IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 184-DB of 2001 DATE OF DECISION : 20.07.2010 Mohinder Singh and others .... APPELLANTS Versus State of Haryana ..... RESPONDENT Crl. Revn. No. 1568 of 2001 DATE OF DECISION : 20.07.2010 Tara Chand .... PETITIONER Versus Mohinder Singh and others ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE MOHINDER PAL Present: Mr. K.D.S. Hooda, Advocate, for the appellants. (in Crl. A. No. 184-DB of 2001) None for the petitioner. (in Crl. Revn. No. 1568 of 2001) Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeal No. 184-DB of Crl. A. No. 184-DB of 2001 -2- 2001, filed by accused Mohinder Singh, Shamsher Singh and Rajo against their conviction and sentence; and Criminal Revision No. 1568 of 2001, filed by the complainant Tara Chand, for imposing fine under Section 357 (3) of the Code of Criminal Procedure, to be paid as compensation. 2. In the present case, appellants Mohinder Singh, Shamsher Singh and Rajo, who are the husband, elder brother-in-law (Jeth) and mother-in-law of deceased Kamlesh, were tried by the court of Additional Sessions Judge, Panipat, for committing the offence of dowry death. Vide judgment dated 26.2.2001, all the appellants were convicted under Section 304-B of the Indian Penal Code and vide order dated 27.2.2001, they were sentenced to undergo imprisonment for life. Against the said judgment and order, the appellants have filed the instant appeal, whereas the petitioner- complainant has filed the revision petition. 3. The brief facts of the case are that Kamlesh (deceased) was married with appellant No.1 Mohinder Singh on 20.4.1998. At the time of marriage, she was about 19 years old. After the marriage, the couple started living at village Raja Kheri, District Panipat. As per the prosecution version, within seven months of the marriage, on the intervening night of 16/17.11.1998, Kamlesh died an un-natural death, due to hanging, in her matrimonial home. 4. On 17.11.1998 at 12.15 PM, her brother Tara Chand (PW.5) submitted a written complaint (Ex.PA/1) to the In-charge, Police Post Killa, Police Station City Panipat. In the said complaint, it was stated by him that Crl. A. No. 184-DB of 2001 -3- his sister Kamlesh was married with appellant No.1 Mohinder Singh on 20.4.1998. At the time of marriage, he had given dowry articles according to his capacity. But, her mother-in-law Rajo, brother-in-law Shamsher Singh and husband Mohinder Singh were not satisfied with the dowry, and they started harassing and beating her on account of demand of more dowry, like Scooter, Colour Television and Fridge. Thereupon, he (complainant) gave Rs. 3,000/- to Shamsher Singh in the presence of Mohinder Singh, but despite that they did not mend their ways and continued to harass his sister. On 17.11.1998, he came to know that during the last night, in connivance with each other, the accused have killed his sister due to non-fulfilment of their demand of dowry. On the basis of the said statement, formal FIR (Ex.PA) was registered against all the three accused. The special report was sent to the Ilaqa Magistrate, which was received by the Chief Judicial Magistrate, Panipat on the same day at 2.45 PM. 5. On the same day i.e. on 17.11.1998, the police prepared rough site plan (Ex.PL) of the place of occurrence, the inquest report (Ex.PE/1) of the deceased and sent the dead body to Civil Hospital, Panipat, for conducting post mortem examination. 6. On 18.11.1998, Dr. P.K. Paliwal (PW.3) conducted autopsy of deceased Kamlesh. He found a faint ligature mark 3 cm below the chin going obliquely backwards, 2.5 cm in width in front and 1.5 cm below the mastoid on right side and 2 cm below the mastoid on left side. It was 10 cm below the occipital protuberance on the back. There was a gap of 0.5 cm in Crl. A. No. 184-DB of 2001 -4- diameter over left side of the neck. On section, it was dry, hard and parchment like. Walls, ribs and cartilages were found normal. Pleura was healthy. Larynx and Trachea were normal and congested. Hyoid bone was intact. Lungs were healthy and congested. Right side of heart was full of blood and its left side was empty. The small intestine contained small amount of digested food material. The viscera was sent for chemical analysis and the opinion with regard to cause of death was deferred to await the report of the Chemical Examiner. After receiving the report of the Assistant Chemical Examiner (Ex.PF), the doctor opined that the cause of death in the present case was ante mortem hanging. 