IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 505-DB of 2001 DATE OF DECISION : 21.01.2010 Rajbir @ Raju and another .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. B.S. Saroha, Advocate, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellants Rajbir alias Raju, husband, and Chandro, mother-in- law, of the deceased Sunita, were tried by the Court of learned Sessions Judge, Rohtak, for commission of the offences under Sections 498-A and 304-B of the Indian Penal Code, in case FIR No. 279 dated 4.9.1998 registered at Police Station Sadar, Rohtak. Vide judgment and order dated 1.9.2001, the learned trial court convicted appellant No.1 Rajbir under Sections 304-B and 498-A IPC. However, appellant No.2 Chandro has been acquitted of the charge under Section 304-B IPC and convicted only under Section 498-A IPC. Appellant No.1 has been sentenced to undergo imprisonment for life under Section 304-B IPC; and to undergo rigorous Crl. A. No. 505-DB of 2001 -2- imprisonment for two years and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for three months, under Section 498-A IPC. Both the sentences have been ordered to run concurrently. Appellant No.2 has been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default to undergo rigorous imprisonment for three months, under Section 498-A IPC. 2. As per the prosecution version, appellant No.1 married Sunita on 20.3.1998. On 3.9.1998 at 6 P.M., within six months of the marriage, Sunita died in the house of her husband, wherein her mother-in-law (appellant No.2) was residing with appellant No.1, who is a tailor master. The father-in-law of the deceased was not alive. On receiving the information of the death of Sunita, her parents and relatives came to the village of the appellants and found that the dead body of Sunita was lying in the court yard. 3. On 4.9.1998 at about 10 AM, Ran Singh (PW.6), father of the deceased, made a statement (Ex.PF) to the police, on the basis of which the FIR (Ex.PF/1) was registered against the accused. Ran Singh, in his statement to the police, stated that he was doing the labour work and was having four sons and four daughters. Sunita, who was his third number child, was married to appellant No.1 on 20.3.1998. He stated that though in the marriage, he gave dowry as per his capacity, but his son-in-law and his mother were not happy with it. On that account, they started torturing his daughter. They asked her to bring Rs. 50,000/- for opening a shop at Rohtak. For the said purpose, his daughter came to him. Then he along with Crl. A. No. 505-DB of 2001 -3- his wife and brother called Maha Singh Ex-Sarpanch of the village and told him about the said demand. Thereafter, he and his brother Chet Ram went to the village of the accused along with Sunita and collected the brotherhood of the accused and told them that they were poor persons and could not meet with the demand of the appellants. Thereupon, both the appellants started abusing them. It is further stated that then they, after having solaced Sunita and leaving her there, returned back to their village. Thereafter, on 28.8.1998, just few days before the occurrence, Sunita again came to their house and asked about the harassment caused to her by the accused. On assurance given to her that they will arrange the money, if possible, Sunita returned back to her in-laws. On 3.9.1998 at about 7 P.M., he received a message that his daughter Sunita was ailing seriously. When he along with his brother Jagdish went to the village of the appellants, they found that Sunita was lying dead in the courtyard. 4. On the basis of the above said statement, FIR (Ex.PF/1) under Section 304-B and 498-A IPC was registered against both the appellants. Autopsy of the dead body of the deceased was conducted on 4.9.1998 at 12.10 P.M by Dr. R.P. Kalonia (PW.1) and Dr. Hari Om Manchanda of General Hospital, Rohtak. As per the post mortem report (Ex.PB), the following injuries were found on the body of the deceased : 1. A diffused contusion reddish in colour on right side of face extending between left half of both lips and upto right pinna and from the zygomatic area to right angle mendible. On dissection underlying tissue was found Ecchymesed. Crl. A. No. 505-DB of 2001 -4- 2. On right side of neck, a diffused contusion 3.5 cms x 2.5 cms situated 2.5 posterio inferior to right angle of mendible. On dissection underlying area was Ecchymesed. 3. A contusion size of 7.5 cms x 5 cms over left side of neck just below angle of mendible. Underlying area on dissection was Ecchymesed. 4. Multiple reddish contusion of various sizes from 0.5 cm x 0.5 cm to 1 cm x 0.5 cm on both lips including an area of 6 x 4 cms. On dissection, underlying area was Ecchymesed. 5. A laceration of size of 1.5 cm x 1 cm present inside the lower lip corresponding to lower incisor tooth and whole of the neck on both sides below thyroid bone was found Echhymesed on dissection. 5. As per the opinion of the Doctors, the cause of death was due to smothering and throttling, which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. The probable duration between injuries and death was within few minutes and between death and post mortem, was between 12 to 36 hours. 6. During investigation, the appellants were arrested on 10.9.1998 and on the same day, in pursuance of the disclosure statement (Ex.PG) made by appellant No.1, Dupatta (Ex.P2) was got recovered by him after entering in the residential house, by removing the bed lying on the cot in the room. It was taken into possession vide recovery memo Ex.PH. 7. After completion of investigation, the challan was filed against the appellants and charges were framed, to which they did not plead guilty and claimed trial. 