CRA No.913-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.913-SB of 2002 Date of Decision : 21.09.2010 Ved Parkash and others .......Appellants Versus State of Haryana .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. P K Gupta, Advocate, for the appellants. Mr. Kshitij Sharma, AAG, Haryana. **** JITENDRA CHAUHAN, J. 1. The present criminal appeal has been directed against the judgment dated 18.4.2002 (for short as ‘impugned judgment’) passed by the learned Sessions Judge, Yamunanagar at Jagadhri (for short as ‘trial Court’), convicting the appellants for the commission of offence under Section 304-B, 498-A read with Section 34 IPC and order of sentence dated 19.4.2002 whereby all the appellants have been awarded sentence to undergo rigorous imprisonment for a period of seven years each for the offence under Section 304B IPC and also to undergo rigorous imprisonment for a period of one year each for the offence under Section 498A read with Section 34 IPC. Both the sentences were ordered to run concurrently. CRA No.913-SB of 2002 -2- 2. The facts of the case in hand, as set up by the prosecution, are that the complainant-Satish Kumar son of Krishan Lal r/o Dappar Police Station, Lalru, District Patiala, got lodged FIR dated 25.9.2001 that he is employed in Telephone Department and married his daughter-Pooja aged about 20 years on 10.12.2000 to Sudhir Kumar s/o Ved Parkash (accused), according to Hindu rites and rituals. He gave sufficient dowry. At the time of marriage, accused was undergoing Laboratory training courses in the State of Himachal Pradesh whereas his daughter-Pooja was learning stitching work in Village Dappar itself. Just after two days of the marriage, she was left at his house by the accused and her father-in-law, Ved Parkash. On 27.7.2001, the complainant, Sudhir Kumar visited the house of the appellant and took his daughter, Pooja, the deceased, along on account of death of his son, Prince, some time back. He did not give cash or any other articles to his daughter at the time of marriage. The deceased, Pooja, and Sudhir Kumar, came to see his ailing wife, at that time, Pooja told the complainant and his wife, Sushma, that her husband, Sudhir Kumar, mother-in-law, Kamlesh Kumari, and father- in-law, Ved Parkash, had been harassing her for not bringing Rs.50,000/- in dowry. She also told them that her in-laws taunt her for bringing insufficient dowry. Her husband-Sudhir Kumar, gave her beatings twice on that count. The complainant and his wife made their son-in-law understand that they are not in a position to give so much amount in dowry on account of their poverty. However, complainant gave Rs.2,000/- to his son-in-law in the presence of his wife and also requested Sudhir Kumar to keep their daughter properly in the CRA No.913-SB of 2002 -3- matrimonial home. Complainant assured Sudhir Kumar that he will arrange some more amount and give it to him. Thereafter, on 22.09.2001 at about 9.30 a.m., his daughter and son-in-law left the complainant’s house and went to Village Darpur. On 24.09.201 at about 10.30 a.m., complainant’s wife received a telephone call from Pooja, informing her that her husband, father-in-law and mother-in- law were harassing and beating her for bringing insufficient dowry. At about 3.30 p.m., complainant’s wife received another telephone call from her son-in-law, Sudhir Kumar, to the effect that Pooja had expired. At that time, complainant was away on his duty. When he returned back home at about 4.30 p.m., his wife told him about both the phone calls. Thereafter, the complainant along with his wife- Sushma, brother-Dev Raj with other residents of the Village, namely, Ralla Ram, Milkhi Ram, Anil Kumar and Gopal visited Village- Darpur. On being inquired from the villagers there, it revealed that Pooja had been murdered by her father-in-law, mother-in-law and her husband by administering some poisonous substance for bringing insufficient dowry. This statement was sent to the Police Station by ASI Tarsem Singh vide his endorsement, Ex.PL/2 for registration of the FIR. Resultantly, the present FIR was registered against the accused-appellants for the commission of offence punishable under Section 304-B read with Section 34 IPC. 3. ASI Tarsem Singh conducted the investigation of the present case, visited the house of the accused where dead body of Pooja was lying, prepared inquest report and also prepared the site- plan of the place of occurrence. CRA No.913-SB of 2002 -4- 4. The accused were arrested. After completion of investigation, final report under Section 173 Cr.P.C. was presented against all the three accused for being tried for the offence under Section 304B read with Section 34 IPC. 5. Charge was framed against all the three accused for the commission of offence under Section 304B/498A read with Section 34 to which all the accused pleaded not guilty and claimed trial. 