7. During investigation, on 20.11.1998, appellants Mohinder Singh and Shamsher Singh were arrested. Thereafter, on 29.11.1998, appellant Rajo was arrested from her house and the dowry articles were taken into possession vide memo Ex.PJ, which was attested by complainant Tara Chand. Appellant Rajo had also produced a cream coloured Chunni, which was stated to have been used for hanging by Kamlesh, which was taken into possession vide memo Ex.PK. 8. After completion of investigation, the challan was filed against all the accused and they were charge sheeted for the offence under Section 304-B IPC, to which they did not plead guilty and claimed trial. 9. In support of its case, the prosecution examined seven witnesses. PW.1 SI Raghbir Singh, PW.2 HC Ramesh Kumar and PW.4 C Jagbir Singh are the formal witnesses. Crl. A. No. 184-DB of 2001 -5- 10. PW.3 Dr. P.K. Paliwal, who conducted the post-mortem on the dead body of deceased Kamlesh, proved the Post Mortem Report (Ex.PD) of the deceased. 11. PW.5 Tara Chand, brother of the deceased, is the complainant in this case. He has fully supported the case of the prosecution. 12. PW.6 Suraj Bhan is the husband of the cousin sister of complainant Tara Chand. He has stated that he had attended the marriage of Kamlesh with Mohinder Singh and in the marriage, sufficient dowry was given by the complainant. He further stated that 7-8 days prior to her death, he visited the house of Tara Chand, where Kamlesh met and told him that her husband and other family members had been giving beatings to her for bringing more dowry, like colour T.V., motor cycle and more money. He further stated that on the next day of the death of Kamlesh, Tara Chand had informed him about her death. He further stated that the complaint (Ex.PA/1) was written by him at the instance of complainant Tara Chand. 13. PW.7 Partap Singh ASI is the Investigating Officer of the case. 14. In their statements under Section 313 Cr.P.C., the appellants denied all the allegations appearing against them in the prosecution evidence. They pleaded innocence. They stated that they never harassed Kamlesh for want of dowry or for any other reason, whatsoever. They never demanded T.V., Scooter, Fridge etc. They further stated that Mohinder Singh (appellant No.1) has got three brothers. His mother Rajo (appellant Crl. A. No. 184-DB of 2001 -6- No.3) and younger brother Ranbir were residing with his eldest brother Rajbir and his family members, separately from him. Mohinder Singh (appellant No.1) along with his wife Kamlesh was residing in the first floor of the house in two rooms exclusively, whereas his brother Shamsher Singh (appellant No.2) and his wife were living separately on the ground floor of the house. It was further stated that the deceased belonged Karnal city. She did not want to live with Mohinder Singh in the village, as there was lot of difference in living standard. About 15 days prior to the occurrence, she had left the matrimonial home and went to her brothers house at Karnal by stating that she will not live with Mohinder Singh at village Raja Kheri, where there is even no provision of lavatory in the house of Mohinder Singh. On 17.11.1998, Mohinder Singh had brought her back to the village and on the same day, in the evening, at about 7.00/8.00 p.m., she committed suicide by hanging herself in the room of his house, while he was away for a short while. He informed this fact to Sewa Singh, the Ex-Sarpanch of the village, and then to the police as well as to the parents and relations of the deceased. 15. In defence, the appellants examined DW.1 Sewa Singh, the Ex- Sarpanch of the village. He stated that Mohinder Singh (appellant No.1) along with the deceased used to reside separately on the upper floor of the house, whereas Shamsher Singh (appellant No.2) was residing on the ground floor. Rajo (appellant No.3) resides separately with her elder son Rajbir in a separate house. He further stated that the appellants never Crl. A. No. 184-DB of 2001 -7- harassed the deceased for bringing less dowry. Actually, the deceased did not want to live in the village. She had arrived in the village with Mohinder Singh on the same day, when she committed suicide. 16. The trial court, after taking into consideration the evidence on record and keeping in view the fact that the deceased died an un-natural death within seven months of her marriage, convicted and sentenced the appellants, as indicated above. Hence, this appeal and the revision petition. 17. We have heard the arguments of learned counsel for the parties and have gone through the trial court record. 