IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.677-SB of 1997 Date of decision: 13th January, 2010 Sona and another … Appellants Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Baldev Singh, Senior Advocate with Mr. Sudhir Sharma, Advocate for the Appellant. Mr. Deepak Jindal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) This appeal is directed against the judgment passed by Additional Sessions Judge, Gurgaon, who had convicted the appellant Sona wife of Banwari Lal and Virender son of Banwari Lal for offence under Section 304-B and 498-A IPC. The trial Court had sentenced the appellants as under: “(i) Accused Virender is sentenced to undergo rigorous imprisonment for a period of 10 yeas for the offence under Section 304-B IPC. He is further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- for the offence under Section 498-A IPC. In default of payment of fine he shall undergo further imprisonment for two months. (ii) Accused Smt. Sona is sentenced to undergo rigorous imprisonment for a period of 7 years for the offence under Section 304-B IPC. She is further sentenced to undergo rigorous imprisonment for a period of two years and Criminal Appeal No.677-SB of 1997 pay a fine of Rs.500/- for the offence under Section 498-A IPC. In default of payment of fine she shall undergo further imprisonment for two months.” Both the appellants were nominated as accused in case FIR No.90 dated 09.05.1994 registered at Police Station Pataudi under Section 498-A and 304-B IPC. The appellant Virender was married with Birmati, daughter of complainant Surat Singh. Appellant Sona is mother-in-law of Birmati. Surat Singh met the police party headed by Puran Mal SI/SHO, Police Station Pataudi. The police party was present near Octroi Post on Bilaspur Road. Surat Singh stated in his statement that he was having seven children, out of which three were daughters and four were sons. The youngest daughter Birmati, about three years ago was married with Virender son of Banwari Lal caste Ahir, according to Hindu rites. At the time of marriage, television, cooler, steel almirah, palang, fan, sewing machine, sofa, dressing table, two watches, two gold earrings, necklace, mangal sutar made of silver, six pairs of gold rings and 5100/- in cash were given in the form of dowry. At the time of marriage, bridegroom was demanding a scooter but the demand could not be fulfilled as the complainant had a large family to support. The accused had a grievance that scooter was not given in the marriage, therefore, they used to maltreat Birmati and give her beating. Birmati was residing with the complainant for about 10 months. Two months before the occurrence on the asking of elder brother of Virejder, Birmati was sent to her matrimonial home. It was stated that Sona also taunted son of the complainant and asked him either to give scooter or to take back Birmati. It is stated in the complaint that Prabha daughter of Jaswant Singh told the complainant that Sona mother-in-law and husband Virender had given beating to Birmati and had burnt her after pouring kerosene oil. Complainant along 2 Criminal Appeal No.677-SB of 1997 with his relatives was going to lodge the report when police party met him. He stated that since the scooter was not given at the time of marriage, his daughter Birmati has been killed by the accused appellants. The matter was investigated and report under Section 173 Cr.P.C. was submitted. Thereafter, appellant were charged for offences under Section 498-A and 304-B IPC. It was stated in the charge under Section 304-B that on 9th May, 1994 in the area of village Bhokarka, Birmati died within seven years of her marriage, as her marriage had taken place three years prior to 9th May, 1994 and the accused had subjected her to cruelty and harassment and had also demanded scooter in the dowry. Therefore, they were liable to be punished for the offence under Section 304-B IPC. Both the accused appellants pleaded not guilty and claimed trial. Dr.Rekha Yadav PW-10 on 10th May, 1994 had conducted autopsy on the dead body of Birmati aged 21/22 years. She observed following burn injuries on the person of Birmati: “It was a body of a burnt female showing burns of dermo epidermal burns almost every part of the body. There was rigidity of the body due to the burns. Body had traces of earth on the front as well as on the back side. There were burnt remnants of the blouse, bra and under-garments on the dead body. There were dermo epidermal burns all over the body except the sole of the feet. There were areas of pealed and blackening skin with red basis over the body. There was deposit of soot in both the nostrils and oral cavity. There were singin of scalp hair, eye-brow, eye-lashes at the tips upto the root.” This witness further stated that on dissection of the dead body there was deposit of soot in the air passage and also in naso pharynx, trachea and bronchial tube. Smell of kerosene oil was also 3 Criminal Appeal No.677-SB of 1997 present. According to this witness, cause of death was burns, which were ante-mortem in nature and were sufficient to cause death in the normal course of nature. This witness further stated that the time, which elapsed between the injury and death was immediate and time between the death and post-mortem was 24 hours. In cross examination, this witness stated that such type of burns can