CRIMINAL APPEAL NO. 131-DB OF 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: February 18, 2009 Parties Name Jagmer Singh ...APPELLANT. VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. R.N. Lohan, Advocate, for the appellant. Mr. S.S.Randhawa, Addl. A.G., Haryana, for the respondent in this appeal and appellant in Cr. Appeal No. 563-DBA of 2001 JASBIR SINGH, J. JUDGMENT By filing Criminal Appeal No. 131-DB of 2000, appellant Jagmer Singh has laid challenge to the judgment and order dated December 20, 1999, vide which he was convicted for commission of an offence under Section 304-B of the Indian Penal Code and was sentenced to undergo life imprisonment, while Bhundu and Anguri , co-accused of the appellant, were acquitted. State of Haryana has filed Criminal Appeal No. 563-DBA of 2001 to lay challenge to their acquittal. This order will dispose of both the appeals, mentioned above. For facility of dictating judgment, facts are being CRIMINAL APPEAL NO. 131-DB OF 2000 -2- mentioned in Criminal Appeal No. 131-DB of 2000. Marriage of the appellant with deceased Babli alias Savita was solemnised on December 9, 1997. It was allegation against the appellant that he in connivance with his father and mother, namely, Bhundu and Anguri respectively had caused dowry death of Babli by strangulating her in their house on September 17, 1998. Process of criminal law was set in motion on a statement made by Virender (PW6), brother of the deceased. FIR Ex. PK was recorded on a statement made by him at 11.35 AM on September 18, 1998. Case of the prosecution, as noticed by the trial in para No. 2 of its judgment, reads thus: “The prosecution case, as disclosed in the statement of Virender complainant made before the police, Ex. PJ, is that his sister Babli was married to Jagmer accused about 9-10 months prior to her death. Though sufficient dowry was given in the marriage yet the accused did not feel satisfied with the same and they had been beating Babli for having brought less dowry. They had been repeatedly telling her to go to her parents' place and bring fridge in dowry. She, accordingly, visited her parental house (in village Dhanana), several times, for the purpose. She had been telling her parents that either they should give fridge in dowry or else her husband, mother-in-law and father -in-law would kill her. But, due to their weak financial condition, her parents could not give fridge. About 6- 7 days prior to her death, she and Jagmer accused came to her parents' house. The latter told her parents that if fridge was not given, he would either leave or kill her. On this, Chhoti, Lala, CRIMINAL APPEAL NO. 131-DB OF 2000 -3- Krishna and Gulabo, who are Babli's mother. Chacha, Chachi and Bua respectively, advised Jagmer in the matter. The latter , however, persisted in the fulfillment of his demand for fridge in dowry. The said relatives of Babli , thereupon, told Jagmer that they would arrange money and give fridge to him within 5-6 days. On this, Babli and Jagmer returned to their house. While leaving, Babli told her parents that if fridge was not given, her husband, mother-in-law and father-in-law would kill her. On 17.9.1998, at 7 AM, Bhundu accused went to the house of the complainant and informed them that Babli was seriously ill and she had called them. Virender complainant, Chhoti, Krishna, Ram Phal and Gulabo, accordingly, reached village Bhirtana in a four wheeler and found that dead body of Babli was lying covered with a cloth, on a cot, in the house of the accused. A piece of rope was hanging in the hook of the roof of the house, while a noose made of rope was lying under the said cot. There was also a ligature mark of blue colour on the neck of Babli. On being enquired by the complainant and the other members of his family, the accused could not give any satisfactory reply about Babli's death. The enquiries made in the neighbourhood revealed that Babli had committed suicide as she was fed up from the harassment meted out to her by the accused on account of her having not brought fridge in dowry. Thereupon, Virender complainant reported the matter to the police vide Ex. PJ.” CRIMINAL APPEAL NO. 131-DB OF 2000 -4- After registering FIR against the appellant and his parents, the Investigating Officer went to the spot, prepared inquest report of the dead body and sent it for post -mortem examination, which was conducted by Dr. V.K. Satija (PW5). After post-mortem examination, the above said witness made the following observations regarding injuries on the dead body: “A ligature mark over the anterior aspect of neck starting from the left side of neck, 6 cm below the left ear lobule and extending upto right side of neck, 6.5 cm below the right ear lobule. The ligature mark was horizontally placed and was reddish brown in colour. Its margins were indurated and there were contused skin areas around the ligature. The ligature mark was deep seated. Blood stained froth was coming from both the nostrils. On opening the neck, it was found that there was echymosis of the area, subcutaneous tissue and underlying muscles especially sternocledomastoid vessels were contused and lacerated at places. There was fracture of thyroid cartilage and of hyoid bone. Except this injury there was no external mark of injury over the body.” Cause of death was declared asphyxia as a result of strangulation. The injury was found ante mortem in nature and was sufficient to cause death in ordinary course. During cross-examination, this witness has stated that it was a case of strangulation and not hanging. The Investigating Officer got prepared rough site plan of the place of occurrence and recorded statements of the witnesses. After completing other CRIMINAL APPEAL NO. 131-DB OF 2000 -5- formalities, final report was put in Court for trial. The appellant and his co-accused pleaded not guilty to the charge-sheet and claimed trial. The prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. Incriminating