Criminal Appeal No. 825-SB of 1997 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Appeal No. 825-SB of 1997 Date of Decision: 8.4.2008 Parkash and Another …Appellants Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Ms. Meenakshi, Advocate for the appellants. Mr. Ashok Kumar Jindal, Assistant Advocate General, Haryana, for the State. Kanwaljit Singh Ahluwalia, J. The present appeal has been preferred by Parkash son of Ram Singh and Shakhuntla Devi wife of Ram Singh. They have been convicted and sentenced under Section 498-A IPC by the Court of learned Additional Sessions Judge (I), Faridabad, to undergo rigorous imprisonment for two years and a fine of Rs.1,000/- each. In default of payment of fine, they were ordered further to undergo two months rigorous imprisonment. The appellants were named as accused along with Radha Charan, brother of Parkash, appellant and Santo wife of Radha Charan in case FIR No. 326 dated 17.10.1996 registered at Police Station Hodal Criminal Appeal No. 825-SB of 1997 2 under Section 498-A and 304-B IPC. FIR in the present case was recorded at the instance of Nanak Chand who has stated that he was working as a Teacher and about 3½ years ago he had married his daughter Jagwati to Parkash, appellant, according to Hindu rites and he had given dowry according to his capacity which included utensils, Bed, Television, Sewing Machine and his daughter was harassed by her husband Parkash, Radha Charan, brother-in-law, Shakuntla, mother-in- law, Santo, sister-in-law (Jethani). They used to demand motorcycle/scooter and whenever his daughter used to visit him she narrated that accused used to beat her for not bringing motor cycle/scooter. It was further stated in the FIR that on 6.10.1996 his daughter Jagwati went to the house of his nephew to attend cremation and there she disclosed to the complainant that all the four accused demanded motor cycle and she should not return to the matrimonial home without scooter. The complainant stated that after he made his daughter understand she went back to village Ali Brahman and on 17.10.1996 he learnt that his daughter has been killed by the accused and she was pregnant for about five months and Parkash, appellant, was pressing for abortion. The matter was investigated. Report under Section 173 Cr.P.C. was submitted. Appellants were charged along with accused Santo and Radha Charan for the offence under Section 304-B and 498- A IPC. PW.1 Dr. Ramesh Leekha had conducted the autopsy on the dead body of Jagwati. He stated that viscera was sent to the Chemical Examiner and according to the doctor deceased died due to asphyxia. Criminal Appeal No. 825-SB of 1997 3 In cross-examination, he stated as under:- “It is wrong that I have coined asphyxia as the cause of death falsely today when no common poison was detected in the report of FSL. It is wrong that the deceased died a natural death”. PW.2 Ram Bhagat, Sub Inspector stated that he had prepared the report under Section 173 Cr.P.C. PW.3 Manoj Kumar, Constable, prepared the scaled site plan. PW.4 Nanak Chand, complainant, stated in the Court that on 6.10.1996 when his daughter came, she disclosed regarding the demand of motor cycle on the part of the appellants. It is stated by him that the marriage of deceased Jagwati was performed with Parkash on 27.5.1993, whereas the occurrence had taken place on 17.10.1996. PW.5 Rajender is the nephew of complainant PW.4 Nanak Chand. He also stated that on 6.10.1996 Jagwati had revealed that the accused were demanding motor cycle. PW.6 Chand Singh, Assistant Sub Inspector, proved statement Ex.PC of PW.4 Nanak Chand and FIR Ex.PC/2. Thereafter, prosecution evidence was closed. The accused were examined under Section 313 Cr.P.C. All the incriminating evidence was put to them. They denied the same. Appellant Parkash gave his explanation as under:- “Jagwati died a natural death. This case was planted by the family members of Jagwati for extorting money from us. My co-accused Radha Charan and Santo are residing separately from me. Criminal Appeal No. 825-SB of 1997 4 All of us have been falsely implicated in this case”. No witness was examined in defence. Learned Additional Sessions Judge (I), Faridabad acquitted the appellants for the offence under Section 304-B IPC and gave the following findings:- “16. After giving my careful thoughts to the arguments advanced by both the sides, I am of the clear opinion that none of the accused can be held guilty for the commission of offence under Section 304-B IPC because I agree with the learned defence counsel that prosecution has not been able to establish that Jagwati had died an unnatural death. As already noticed, in the copy of postmortem report, no external marks of injuries were noticed on the person of the deceased Jagwati and the doctors had failed to give her cause of death on 18.10.96 at the time of postmortem examination. In this background, the opinion of doctor Ramesh Leekha PW-1 in the witness-box before this Court for the first time that in the light of the report FSL he could say that she had died due to asphyxia is of no avail. The said report FSL simply states that the visceras gave negative tests for common poisons. How from this additional circumstance, it could be concluded that the deceased had died due to asphyxia is something which is beyond my comprehension. If it was so, then this opinion could ;be given even at the initial stage Criminal Appeal No. 825-SB of 1997 5 on 18.10.96 when postmortem examination was conducted. According to Modi’s Medical Jurisprudence, the tongue is protruded in most of the cases where death is there because of asphyxia and frothy and bloody mucus comes from the