occur in suicide also. Dr.P.D. Mehra, Medical Officer, Civil Hospital, Pataudi appeared as PW-8. This witness on 13th May, 1994 at 9.00 a.m., examined Sona accused appellant and found two partially healed abrasions. According to this witness, these injuries were simple in nature and the probable duration was within one week. On 13th May, 1994 at 9.20 p.m., this witness also examined Virender Singh accused appellant aged 25 years. Four simple injuries were found on his person. Injury No.1 was partially healed scar abrasion on the face below eye. Injury No.2 was abrasion on the upper and lower limbs. Injury No.3 was abrasion on the nose on the right side. Injury No.4 was a blister formation on the dorsal aspect of right index finger. All the injuries were declared simple. In cross examination, this witness admitted that both the injured could have sustained injuries on 9th May, 1994. Dr.S.K. Sharma, Medical Officer, General Hospital, Gurgaon appeared as PW-7. He stated that even though Sona Devi was earlier medico legally examined, he again examined her on 17th May, 1994 at 2.40 p.m. He observed that there was hypopigmented mildly reddish area over the tip of the nose. According to this witness, this injury was simple. Virender Singh husband of the deceased was also again examined on the same day by PW-7 Dr.S.K. Sharma at 2.45 p.m. He had also found hypopigmented area near the cheek. According to this witness, all the injuries were simple in nature. in cross examination, this witness stated 4 Criminal Appeal No.677-SB of 1997 that injuries on the person of both the accused could have been sustained on 9th May, 1994. Prabha wife of Mangal appeared as PW-1. She stated that she was sister of Birmati and Birmati was married with Virender appellant in village Bhokarka. On 9th May, 1994 at about 12 noon, she had visited the house of accused. At that time, Birmati was not present. She again visited and saw both the appellants quarreling with Birmati. Virender accused was carrying a can of kerosene oil. He was throwing kerosene oil on Birmati and Sona accused had alighted the match stick and had thrown the same on Birmati. Thereafter, she visited the native place of deceased Birmati but father of Birmati was not available. Then she went to Pataudi and at about 7.30 p.m., narrated the entire incident to Surat Singh complainant. In cross examination, she stated that Birmati had two other sisters and all the three were married. She further admitted in cross examination, that she had visited house of Birmati on the day of occurrence for the first time. She further stated that neither Virender nor his mother Sona had ever visited her house. She denied the prosecution suggestion that she has not visited the house of the accused. This witness further stated that police had recorded her statement after ten days of the occurrence. Azad Kumar PW-2 Photographer proved photographs Ex.P1 to P-6. Mohan Lal Constable PW-3 stated that statement Ex.PA of Surat Singh with his endorsement Ex.PA/1 was converted into formal FIR Ex.PA/2. Mool Chand Punia, PW-4 had prepared scaled site plan Ex.PB. Complainant Surat Singh appeared as PW-5. He reiterated what was stated in the FIR. He stated that the distance between Pataudi and Bhokarka was 4/5 km. It will be worthwhile to notice following portion of the cross examination: 5 Criminal Appeal No.677-SB of 1997 “Till the death of my daughter, the accused had been demanding scooter, and nothing else, but I had not given scooter to the accused or anything else.” Krishan Kumar son of the complainant and brother of Birmati appeared as PW-6. He stated that marriage of Birmati was solemnized with Virender on 21st May, 1991. He corroborated the testimony of PW-5 Surat Singh complainant. This witness in cross examination, further stated that Prabha who had given the information, was married in village Lohchaka and village Lohchaka was at a distance of 1 km from village Bhokarka. He stated that the information regarding death of Birmati was received by them at 10.30 p.m. Puran Mal, SI/ SHO appeared as PW-9. He proved statement Ex.PA, on the basis of which, formal FIR was registered. He further stated that he got the occurrence photographed, inspected the dead body and prepared inquest report Ex.PJ and prepared rough site plan Ex.PK of the place of occurrence. He also picked up some ashes and some earth from the spot. In cross examination, this witness stated that statement of Prabha daughter of Ganpat was recorded on 19th May, 1994. This witness further stated that Prabha daughter of Jaswant Singh was married in village Bhokarka and was projected as an eye- witness on 9th May, 1994 by the complainant party. He tried to associate Prabha during investigation, but she was not available. In cross examination, PW-9 Puran Mal stated as under: “It is correct that Virender and his wife Birwati were maintaining independent mess and residence.” Thereafter, prosecution closed its evidence. Statement of accused under Section 313 Cr.P.C. was recorded and all incriminating circumstances were put to them. The accused Virender in his statement recorded under Section 313 Cr.P.C. gave the following version: 6 Criminal Appeal No.677-SB of 1997 “The allegations with regard to demand of scooter and cruelty on that account are absolutely false and mischievous. In fact, Birmati used to look extremely lonely and