IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.431-DBA of 1999 Date of decision: 11.01.2008 State of Haryana. -----Appellant. Vs. Ajay Kumar and others. -----Respondents. AND Criminal Appeal No.192-SB of 1999 Date of decision: 11.01.2008 Pawan Kumar. -----Appellant. Vs. State of Haryana. -----Respondent. AND Criminal Revision No.634 of 1999 Date of decision: 11.01.2008 Jagbir Singh -----Petitioner. Vs. State of Haryana and others. -----Respondents. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S.D. ANAND Present: Mr. S.S. Pattar, Sr. DAG, Haryana for the State. Mr. Vinod Ghai, Advocate Criminal Appeal No.431-DBA of 1999 Criminal Appeal No.192-SB of 1999 & Criminal Revision No.634 of 1999 for the accused. Mr. Pawan Girdhar, Advocate for the complainant. ----- Adarsh Kumar Goel, J. This order will dispose of Criminal Appeal No.431-DBA of 1999 filed by the State against acquittal of Ajay Kumar, Saran Singh, Swaraj Wati and Mukesh Kumari, Crl.A.192-SB of 1999 filed by Pawan Kumar accused against his conviction under Section 304-B IPC, for which, he has been sentenced to undergo rigorous imprisonment for ten years and Criminal Revision No.634 of 1999 filed by Jagbir Singh, complainant. Case of the prosecution is that Neelam, deceased, was married to Pawan Kumar accused on 25.11.1992. She was harassed for dowry and the harassment continued and on 6.8.1995, Neelam died by burning. On getting this information on 7.8.1995 in the morning, Jagbir Singh, PW-7 brother of the deceased, went to the house of the accused and sent his brother Dalbir Singh to send for his father, who also came. Jagbir Singh, lodged the FIR (Ex.PD) at 11-30 A.M. on 7.8.1995. PW-13 Jagdish Ram, SI conducted the investigation by going to the spot. The dead body was sent for post-mortem examination. The post-mortem examination was conducted by Dr. Prem Chand, PW-5 on 7.8.1995 at 5 P.M. According to him, death took place on account of 100% burns, which were ante mortem in nature and sufficient to cause death. After completing investigation, 2 Criminal Appeal No.431-DBA of 1999 Criminal Appeal No.192-SB of 1999 & Criminal Revision No.634 of 1999 the accused were challaned. There were seven accused i.e. Pawan Kumar - husband of the deceased, Swaraj Wati and Saran Singh -parents of the accused, Ajay Kumar - brother of the husband, Mukesh Kumari - wife of Ajay Kumar, Shashi Bala - sister of the husband and Dharam Pal Singh - husband of Shashi Bala. The accused denied the prosecution allegations. Accused Pawan Kumar stated that the deceased had some problem in the uterus and in spite of treatment, she was told that she will not be in a position to give birth to a child. She was depressed, on account of which, she committed suicide. Dharam Pal, accused, stated that he was married to Shashi Bala in the year 1981 and was in service with the railways and had nothing to do with the family of the deceased and there was no question of demand of any dowry by him or his wife. The trial Court after considering the evidence on record, held that case of the prosecution was proved against Pawan Kumar but was proved against the other co-accused. Accordingly, the trial Court acquitted the other accused except Pawan Kumar. The substance of findings recorded by the trial Court is as under:- (i) From the evidence of PW-7 Jagbir Singh, brother of the deceased, PW-10 Khajan Singh, father of the deceased and PW-8 Arjan Singh, mediator in the marriage, it was clear that Pawan Kumar, accused, had made a demand of dowry. The instances of demand of dowry are:- a) Demad of Rs.50,000/- two years prior to the occurrence for starting work for Pawan Kumar; 3 Criminal Appeal No.431-DBA of 1999 Criminal Appeal No.192-SB of 1999 & Criminal Revision No.634 of 1999 b) Demand of Rs.10,000/- after one year of the demand of Rs.50,000/-; c) Demand of Rs.40,000/- in January 1995 and Rs.15,000/- in February, 1995. (ii) The story of the defence that the deceased committed suicide on account of depression was not established from the defence version; (iii) Involvement of other accused than husband of the deceased, was doubtful. Shashi Bala, sister-in-law of the deceased and her husband Dharam Pal were living separately since 1981 much prior to the marriage of the deceased. Ajay Kumar and Saran Singh were having their own sources of income and they had no occasion to demand dowry. They were also living separately from the couple; (iv) Only reason for demand of dowry was that Pawan Kumar was unemployed and in that situation, there was no clear evidence about the involvement of others. We have heard learned counsel for the parties and perused the record. We will first take up the appeal of the husband who has been convicted. 