6. In order to substantiate its case and allegations against the accused, prosecution examined as many as 12 witnesses. PW1-H.C. Mehar Singh, PW2-H.C. Ram Karan and PW3-H.C. Rambir Singh, are the formal witnesses. PW4-Constable Mulakh Raj had visited the place of occurrence i.e. house of the accused on 11.10.2001 and prepared the scaled site plan, Ex.PD. PW5-H.C. Barkha Ram deposed that he received the special report at 12.00 p.m. on 25.09.2001 and handed over the same to the Illaqa Magistrate, S.P. and D.S.P. at 12.30 p.m on the same date. PW6-Dr. Vineet Gupta, Medical Officer, General Hospital, Jagadhri, deposed that on 25.09.2001, he along with Dr. Rana Singh conducted post-mortem examination on the dead body of deceased-Pooja. He proved carbon copy of the post-mortem report as Ex.PE. As per the report of Histapathological Department, PGI, Rohtak, Ex.PH, the position of heart of Pooja was found normal, however, as per the report of Chemical Examiner, CRA No.913-SB of 2002 -5- Karnal, Ex.PJ, aluminium phosphide was found present in the viscera of the deceased. This witness gave his opinion, Ex.PK/1, the cause of death in this case was poisoning due to aluminium phosphide. PW7-ASI Suresh Kumar recorded the formal FIR Ex.PL/1 on receipt of ruqa, Ex.PL. PW8-Constable Pala Ram is a formal witness. PW9-Satish Kumar, complainant, is father of the deceased and he reiterated the prosecution version. PW10-Sushma Rani is mother of the deceased who also supported the prosecution story. PW11-ASI Tarsem Singh, who initially investigated the case, deposed about the steps taken by him during the investigation which, inter alia, included recording of statement of the complainant on 25.09.2001, registration of the case, visiting the place of occurrence, preparing the inquest report, Ex.PG, rough site plan, Ex.PN, and recording the statements of other witnesses. He also deposed about the steps taken by him for the post-mortem examination on the dead body of the deceased. He specifically deposed that the sealed parcels were deposited by him with the MHC on the same day. PW12-SI Sunder Singh, SHO, Police Station, Chhachhrauli, who partly investigated the case, deposed that he arrested the accused on 25.09.2001 from their house and also took into possession the dowry articles CRA No.913-SB of 2002 -6- vide memo Ex.PO. He also prepared report u/s 173 Cr.P.C. in this case. 7. The appellants were examined under Section 313 Cr.P.C. All of them took similar and identical plea of innocent and false implication. According to the plea taken by accused-Sudhir Kumar, he visited the house of his in-laws on 22.09.2001 and brought back the deceased to his house on 23.09.2001. Pooja had vomited at the Bus Stand, Village Dappar at 2.30. pm and on his enquiry, she told him that she had consumed some wrong medicine and thereafter, they returned to their home. However, on 24.09.2001 at about 9.00 a.m., she died in the house. 8. According to accused-Kamlesh Kumari, her son Sudhir Kumar used to live in the house of his in-laws and visited them off and on. In defence, no evidence was led by the accused. 9. On the basis of evidence brought up by both the parties before the learned trial Court, all the three accused have been convicted and sentenced for the offence and term as indicated at the outset of this judgment. 10. Aggrieved against the judgment of conviction and order of sentence, all the three accused have preferred the present the criminal appeal which was admitted vide order dated 22.08.2002 and accused Ved Parkash and Kamlesh Kumari were granted bail by this Court vide order dated 14.10.2003. Accused Sudhir Kumar was admitted to bail by this Court vide order dated 02.04.2004. 11. The learned counsel for the appellants submits that the deceased was under depression as she was a hypersensitive lady. The CRA No.913-SB of 2002 -7- learned counsel submitted that Prince, the brother of the deceased had expired on 10.07.2001 due to drowning in a pond. After the death of her brother, she came under acute depression. The learned counsel submitted that she had been residing with the parents most of the time. There was no demand of dowry from the appellant side. 12. The learned counsel further submitted that after the conviction, Satish Kumar, father of the deceased, sworn an affidavit dated 16.09.2010, wherein he and his wife, Sushma Rani, stated that the appellant-husband and Pooja, the deceased, were residing together happily in the family. He further submits that somebody gave wrong information and Satish Kumar, PW9, hurriedly got registered this case. This fact is supported by original affidavit brought on record as Mark ‘A’ 13. Mr. Paramjit Singh, Advocate, appearing for the complainant party submits that the deceased was neither murdered nor died due to demand of dowry. 14. I have heard learned counsel for the parties. 