18. Learned counsel for the appellants argued that in the instant case, the prosecution has miserably failed to establish that soon before her death, deceased Kamlesh was subjected to harassment by the accused in connection with any demand of dowry. He argued that the allegations levelled by the brother of the deceased are not only vague and general, but are based on hear-say. At no point of time, any demand for dowry articles, like colour T.V., Scooter and Fridge, was made from him by any of the appellants. According to the learned counsel, the allegation of payment of Rs. 3,000/- by the complainant to Shamsher Singh in the presence of Mohinder Singh is totally baseless and concocted. Actually, the deceased has committed suicide not on account of any harassment caused to her, but on account of the fact that she was not happy to live in the village, where the proper facilities, like lavatory etc., were not available. She was adamant not to come to village and join the matrimonial home. That is why, in the Crl. A. No. 184-DB of 2001 -8- evening of the same day, when she came from her parental house, she committed suicide. According to the learned counsel, the allegations of harassment on account of demand of dowry articles, like colour T.V., Scooter and Fridge etc., are concocted and the bald complaint (Ex.PA/1), submitted by the brother of the deceased, is not reliable, as the same was concocted at the instance of PW.6 Suraj Bhan, who happened to be a Head Constable in the Police Department. Learned counsel further argued that the involvement of appellants Shamsher Singh and Rajo, in the alleged crime, who are living separately, has not been established at all. They were having no reason to raise demand of colour T.V., Scooter or Fridge, as these articles were not going to give any benefit to them, because they were living separately. Learned counsel submits that the factum of appellants Shamsher Singh and Rajo living separately has also been acknowledged by the Investigating Officer in his statement, while appearing in the court as PW.7. Therefore, they have been falsely involved with an oblique motive with intention to implicate all the family members in the dowry death case. In the last, learned counsel for the appellants argued that in the present case, the trial court was not justified to award life sentence to the appellants, as in no circumstance, the instant case can be said to be rarest of rare case, which entails the life sentence to the accused of dowry death. 19. On the other hand, learned Additional Advocate General, Haryana, supported the judgment of conviction and the order of sentence, passed by the trial court and submitted that the appellants have been rightly Crl. A. No. 184-DB of 2001 -9- convicted and sentenced, on the basis of the evidence, available on the record. 20. Undisputedly, in the present case, Kamlesh died an un-natural death within seven months of her marriage. On the intervening night of 16/17.11.1998, she committed suicide by hanging herself in her matrimonial home. On 18.11.1998, Dr. P.K. Paliwal (PW.3) conducted autopsy of the deceased and he opined that the cause of her death was ante-mortem hanging. Therefore, from the evidence led by the prosecution, two ingredients of the dowry death have been established. Firstly, that the death of Kamlesh had occurred within seven years of her marriage and secondly, that the said death had occurred otherwise than in normal circumstances. 21. Now, the question arising for consideration is as to whether soon before her death she was subjected to cruelty and harassment by the appellants in connection with demand of dowry. If the prosecution establishes this ingredient, then it will be presumed that the appellants have committed the offence of dowry death. In order to prove this third ingredient, the prosecution has examined PW.5 Tara Chand and PW.6 Suraj Bhan. On a careful scrutiny of the initial complaint (Ex.PA/1) made by PW.5 Tara Chand, on the basis of which the formal FIR (Ex.PA) was registered, as well as the testimonies of PW.5 Tara Chand and PW.6 Suraj Bhan, made in the court, we find that the material allegations with regard to harassment as well as the maltreatment of the deceased have been established only qua appellant No.1 Mohinder Singh (husband). The Crl. A. No. 184-DB of 2001 -10- allegations of harassment and demand of dowry levelled against appellant No.2 Shamsher Singh (elder brother-in-law) and appellant No.3 Rajo (mother-in-law) are vague and general in nature. 