8. In support of its case, the prosecution examined 11 witnesses. PW.1 Dr. R.P. Kalonia proved the post mortem report (Ex.PB) of the Crl. A. No. 505-DB of 2001 -5- deceased. PW.2 Constable Radhey Sham, who prepared the scaled site plan Ex.PD of the place of occurrence, PW.3 Constable Ram Phal, who delivered special reports to the Illaqa Magistrate, SP and DSP Rohtak, PW.4 SI Ashok Kumar, SHO PS Sadar Rohtak, who took into possession the wedding card (Ex.P1) vide recovery memo Ex.PE and PW.5 Pt. Roop Kumar, who recited Mantras at the time of performing of the marriage of deceased Sunita with appellant No.1, are the formal witnesses. PW.6 complainant Ran Singh, father of the deceased, PW.7 Chet Ram, brother of Ran Singh, PW.8 Manbhari wife of Ran Singh and PW.9 Ranbir Singh son of Ran Singh are the material witnesses, who supported the prosecution version. PW.10 ASI Jagat Singh is another formal witness, who recorded the FIR Ex.PF/1. PW.11 SI Inder Singh is the Investigating Officer of the case. 9. In their statements under Section 313 Cr.P.C., the appellants denied all the allegations appearing against them in the evidence led by the prosecution. They pleaded innocence and took the common defence that they had never maltreated the deceased, who was leading a very happy married life with appellant No.1. They never made any demand of dowry from the deceased or her parents. Ran Singh, father of the deceased, had borrowed a sum of Rs. 20,000/- from appellant No.1, which he subsequently refused to repay and for this reason, appellant No.1 and his deceased wife had exchanged some hot words with him. From that day onwards, he was keeping ill will against them. The deceased had died due to vomiting, dyhorria and dysentery. Even before any medical aid could be given to her, Crl. A. No. 505-DB of 2001 -6- the report of her illness was sent to Ran Singh and his family members. The appellants claim that taking the advantage of the death of Sunita, to wreck vengeance upon them, Ran Singh lodged false FIR against them, in order to further extract money. 10. The trial court, after considering the rival contentions of learned counsel for the parties, convicted and sentenced appellant No.1 Rajbir alias Raju (husband) under Sections 304-B and 498-A IPC, as stated above. However, regarding appellant No.2 Chandro (mother-in-law), it was held that keeping in view the factum of her suffering from 75% permanent disability and she being an old lady of 70 years of age, she might not have possibly participated in the throttling and smothering of the deceased, which resulted into her un-natural death. In view of this finding, appellant No.2 was acquitted of the charge under Section 304-B IPC and was convicted only under Section 498-A IPC. 11. It is pertinent to mention here that against the acquittal of appellant No.2 of the charge under Section 304-B IPC, neither the State nor the complainant has filed any appeal or revision. 12. We have heard the arguments of learned counsel for the parties and have perused the record of the case. 13. Learned counsel for the appellants, while referring to the statements of PW.6 complainant Ran Singh, PW.7 Chet Ram, PW.8 Manbhari and PW.9 Ranbir Singh, pointed out some contradictions with regard to the demand of Rs. 50,000/-, the time when the said demand was Crl. A. No. 505-DB of 2001 -7- made and the date, when the deceased allegedly visited the house of her parents. He has argued that PW.6 Ran Singh, who is father of the deceased, has admitted in his cross-examination that he had taken a loan of Rs.20,000/- from appellant No.1. In view of this admission, learned counsel submits that it is highly improbable that the appellants were demanding any dowry from the parents of the deceased or were causing any harassment to her on that account. Therefore, the learned trial court has committed grave error, while convicting appellant No.1 for the offence under Section 304-B IPC and while convicting both the appellants under Secton 498-A IPC. However, the un-natural death of the wife of appellant No.1 and the daughter-in-law of appellant No.2 within seven years of her marriage has not been contested. Learned counsel mainly argued on the point that the demand of dowry by the appellants from the parents of the deceased just before her death has not been proved by the prosecution, therefore, conviction of appellant No.1 under Section 304-B IPC is not sustainable. In the last, learned counsel argued that if this Court comes to the conclusion that appellant No.1 has caused the dowry death of his wife Sunita, then the present case is not a rarest of rare case, where the extreme punishment of imprisonment for life is warranted, therefore, he prays that the life sentence awarded to appellant No.1 be reduced. 14. On the other hand, learned counsel for the respondent-State submits that in the facts and circumstances of the present case, no interference in the conviction and sentence awarded to the appellants is Crl. A. No. 505-DB of 2001 -8- required. Regarding reduction of sentence qua appellant No.1, he submits that in the present case, death of the deceased wife is not simply an un- natural death, but from the medical evidence, it has been proved that the deceased has died due to smothering and throttling, which were ante- mortem in nature and were sufficient to cause death in the ordinary course of nature. While referring the Post Mortem Report (Ex.PB) and the statement of Dr. R.P. Kalonia (PW.1), learned counsel submits that in this case, there were some injuries on the face of the deceased, which indicate that she had struggled before her death. All these facts indicate that the death in this case was homicidal and that might be the result of direct act of the accused. In view these facts and circumstances, learned counsel for the respondent-State submits that the instant case is a rarest of rare case, where the sentence of imprisonment for life, as awarded by the learned trial court, is fully justified. 