15. The question which arises before this Court is whether the offence under Section 304-B IPC read with Section 498-A IPC is made out or the case is covered by Section 306 IPC. Hon’ble the Apex Court, in Kishangiri Managalgiri Goswami Vs. State of Gujarat, 2009(1) R.C.R. (Criminal) 947, it has been observed as under:- “10. In State of West Bengal v. Orilal Jaiswal (AIR 1994 SC 1418) this Court has observed that the courts should be extremely careful in assessing the facts and CRA No.913-SB of 2002 -8- circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end her life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. 12. In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. [See Mahinder Singh v. State of M.P. (1995 AIR SCW 4570)] ”. 16. While dealing with the point whether the offence would fall under Section 304-B IPC or under Section 306 IPC, this Court in Harvinder Singh Vs. State of Punjab, 2005(3) R.C.R. (Criminal) 932, held as under:- “15. The learned trial Judge concluded that Karamjit Kaur’s was death by suicide and by necessary corollary, the learned Judge had ruled out dowry death. For CRA No.913-SB of 2002 -9- convicting an accused person under Section 304B what is necessary for the prosecution is to establish is that death of the woman had been caused either by burns or bodily injury or had occurred otherwise than under normal circumstances. In the present case death had neither been caused either by burns or bodily injury but by consumption of poison. Would such a death still be a death which had occurred otherwise than under normal circumstances. It seems that deaths which occurred otherwise than normal circumstances are cases where cause of death is somewhat blurred or uncertain. It does not seem that death by consumption of poison would fall under this clause which is in the nature of residuary provisions to cover cases where the woman had died neither due to burns nor bodily injuries. If death occurred under normal circumstances on account of illness or disease then it would not be a dowry death even though the other ingredients of the offence are present. Similar if death occurred due to consumption of poison and was found to be suicide then also the case would not fall under dowry death even though other ingredients are present. 16. In the present case and indeed in a large number of other cases where the woman commits suicide it seems that the correct provision to apply would be Section 306 IPC and the accused convicted for abetment CRA No.913-SB of 2002 -10- of suicide by employing the presumption laid down in Section 113-A of the Evidence Act.” 17. It has come in the evidence of Satish Kumar, PW9, that his son expired due to drowning. In his affidavit furnished before this Court, it has been admitted that the deceased, Pooja, was a hot- tempered lady and remained under depression before her death and she committed suicide by taking poison. He has further admitted that there was no fault on the part of the in-laws’ family. 18. From the record, it emerges that there is only single instance of demand of dowry. In Prem Kanwar Vs. State of Rajasthan, 2009(1) Recent Apex Judgments 524 (SC), Hon'ble the Supreme Court opined that the following essentials must be satisfied before any death can be termed as a 'dowry death':- (1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances. (2) Such death must have occurred within 7 years of the marriage. (3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her death; and (4) Such cruelty or harassment must be in connection with the demand of dowry. 19. In the present case, the last two ingredients are conspicuously missing. The ingredients of Section 304-B and 498-A CRA No.913-SB of 2002 -11- IPC are not proved. However, the deceased died one day after she came to her parental home. There must have been some provocation which perhaps led the deceased to take extreme step of ending her life. 20. Keeping in view the above circumstances, the offence under Section 304-B IPC is converted to Section 306 IPC, so the appellants are acquitted of the charge under Section 304-B IPC and rather they are convicted under Section 306 IPC. 21. The learned counsel for the appellants, on the quantum of sentence submits that the appellants, Ved Prakash and Kamlesh Kumari are father-in-law and mother-in-law of the deceased and have undergone actual sentence of about 01 year 09 months. The appellant- husband, Sudhir has undergone about 02 years 03 months of sentence. They have suffered protracted trial for about 8 years. They have not misused the concession of bail and are not previous convicts. Keeping in view the peculiar facts and circumstances, I deem the interest of justice would be fully met if the appellants are sentenced to the period already undergone. 22. With this modification in the conviction and reduction in the sentence, this appeal fails and is dismissed. ( JITENDRA CHAUHAN ) 21.09.2010 JUDGE atulsethi Note : Whether to be referred to Reporter : Yes / No