material was put to them. They denied the same, claimed innocence and false implication. They showed total ignorance as to in what manner death had occurred. However, they led no evidence in defence. The trial Court, on appraisal of evidence, convicted and sentenced the appellant. However, his co-accused were acquitted. Shri R.N. Lohan, counsel for the appellant, has vehemently contended that the trial Court was not justified in convicting and awarding sentence to the appellant. He, by making reference to the statements of PW6 brother of the deceased and Chhoto (PW4) argued that the witnesses have contradicted each other with regard to demand of dowry by the appellant and his co-accused. He further argued that deceased Babli was of tender age (18 years). She failed to adjust herself in the matrimonial house and out of frustration, she had committed suicide. He prayed that the appeal be allowed and the judgment under challenge be set aside. Prayer of counsel for the appellant has vehemently been opposed by Shri S.S. Randhawa, Additional Advocate General, Haryana, who has put in appearance on behalf of State of Haryana. He has supported case of the prosecution. He brought to our notice that demand of dowry, soon before death, was proved, on record by PW4 and PW6, i.e., mother and brother respectively of the deceased. Admittedly, death has occurred within seven years of marriage and it was un-natural. He prayed that the appeal CRIMINAL APPEAL NO. 131-DB OF 2000 -6- having no substance be dismissed. We are of the view that so far as conviction of the appellant is concerned, in view of evidence on record, it is not possible for us to interfere in the judgment under challenge. The trial Court has rightly segregated case of the appellant and his parents. It is an admitted fact that marriage was solemnised on December 9, 1997. Death had occurred on September 17, 1998, i.e., less than one year of the marriage. In view of evidence of Dr. V.K.Satija (PW5), who had conducted post-mortem examination on the dead body of Babli, it can be said that the death was un- natural. So far as demand of dowry is concerned, PW4 Chhoto and PW6 Virender have given vivid description as to when and on what dates demand was raised by the appellant to bring fridge etc. Last demand re: fridge was made 6/ 7 days prior to the fateful day. It has come on record that immediately after marriage, the appellant started harassing his wife on account of bringing less dowry. He was persistently compelling his wife to bring more goods/ articles from her parents. Evidence on record clearly establishes guilt of the appellant. In view of above, we are not inclined to interfere in his conviction. Faced with the situation, counsel for the appellant prayed that sentence awarded to the appellant is on the higher side. By making reference to the ratio of the judgment by Hon'ble Supreme Court in Hem Chand v. State of Haryana, 1994(3) Recent Criminal Reports 625, defence counsel prayed that punishment of life imprisonment for offence falling under Section 304-B IPC can be granted only in rarest of the rare cases. He further argued that facts of this case are such that it would not fall in that CRIMINAL APPEAL NO. 131-DB OF 2000 -7- category. The prayer is for reduction in sentence. Prayer made has been controverted by the State counsel. However, in view of ratio of judgment of the Hon'ble Supreme Court in Hem Chand's case (supra), we are inclined to accept argument raised by counsel for the appellant. Before the Hon'ble Supreme Court, it was also a case of death by strangulation for demand of dowry. Death had occurred within seven years of the marriage. There was no charge under Section 302 IPC against the accused named therein. Their Lordships of the Supreme Court observed that sentence of life imprisonment for offence under Section 304-B IPC can be awarded only in rarest of the rare cases and not in every case. In this case, the appellant is a young man. His marriage was solemnised at a very tender age. May be, both husband and wife could not adjust with each other, which resulted into the sad episode , in which appellant's wife had died. The facts of the case are such which may not invite life imprisonment for the appellant. So far as appeal filed by the State is concerned, it is necessary to mention that Bhundu, respondent No. 1, had died during pendency of the appeal. As such State appeal qua him stands abated. Regarding second respondent Anguri, we are not inclined to interfere in the verdict of acquittal granted to her by the trial Court. While acquitting both of them, it was observed as under: “Now, coming to the case of Bhundu and Anguri accused. With regard to them, it may be mentioned that not a single prosecution witness came forward to state that either of these two accused ever made dowry demand of any type from Babli deceased (or her parents) or had subjected her to cruelty or CRIMINAL APPEAL NO. 131-DB OF 2000 -8- harassment, in his presence. Even the mother (PW4) and brother (PW6) of Babli deceased did not state that these two accused had made any dowry demand from them, or, they (accused) had so done from Babli deceased in their (of PW4 and PW6) presence nor did they state that they ever saw these accused causing any harassment or cruelty to Babli deceased. That being the position, no presumption of dowry death under section 304-B IPC can be drawn against these two accused with regard to the death of Babli deceased.” We are of the opinion that the finding given by the trial Court is perfectly justified and is in consonance with the record of this case. In view of facts, mentioned above, we dismiss Criminal Appeal No. 563-DBA of 2001, filed by the State. However, Criminal Appeal No. 131-DB of 2000, filed by accused Jagmer Singh, is partly allowed. His conviction is upheld. However, his sentence is reduced to rigorous imprisonment for ten years. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE February 18, 2009. DKC