22. Perusal of the initial complaint (Ex.PA/1), which was prepared by PW.6 Suraj Bhan, (a Head Constable in the Police Department) reveals that Kamlesh (deceased) used to tell the complainant that her husband, mother-in-law and brother-in-law harass and beat her on account of demand of dowry, like Scooter, Colour Television and Fridge. It was further stated that an amount of Rs. 3,000/- was paid by the complainant to Shamsher Singh (appellant No.2) in the presence of Mohinder Singh (appellant No.1) to fulfill the said demand. However, no date was mentioned, on which the said amount was paid. In the complaint, it was also not stated that on which date, the demand of dowry was made. When the complainant appeared in the court as PW.5, he stated that 4-5 days prior to the occurrence, Kamlesh (deceased) visited his house and told him that her in-laws were harassing her for bringing more dowry. He also stated that 7-8 days prior to the occurrence, Mohinder Singh (husband) and Shamsher Singh (elder brother- in-law) visited his shop, where he gave them Rs. 3,000/- for purchasing Fridge etc. The said amount was given to Shamsher Singh. He further stated that 2-3 days after the day he gave the aforesaid money to Shamsher Singh, Mohinder Singh took Kamlesh to his village. In his cross-examination, he has admitted that Shamsher Singh is married and he had children and he lives on the ground floor of the same house. He has further admitted that Crl. A. No. 184-DB of 2001 -11- Rajbir (third brother of Mohinder Singh) was living separately in an adjoining house. However, he denied the suggestion that Rajo (mother-in law) was living with said Rajbir. PW.6 Suraj Bhan has stated that the deceased was being harassed by her in-laws for bringing more dowry, like motor-cycle, colour T.V etc. He stated that when 7-8 days prior to the occurrence, he visited the house of Tara Chand, where Kamlesh told him that her husband and other family members had been giving beatings to her for bringing more dowry, like colour T.V., motor-cycle and more money. When this witness was confronted with his statement (Ex.PE/1) made before the police, he admitted that he did not get recorded in that statement that 7-8 days prior to the occurrence, he went to the house of Tara Chand, where Kamlesh told him that her husband and other family members used to harass her for bringing more dowry. However, he got recorded in his statement that after marriage, Kamlesh told him about her harassment on account of not bringing colour T.V., scooter and Fridge. In his statement before the court, this witness stated about demand of motor-cycle and not of scooter, but when his attention was drawn towards this discrepancy at the instance of his counsel, he stated that he had said so by mistake. Regarding the payment of Rs. 3,000/- to Shamsher Singh, it is stated that the said payment was not made in his presence, but when he visited the house of Tara Chand, he told him about the said fact. 23. It has come in evidence that one or two days prior to the occurrence, Kamlesh (deceased) came to her matrimonial home from her Crl. A. No. 184-DB of 2001 -12- parental house and thereafter, she died an un-natural death. As per prosecution case, the main allegation against all the three accused was that they were harassing the deceased on account of demand of scooter, colour Television and Fridge. It has come in evidence that appellant No.2 Shamsher Singh (elder brother-in-law) along with children was residing separately on the ground floor of the house. He was having separate mess. So, by demanding the aforesaid articles, he was not going to be benefited. Even there was no reason for making payment of Rs. 3,000/- to him, because the said payment was made to purchase Fridge, which was meant for husband. It appears that said amount was paid to Mohinder Singh (husband). Similarly, it appears that appellant No.3 Rajo (mother-in-law) and her younger son Ranbir were residing with her eldest son Rajbir in a separate adjoining house. It has come in evidence that Kamlesh (deceased) along with her husband Mohinder Singh (appellant No.1) was residing on the upper floor of the house, and was having separate kitchen. From all these facts, it appears that appellants No.2 and 3, namely Shamsher Singh and Rajo had nothing to do with the alleged harassment on account of bringing more dowry, like scooter, colour Television and Fridge, as these articles were not going to benefit them. Shamsher Singh was already having a motor cycle. Thus, the possibility of levelling false allegations against them cannot be ruled out, as in the instant case, the complaint (Ex.PA/2) was drafted by PW.6 Suraj Bhan, who was employed as a Head Constable in the Police Department. It is well settled that for the fault of the husband, Crl. A. No. 184-DB of 2001 -13- all the family members and relations cannot be punished, particularly in a case, where the wife commits suicide. In such cases, a tendency has developed to implicate more members of a family, for the fault of