4 Criminal Appeal No.431-DBA of 1999 Criminal Appeal No.192-SB of 1999 & Criminal Revision No.634 of 1999 It remains undisputed that Neelam deceased was married to the appellant Pawan Kumar on 25.11.1992. She died on account of burn injuries on 6.8.1995 within three years of the marriage. Only question is whether there was demand of dowry soon before her death, in which case, presumption under Section 113-B will arise. PW-7, brother of the deceased has given categorical instances of harassment for demand of dowry and the said version has been corroborated in material particulars by the testimony of Khajan Singh, PW-10, father of the deceased. The said witnesses claim to have been told by the deceased that she was taunted for insufficient dowry and was given beatings. Pawan Kumar was unemployed and a sum of Rs.50,000/- was demanded for settling him. Some amount was given but the demand continued as the parents of the deceased could not meet the entire demand. Even on the date of death, Pawan Kumar went to the house of witnesses and made a demand of Rs.5,000/- for repair of three wheeler, which showed that the demand of dowry continued till the date of death. In view of above, it stands clearly established that the deceased was subjected to harassment soon before her death. It was further contended on behalf of the appellant that there were certain contradictions and discrepancies in the testimony of PW-7 Jagbir Singh and PW-10 Khajan Singh. We do not find any merit in the contention raised. As far as contradictions pointed out about the dates on which demands were 5 Criminal Appeal No.431-DBA of 1999 Criminal Appeal No.192-SB of 1999 & Criminal Revision No.634 of 1999 made, it is well settled that the case of the prosecution is to be seen broadly and if the testimony of the prosecution witnesses is reliable, minor contradictions which would not to go to the root of the matter, cannot be given any significance. Discrepancies may arise on account of loss of memory or error of perception. The stand of the prosecution witnesses about demand of dowry was consistent. The deceased died within three years of the marriage. As held in Hira Lal v. State (Govt. of NCT), Delhi AIR 2003 SC 2865, to attract Section 304-B IPC, death of woman should have taken place by burns or bodily injury or otherwise under normal circumstances within seven years of the marriage and it should be proved that she was subjected to harassment by husband or his relatives in connection with demand of dowry. The above provision was incorporated in the wake of report of the Law Commission in its 21st report dated 10.8.1988. On proof of ingredients of Section 304-B IPC, presumption under Section 113-B of the Evidence Act arises, which makes it obligatory on the Court to presume that the accused caused the dowry death. Suicidal death is also covered under Section 304-B IPC. The amendment in law was made as the existing law was not sufficient to meet the situation arising out of crimes of dowry deaths. Direct evidence is not easily available to prove such crimes. 6 Criminal Appeal No.431-DBA of 1999 Criminal Appeal No.192-SB of 1999 & Criminal Revision No.634 of 1999 Exact amount of demand of dowry is not required to be proved and merely because there are discrepancies, is no ground to reject the testimony of witnesses unless such witnesses can be held to be untruthful. Reference may be made to judgments of the Hon’ble Supreme Court in State of Karnataka v. K. Gopalakrishna AIR 2005 SC 1014 and Alamgir Sani v. State of Assam AIR 2003 SC 2108. We do not find any reason whatsoever for rejecting the testimony of the prosecution witnesses about demand of dowry. Thus case of the prosecution is fully established against the appellant Pawan Kumar. It was next contended that minimum sentence provided for the offence under Section 304-B IPC is seven years and having regard to the fact that the appellant suffered the agony of the trial for the last 13 years, the sentence may be reduced. Having regard to the circumstances of the case, we are of the opinion that justice would be met if the sentence awarded to Pawan Kumar is reduced to rigorous imprisonment for seven years. We order accordingly. We now take up the case of the State and the complainant against parents of the husband, brother and sister and sister’s husband of the husband of the deceased. Admittedly, sister and sister’s husband were duly married long ago in the year 1981 and were living separately. The parents of 7 Criminal Appeal No.431-DBA of 1999 Criminal Appeal No.192-SB of 1999 & Criminal Revision No.634 of 1999 the husband had also separated and the deceased was living only with her husband. Father of the husband of the deceased as well as brother of the husband of deceased were duly employed and there was no question of demand of dowry by them. It is well settled that Court has to be cautious in considering the case of other relatives of the husband of deceased and in absence of clear evidence, they cannot be convicted. In Kans Raj v. State of Punjab AIR 2000 SC 2324, the Hon’ble Supreme Court noticed the tendency to rope in all relations of the in-laws of the deceased wife and observed that unless overt acts attributed to persons other than the husband are proved beyond reasonable doubt, such relations could not be held to be guilty of the offence of dowry death. The trial Court has taken a possible view in holding that case of the prosecution against the acquitted co-accused was doubtful. Even if two views are possible in appeal against acquittal, unless evidence has been ignored or miscarriage of justice has taken place, the acquittal is not liable to be interfered with. The appeal of the State and revision petition of the complainant against the acquitted accused are thus, liable to be dismissed. Accordingly, Criminal Appeal No.431-DBA of 1999 and Criminal Revision No.634 of 1999 are dismissed. Criminal Appeal No.192-SB of 1999 filed by the accused Pawan Kumar is partly allowed on the question of sentence, as above, while upholding his conviction. ( ADARSH KUMAR GOEL ) JUDGE 8 Criminal Appeal No.431-DBA of 1999 Criminal Appeal No.192-SB of 1999 & Criminal Revision No.634 of 1999 January 11, 2007 ( S. D. ANAND ) ashwani JUDGE 9