is false and concocted one. Raj Kumar PW being the son of sister-in-law of Tarsem Lal deposed falsely at the instance of Tarsem Lal. Rajni Bala deceased used to write a diary and the cause Criminal Appeal No.414-SB of 2004. 6 of death was written in that diary. That diary has been destroyed by the police in connivance with Tarsem Lal because the contents of the diary were against the prosecution case. Surinder Pal son of Som Nath resident of Rasta Mohalla, Jalandhar was the go between the marriage of the deceased with me.” Accused-appellant Gurdial Atwal, in his statement recorded under Section 313 of the Code of Criminal Procedure stated as under:- '' I am innocent. I have been falsely implicated in this case. I never demanded any dowry from the deceased Rajni Bala and her father after the marriage. I never harassed the deceased Rajni Bala on account of bringing more dowry. The story put forward by the prosecution that I received Rs. 20,000/- from Tarsem Lal is false one. As soon as I came to know about the death of Rajni Bala, I immediately informed the parents of the deceased Rajni Bala through telephone. No evidence, oral or documentary, was led by the accused in their defence. Criminal Appeal No.414-SB of 2004. 7 After scrutinizing the evidence led on record by the parties, the learned trial Judge convicted and sentenced the appellants as afore-mentioned. I have heard Ms. G.K. Mann, Advocate, learned counsel for the appellants and Mr. Vishal Munjal, Additional Advocate General, Punjab and have gone through the records of the case. The question arises as to whether the accused- appellants are liable under Sections 304-B of the Code for which offence they have 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, Criminal Appeal No.414-SB of 2004. 8 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 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, it is not disputed that the marriage of Rajni Bala (deceased) with appellant Rajesh Kumar had taken place on 10.12.2001. This fact is admitted by accused- appellant Rajesh Kumar in his statement recorded under Section 313 of the Code of Criminal Procedure. Death of Rajni Bala took place on 24.7.2002. Rajni Bala had died within seven years of her marriage. Dr. Inderjit Singh (P.W.3), who, along with Dr. Gurdit Singh and Dr. J.K. Bains had conducted autopsy on the dead body of Rajni Bala had observed a brown coloured dry parchment like ligature mark on the upper part of the neck between chin and thyroid cartilage (Larynx), extending from left side near the mastoid region going down and anteriorly below the angle of left mandible in front above the thyroid cartilage and going towards right side below angle of mandible and upto right mastoid behind the ear, measuring 28 cm long. The face was purple and dry saliva on left angle of mouth was seen. The tongue was swollen, blue and drawn in. In the opinion of the Doctor, the cause of death in this case was asphyxia due to Criminal Appeal No.414-SB of 2004. 9 hanging which was anti-mortem in nature and was sufficient to cause death in the ordinary course of nature. The statement of Dr.Inderjit Singh (P.W.3), whereby he opined that the cause of death of Rajni Bala was asphyxia due to hanging, which was ante mortem in nature and was sufficient to cause death in the ordinary course of nature, has remained unchallenged on record. Dr.Inderjit Singh (P.W.3) was not even cross-examined on any point by the defence counsel before the trial Court in spite of an opportunity having been given in this regard. On account of mal-treatment of Rajni Bala at the hands of the accused-appellants, she ended her life. However, the allegation that soon before her death Rajni Bala was subjected to cruelty or harassment by the appellants in connection with any demand of dowry, is not proved. P.W Tarsem Lal stated that a demand of Rs.40,000/- was made by the accused on 21.07.2002 whereas Rajni Bala died on 24.07.2002. It appears that the complainant has come up with the statement of demand of Rs.40,000/- by the accused on 21.07.2002 i.e soon before the death of Rajni Bala, just to bring the offence within the purview of the stringent provisions of Section 304-B of the Code. Once I form this view, I have no hesitation in holding that the offence of “dowry death” had not been proved in this case. The accused are, thus, not guilty for the offence under Section 304-B of the Code. However, the facts and circumstances of the case, disclose that the appellants have committed the offence punishable under Section 306 of the Code. Criminal Appeal No.414-SB of 2004. 10 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.” Accused Rajesh Kumar, in his statement recorded under Section 313 of the Code of Criminal Procedure, inter alia, stated that Tarsem Lal, father of the deceased Rajni Bala, performed her marriage, against her wishes. She used to go to the house of her father frequently. He stated that he used to bring her back. She used to refuse to accompany him as she wanted to contract marriage with somebody else. In the grounds of appeal also, it has been mentioned as under:- “ 8. xx xx that this marriage was solemnized by her parents against her wishes. She wanted to marry someone else and whereas her father Tarsem Lal forcibly married her with the appellant No.1 and she was not happy with this marriage and therefore she committed suicide.” Criminal Appeal No.414-SB of 2004. 11 Complainant Tarsem Lal (P.W.1), father of Rajni Bala (deceased) in his cross-examination stated that the deceased used to come to his house off and on. The accused also used to come to his house and request him to send Rajni Bala along with them, but she refused to accompany them. However, Tarsem Lal (P.W.1) denied the suggestion that his daughter wanted to marry somebody else. Accused-appellant Rajesh Kumar, in his statement recorded under Section 313 of the Code of Criminal Procedure, has gone to the extent of levelling the allegation that Rajni Bala wanted to contract marriage with somebody else and that she used to refuse to accompany the accused whenever they went to her matrimonial house to bring her on account of the fact that she wanted to marry somebody else. Such like allegation by the husband that his wife wanted to marry someone else is very disgusting and intolerable by a woman. The deceased has to confront such like allegation repeatedly. The facts and circumstances, mentioned above, show that the deceased was subjected to harassment and she had to leave her matrimonial house time and again.The evidence on record suggests, in certain terms, that there was no harmony between the appellants and the deceased, which led the deceased to take the extreme step of committing suicide. In view of the above, the offence committed by the appellants would fall under Section 306 of the Code and not under Section 304-B of the Code, as has been held by the trial Court. Criminal Appeal No.414-SB of 2004. 12 The conviction of the appellants 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 appellants under Section 304-B of the Code are set aside and they are acquitted qua the said charge. However, the appellants are convicted under Section 306 of the Code. So far as the sentence to be awarded to the appellants under Section 306 of the Code is concerned, appellant Rajesh Kumar has undergone about four years' incarceration whereas appellant Gurdial Atwal has undergone imprisonment for about one year and ten months. Keeping in view the facts and circumstances of the case and the fact that Sword of Damocles has remained hanging over the heads of the accused-appellants for more than seven and a half years, I am of the considered opinion that it will be of no use to send the appellants to jail again at this stage and the ends of justice will be adequately met if appellants Rajesh Kumar and Gurdial Atwal, under Section 306 of Code, are sentenced to rigorous imprisonment for the period already undergone by them. I order accordingly. The sentence of fine of Rs.2000/- awarded to the appellants by the Trial Court and the default clause shall remain unaltered. This appeal stands disposed of accordingly. March, 30,2010. ( MOHINDER PAL ) GR JUDGE