15. Undisputedly, marriage of Sunita (deceased) had taken place with appellant No.1 Rajbir alias Raju on 20.3.1998 and she had died within 6 months of the marriage on 3.9.1998 in the house of the appellants. As per the medical evidence led by the prosecution, death of Sunita was un-natural. PW.1 Dr. R.P. Kalonia, who proved the Post Mortem Report (Ex.PB), in his statement before the Court stated that during the post mortem examination, he found five injuries on the body of the deceased and in his opinion, the cause of death was due to smothering and throttling, which were sufficient to cause death in the ordinary course of nature. Though the medical Crl. A. No. 505-DB of 2001 -9- evidence and the recovery of Dupatta (Ex.P2), on the disclosure statement made by appellant No.1, gave indication that the death of Sunita might have been caused by putting hand on her mouth by force and strangulation by Dupatta around her neck, but in the absence of any direct evidence, it cannot be concluded that her death was caused by the appellants. It appears that because of this reason, no charge under Section 302 IPC was framed against the appellants. But from the evidence, available on the record, it has been categorically established that the death of Sunita was un-natural and was caused not under normal circumstances. Therefore, two important ingredients of Section 304-B IPC, i.e. (i) the death of a woman was caused within seven years of her marriage; and (ii) the un-natural death of such woman, have been established. The other two ingredients, i.e. (i) such woman was subjected to cruelty or harassment by her husband or any relative of her husband soon before her death; and (ii) she was subjected to such cruelty or harassment for, or in connection with, any demand for dowry, in our opinion, have also been established by the prosecution. PW.6 Ran Singh, PW.7 Chet Ram, PW.8 Manbhari, and PW.9 Ranbir Singh, who are father, uncle, mother and brother of the deceased, respectively, have consistently stated that after two months of the marriage of the deceased, the appellants started harassing her on account of bringing insufficient dowry. It has also come in evidence that on 28.8.1998, soon before her death, the deceased came to her parents house and complained against the harassment being caused to her by the appellants for bringing Rs. 50,000/-. After giving Crl. A. No. 505-DB of 2001 -10- assurance by the parents of the deceased that they will arrange money, if possible, the deceased returned back to her in-laws house, where her dowry death was caused on 3.9.1998. 16. Learned counsel for the appellants argued that in this case, the ingredients of the demand of dowry, soon before the death of the deceased, have not been established, because statements of the prosecution witnesses in this regard are highly improbable and unreliable, in view of the admitted fact that father of the deceased had borrowed a sum of Rs. 20,000/- from appellant No.1, husband of the deceased. He submits that if that was the position, then how the demand of dowry can be made from a person, who himself has no money and had taken the loan. We are of the opinion that merely in view of the fact that father of the deceased had taken a loan of Rs. 20,000/- from husband of the deceased, no inference can be drawn that no demand of dowry was made from him by the appellants. The minor contradictions, as pointed out by learned counsel for the appellants in the statements of the aforesaid four material witnesses, with regard to the demand of Rs. 50,000/-, the time when the said demand was made and the date, when the deceased allegedly visited the house of her parents, also do not render their statements as unreliable or un-trustworthy. Therefore, in our opinion, learned trial court has rightly come to the conclusion that in the instant case, there was demand of dowry by the accused, soon before the death of deceased Sunita. In view of these facts, the trial court has rightly raised the presumption with regard to the commission of dowry death and Crl. A. No. 505-DB of 2001 -11- has rightly convicted appellant No.1 under Section 304-B and 498-A IPC. The presumption raised against the accused in case of dowry death under Section 304-B IPC read with Section 113B of the Indian Evidence Act, 1872 is rebuttable and thus, it is for an accused to prove his innocence. In the instant case, while taking the plea that the appellants never maltreated and harassed the deceased on account of demand of dowry, it was stated by the appellants that on account of borrowing of Rs. 20,000/- by the complainant from appellant No.1, the deceased and appellant No.1 had exchanged some hot words with the complainant. It was further stated that the deceased was happy in the family and she had died due to vomiting, dyhorria and dysentery and before any medical aid could be provided to her, she died due to illness. This defence is not corroborated by the medical evidence. As per the statement of PW.1 Dr. R.P. Kalonia, the cause of death of the deceased in this case was due to smothering and throttling. In his cross-examination, he had categorically stated that smothering means the method in which airways is closed by means of applying pressure over mouth and throttling is manual pressure given on the neck and the deceased in this case died due to cumulative effect of throttling and smothering. It was for the accused to explain how the deceased has died in the house by smothering and throttling, which has not been explained by appellant No.1. Therefore, the presumption raised against him for committing dowry death of his wife has not been rebutted by any cogent and reliable evidence. 