depressed and wanted to accompany me to my place of posting but since I had not been given any accommodation she could not accompany. That perhaps under the influence of her parents, she was under a mis-conception that I was intentionally avoiding to take her at the place of my posting. She had committed suicide in the state of depression and despiration. That in attempt to save her I and my mother received burns injuries and that s/Shri Ranjit Singh, Ex-sarpanch, Hari Singh, Lamberdar, Het Ram s/o Kishan Chand, Chirnaji Lal of our village were sent to her parents for information. That relations after reaching village Bhorkara, where police was already informed and was present, the complainant and his relations were fully satisfied that she had committed suicide and went back to their village but subsequently being mis- guided and after consultation in order to extract, foisted themselves a false case.” In defence accused examined Smt. Bimla as DW-1. Bimla stated that she is wife of Sunder. This witness was examined to dislodge the testimony of Prabha PW-1 that she was wife of younger brother of husband of Bimla. Jawala Parshad was examined as DW-2. He also staed that Raj Bala is daughter of Ganpat Singh of village Dungerwal, District Rewari and she is not known by the name of Prabha. Counsel for the appellant has submitted Virender Singh was serving in Army and it was mandatory for the trial Court to follow the procedure prescribed under Section 475 Cr.P.C. and ought to have sought permission from the Command Officer for putting the accused on trial in Civil Court. Counsel has submitted that under the Army Act, the first option vests in the Army Authorities to try the appellant Virender. It has nowhere come in the record that Virender accused appellant, husband of the deceased was employed in the Army. 7 Criminal Appeal No.677-SB of 1997 Counsel for the appellant has relied upon letter dated 7th May, 1997 addressed by the Command Officer to the Additional Sessions Judge, Sessions Court, Gurgaon, where a request was made that LN Virender Singh bearing No.4181708-L is in judicial custody of District Judge, Gurgaon for trial and outcome of the case be intimated to the Army Authorities. An order passed on the case file on 15th February, 1997 also depicts that personal facts of LN Virender Singh were called from the Command Officer. Even if it is assumed that appellant Virender was employed in Army, the Command Officer of the Unit was aware regarding judicial custody of the appellant Virender in the present case. In ‘Balbir Singh v. State of Punjab’ 1995 (1) RCR 171, Hon’ble Apex Court held as under: “27. … … … It is the substance and not the form of notice which is relevant and important. All that the law envisages is that the authorities under the Act must be made fully aware of the nature of offence, status of the victim and the pendency of the criminal case against a member of the force on ‘active service’, so that the authorities under the Act may exercise their option whether or not to try the accused by a Court martial. Where full and complete “information” is provided to the authorities, the requirement of law would stand complied with, irrespective of the fact whether the information was given by way of a notice or otherwise.” The above said view propounded by the Hon’ble Apex Court was also followed by this Court in ‘Union of India v. State of Punjab’ 1999 (3) RCR (Criminal) 365 and it was observed as under: “7. … … … The third principle laid down was that when an offence has been allegedly committed by a person in active service of the military and both the Ordinary Criminal Courts and Court Martial have the concurrent jurisdiction, the first option lies with the Military Authorities to try the accused but if the Military Authorities had surrendered the accused to 8 Criminal Appeal No.677-SB of 1997 the Ordinary Criminal Courts, it will be deemed that Military Authorities had exercised its option not to try the accused and if the accused is tried and convicted by the ordinary courts, such a trial will not be vitiated.” Therefore, this contention raised by counsel for the appellant no longer survives in view of the legal position noticed above. The prosecution has projected PW-1 Prabha as eye witness of the occurrence. The trial Court formulated a view that the prosecution case is not materially affected and there is no ground to discard the testimony of Prabha PW-1. In case the trial Court had believed Prabha then the appellants ought to have been convicted for offence under Section 302 IPC. The trial Court without going into this aspect had convicted both the appellants under Section 304-B IPC. Thus, a duty is cast upon this Court to examine the evidentiary value of the testimony of PW-1 Prabha. In the FIR, complainant stated that Prabha had informed that Sona and her son Virender had given beating and had burnt Birmati by pouring kerosene oil. Thus, FIR stated that the information was relayed by Prabha but nowhere stated that Prabha was an eye witness of the occurrence. PW-1 Prabha claimed herself to be daughter of Ganpat Singh and resident of village Dungarwas. She had further stated that she was married in village Nayagaon Mumtajpur. She had stated that Birmati was her sister. In cross examination, she stated that she had not visited Birmati before the day of occurrence. She had visited