the husband. The Hon'ble Supreme Court, in Kans Raj v. State of Punjab and others, AIR 2000 Supreme Court 2324, has cautioned that such kinds of involvement of all the family members and relations, particularly by levelling vague allegations against them should be discouraged. In the present case, in our opinion, the real accused is the husband, who harassed his wife on account of demand of more dowry, like scooter, colour T.V. and Fridge, and to whom an amount of Rs. 3,000/- was paid by the brother of his deceased wife. The harassment caused by the husband was to such an extent that within seven months of the marriage, the wife was forced to commit suicide in her matrimonial home. In our opinion, the allegations of alleged harassment caused by appellants No.2 and 3, namely Shamsher Singh and Rajo, are totally vague. Thus, the presumption under Section 113-B of the Indian Evidence Act, 1872, for committing the offence of dowry death, can be raised, only against appellant No.1 Shamsher Singh. He has miserably failed to rebut the presumption by leading cogent and sufficient evidence. The explanation given by the husband (appellant No.1) in his statement under Section 313 Cr.P.C., and by way of the defence evidence led by him, is not sufficient to rebut the presumption raised against him. His plea that his wife Kamlesh (deceased), who belonged Karnal city, did not want to live in the village, as there was lot of difference in living Crl. A. No. 184-DB of 2001 -14- standard, on the face of it, cannot be accepted, as if the deceased was not willing to live in the village, she would not have agreed for marriage with appellant No.1, who was admittedly residing in the village. Therefore, the plea taken by him cannot be accepted. Thus, in our opinion, the prosecution has fully proved all the ingredients of the dowry death against appellant No.1 Mohinder Singh (husband). Hence, his conviction under Section 304- B IPC is upheld. However, we are of the opinion that the prosecution has failed to establish the offence under Section 304-B IPC against appellants No.2 and 3 and their conviction for this offence is set aside. 24. Now, the question arising for consideration is : Whether the punishment of imprisonment for life awarded to appellant No.1 by the trial court is warranted in the instant case ? Section 304-B (2) of the IPC lays down that “Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” It has been held by the Hon'ble Supreme Court in Hem Chand v. State of Haryana, (1994) 6 Supreme Court Cases 727 that in every dowry death case, the extreme punishment of imprisonment for life should not be awarded. Since conviction under Section 304-B IPC is based upon presumption, therefore, awarding of extreme punishment of imprisonment for life should be used in rare cases and not in every case. In that case, the sentence of imprisonment for life awarded to the accused under Section 304-B IPC was reduced to 10 years rigorous imprisonment. The same view was reiterated by the Hon'ble Crl. A. No. 184-DB of 2001 -15- Supreme Court in G.V. Siddaramesh v. State of Karnataka, 2010 (1) RCR (Criminal) 949, where sentence of imprisonment for life awarded to the accused under Section 304-B IPC was reduced to 10 years rigorous imprisonment, on the aforesaid principle. In the instant case, the un-natural death of Kamlesh was due to hanging. Appellant No.1 Mohinder Singh, who is aged about 35 years, has been convicted for the offence of dowry death, on the basis of presumption raised under Section 304-B of the IPC read with Section 113-B of the Indian Evidence Act, 1872, as the prosecution has been able to establish all the ingredients of the offence of dowry death. Therefore, keeping in view the facts and circumstances of the case, we are of the view that the awarding of sentence of 10 years rigorous imprisonment to appellant No.1 would meet the ends of justice. Accordingly, while confirming his conviction under Section 304-B IPC, we reduce his sentence of imprisonment for life to 10 years rigorous imprisonment. 25. In view of the above, the appeal qua appellant No.1 Mohinder Singh is dismissed, subject to the aforesaid modification of his sentence. However, the appeal qua appellants No.2 and 3, namely Shamsher Singh and Rajo, is allowed and they are acquitted of the charges framed against them. The revision petition, preferred by complainant Tara Chand, stands dismissed. Since appellant No.1 Mohinder Singh is on bail, therefore, his bail bonds stand cancelled. He is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing Crl. A. No. 184-DB of 2001 -16- which the concerned authority shall proceed against him in accordance with law. (