17. As far as appellant No.2, Smt. Chandro, is concerned, she has Crl. A. No. 505-DB of 2001 -12- been convicted and sentenced only under Section 498-A IPC and has been acquitted of the charge under Section 304-B IPC, by giving her benefit of doubt, keeping in view the factum of her suffering from 75% permanent disability and she being an old lady of 70 years of age, she might not have possibly participated in the throttling and smothering of the deceased. Since no appeal or revision against her acquittal under Section 304-B IPC has been filed, therefore, we are not making any comment regarding the same. However, her conviction and sentence under Section 498-A IPC is wholly legal and justifiable. 18. Now, the question raised by learned counsel for the appellants is : Whether in the facts and circumstances of the case, the awarding of sentence of imprisonment for life to appellant No.1 under Section 304-B IPC is justified ? Section 304-B IPC provides that “Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extent to imprisonment for life.” Whether in a given case, the minimum sentence of seven years or the maximum sentence of life imprisonment is to be awarded, depends upon the facts and circumstances of each case. In the similar circumstances, this question came up for consideration before the Hon'ble Supreme Court in Hem Chand v. State of Haryana, (1994) 6 Supreme Court Cases 727, wherein the following observations were made : “The point for consideration is whether the extreme punishment of imprisonment for life is warranted in the instant case. A Crl. A. No. 505-DB of 2001 -13- reading of Section 304-B IPC would show that when a question arises whether a person has committed the offence of dowry death of a woman what all that is necessary is it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person, to cruelty or harassment for or in connection with demand for dowry. If that is shown then the court shall presume that such a person has caused the dowry death. It can therefore be seen that irrespective of the fact whether such person is directly responsible for the death of the deceased or not by virtue of the presumption, he is deemed to have committed the dowry death if there were such cruelty or harassment and that if the unnatural death has occurred within seven years from the date of marriage. Likewise there is a presumption under Section 113-B of the Evidence Act as to the dowry death. It lays down that the court shall presume that the person who has subjected the deceased wife to cruelty before her death caused the dowry death if it is shown that before her death, such woman had been subjected, by the accused, to cruelty or harassment in connection with any demand for dowry. Practically this is the presumption that has been incorporated in Section 304-B IPC also. It can therefore be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned above are satisfied. In the instant case no doubt the prosecution has proved that the deceased died an unnatural death namely due to strangulation, but there is no direct evidence connecting the accused. It is also important to note in this context that there is no charge under Section 302 IPC. The Crl. A. No. 505-DB of 2001 -14- trial court also noted that there were two sets of medical evidence on the file in respect of the death of the deceased. Dr. Usha Rani PW.6 and Dr. Indu Lalit PW.7 gave one opinion. According to them no injury was found on the dead body and that the same was highly decomposed. On the other hand, Dr. Dalbir Singh PW.13 who also examined the dead body and gave his opinion, deposed that he noticed some injuries at the time of re-post-mortem examination. Therefore at the most it can be said that the prosecution proved that it was an unnatural death in which case also Section 304-B IPC would be attracted. But this aspect has certainly to be taken into consideration in balancing the sentence to be awarded to the accused. As a matter of fact, the trial court only found that the death was unnatural and the aspect of cruelty has been established and therefore the offences punishable under Sections 304-B and 201 IPC have been established. The High Court in a very short judgment concluded that it was fully proved that the death of the deceased in her matrimonial home was a dowry death otherwise than in normal circumstances as a result of cruelty meted out to her and therefore an offence under Section 304-B IPC was made out. Coming to the sentence the High Court pointed out that the accused-appellant was a police employee and instead of checking the crime, he himself indulged therein and participated in it and that bride-killing cases are on the increase and therefore a serious view has to be taken. As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case.” Crl. A. No. 505-DB of 2001 -15- While making the aforesaid observations in that case, the Hon'ble Supreme Court reduced the sentence of imprisonment for life to 10 years' RI. 19. In the instant case, as per the