Birmati on the day of occurrence for the first time. She further stated that neither Virender nor his mother Sona had ever visited her. She had not been able to specify as to how Birmati was related to her as sister. This witness further stated that her statement was recorded after ten days of the occurrence. She was confronted with her statement Ex.DA, where it was not stated 9 Criminal Appeal No.677-SB of 1997 that Sona had put Birmati on fire with a match stick. On all material aspects, she was confronted with her statement Ex.DA. She stated that the person, who recorded her statement was in police uniform and he enquired about two things, as to how Birmati is related to her and in what connection she had visited the house of Birmati. She is a chance witness, who had reached at the spot at the nick of the moment. Birmati was given beating in the Varandah of the house and the door of the house was open. This witness further stated that she was accompanied by her son aged 13 years. In the present case, occurrence had taken place on 9th May, 1994. The Investigating Officer PW-9 Puran Mal stated that Prabha was projected as an eye witness by the complainant party on 9th May, 1994. He tried to associate Prabha but she was not available. The Investigating Officer further stated that statement of Prabha was recorded after ten days for the first time on 19th May, 1994. If Prabha was the eye witness, it was incumbent upon her to give her version at the first instance. Thus, this Court is of the view that taking into consideration, what has been stated above, it is not safe to rely upon PW-1 Prabha and she cannot be held as eye witness of the occurrence. Once the testimony of Prabha PW-1 is taken out of consideration, this Court is left with the testimony of PW-5 Surat Singh and PW-6 Krishan Kumar. Both of them have stated that right from the day one when the marriage was solemnized and before that, accused Virender was demanding scooter. PW-9 Puran Mal Investigating Officer in cross examination had admitted that Virender husband appellant and deceased Birmati were maintaining independent mess and residence. Otherwise also, demand of scooter was predominantly for the benefit of Virender. Furthermore, the view formulated above is supported by a Division Bench judgment of this Court rendered in ‘Baldev Kaur and 10 Criminal Appeal No.677-SB of 1997 another v. State of Punjab’ 2007 (2) RCR (Criminal) 665. The Division Bench in the above said judgment observed as under: “19. The case of Baldev Kaur appellant, so far demand, cruelty and harassment is concerned, is distinguishable as that of appellant Ranjit Singh. She is mother-in-law of the deceased. The statements of PW4 Bahadur Singh and PW.5 Gurmail Kaur are omnibus in relation to the harassment and mal-treatment by her. There are no specific instances attributed against her. The tenor of the evidence of the said witnesses suggests that even at the time of marriage, there was a demand only by Raghbir Singh, father-in-law (now deceased) and even after the marriage when the deceased had visited her parental house, after 7-8 days, then Rs.8000/-, the amount of “Shagun” was given to her, who had further given the same to the appellant Ranjit Singh, who was accompanying her. In the last, the demand in clear terms was of Maruti car. Baldev Kaur has nothing to do with the said demand, which is primarily for the use of accused Ranjit Singh. In Salamat Ali and others v. State of Bihar, 1997 SCC (Crl.) 842, it has been held that demand of scooter predominantly must have been raised by the husband. It cannot be expected that the father-in-law would be demanding a scooter for himself or that, the mother-in-law needed it for her use and acquitted the father-in-law and mother-in-law and convicted the husband. Thus, following the ratio laid down in Salamat Alis case (supra), accused- appellant Baldev Kaur deserves acquittal.” A similar view was also enunciated by a Single Judge of this Court in ‘Sanjiv Kumar v. State of Punjab’ 2007 (3) AICLR 181. Taking into consideration that Sona was having a separate residence and demand of scooter was for the benefit of husband, as a matter of abundant caution, this Court is of the view that benefit of doubt can be extended to Sona appellant. Hence, present appeal qua Sona is accepted. She is acquitted of the charges. 11 Criminal Appeal No.677-SB of 1997 However, in the present case, deceased had died within seven years of her marriage. Her death was in the circumstances other than normal. All ingredients of offence under Section 304-B IPC qua Virender appellant are proved and made out. At this stage, counsel for the appellant has submitted that Virender has been awarded ten years rigorous imprisonment. It is submitted that in the present case, occurrence had taken place in year 1994. The appellant Virender has already suffered a protracted trial of more than 15 years. It is further submitted that in the ordinary course of nature sentence more than minimum prescribed should not be awarded. Taking above submissions into consideration, sentence awarded upon the appellant Virender is reduced from ten years rigorous imprisonment to seven years rigorous imprisonment. With the modifications in sentence as mentioned above, present appeal qua appellant Virender is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE January 13, 2010 rps 12