mouth and the nostrils. This is not the position in the present case. Then according to Modi’s Medical Jurisprudence, on internal side the right cavity of the heart in such cases is usually full with dark coloured clotted blood and the left cavity, the aorta and the pulmonary veins are empty. Contrarily, in the copy of postmortem report Ex.PA the right side of the heart was found empty and left side was found containing blood. Then brain also should be congested in such type of cases which is not the observation in the copy of the postmortem report Ex.PA. Still further, lungs in such cases should be found heavier with blood collected in the dependents parts if examined sometimes after death. Again there is no such finding in the copy of the postmortem report Ex.PA which simply shows that the lungs were healthy. It appears that doctor Ramesh Leekha PW-1 has had no sufficient experience and his opinion thus cannot be given much credence. If it was not a case of un- natural death, then very clearly the accused cannot be held guilty under Section 304-B IPC by raising the Criminal Appeal No. 825-SB of 1997 6 presumption with regard to dowry death via Section 113-B of Indian Evidence Act”. Learned trial Court further held that incident regarding 6.10.1996 is a concoction and gave a following well reasoned finding:- “…Both Nanak Chand PW-4 and Rajender PW-5 have not given any dates on which the accused persons had harassed Jagwati by raising the demand of motorcycle except that they have stated that on 6.10.1996 also disclosure to this effect was made in their presence by Jagwati. This incident of 6.10.96, however, does not inspire any confidence because according to these witnesses Jagwati had met them on that date in village Nonhera when she had come for offering condolence in the family. On the other hand, in the first information report lodged by her father Nanak Chand PW-4, it was specifically stated that she had come for offering condolence on 6.10.96 not in village Nonhera but in village Batari where his nephew was residing. Thus, this incident of 6.10.96 is clearly a concoction by the investigating agency with a view to make this court invoke presumption with regard to dowry death via section 113-B of Indian Evidence Act. Once this incident of 6.10.96 is discarded, then there is no evidence that the deceases was being subjected to harassment in connection with the demands of dowry soon before Criminal Appeal No. 825-SB of 1997 7 her death”. Co-accused of the appellants i.e. Radha Charan and Santo have also been acquitted. No appeal has been filed by the State to challenge the acquittal of present appellants, Radha Caharan and Santo under Section 304-B IPC. Even otherwise, a perusal of the findings of learned trial Court show that acquittal of the appellants for the offence under Section 304-B IPC cannot be said to be perverse. From the perusal of testimony of PW.4 Nanak Chand, it could be safely inferred that the appellants used to harass deceased Jagwati and, therefore, they are guilty of offence under Section 498-A IPC. I have heard Ms. Meenakshi, Advocate, appearing for the appellants. She has stated before me that the trial Court has already held that there has been an attempt on the part of PW.4 Nanak Chand, and PW.5 Rajender to concoct the incident of 6.10.1996. Therefore, they are not truthful witnesses and implicit reliance cannot be placed upon their testimony. She further stated that it is the case of natural death. Deceased Jagwati was married on 27.5.1993 and she died on 17.10.1996 after more than 3½ years of the marriage. It will be apposite to reproduce the entire examination-in-chief of PW.4 Nanak Chand, father of deceased Jagwati:- “Jagwati-deceased was my daughter. On 27.5.93 she was married to the accused Parkash present in the Court. Radha Charan accused is the elder brother of the said Parkash whereas Smt.Santo is the wife of the said Radha Charan and Smt.Shakuntla Devi is the mother of Parkash Criminal Appeal No. 825-SB of 1997 8 accused. All the four accused used to raise the demand of a motorcycle from my daughter and she used to tell us about the same whenever she came to our house. On 6.10.96 also my daughter Jagwati had come to our house for paying condolence on the death of the son of my nephew. Even at that time she had told me that all the four accused were raising the demand of motorcycle. She further told me that they were pressing her for carrying out abortion as she was carrying a pregnancy of 4/5 months. We, however, again sent to her matrimonial home after persuading her. On 17.10.96 I received intimation from village Khambi about the death of my daughter. We went to village Ali Brahman where my daughter was married and saw her dead body. Then I narrated this incident to the police by making statement Ex.PC which was signed by me after its contents were read over to me”. The incident regarding 6.10.1996 has been disbelieved by learned trial Court. Therefore, the only allegation which remain is that all the four accused used to raise demand of motor cycle from the daughter of PW.4 Nanak Chand, complainant. From the same evidence, benefit has been granted to co-accused of the appellants i.e. Radha Charan and Santo. There is no specific allegation against appellant Shakuntla. Criminal Appeal No. 825-SB of 1997 9 General and omnibus allegations have been leveled. Therefore, a witness whose credentials have been doubted by the trial Court cannot be relied and hence benefit of doubt is also to be extended to appellant Shakuntla Devi and hence, her appeal is accepted and she is acquitted of charges. However, Parkash is the husband of deceased Jagwati. He was beneficiary of the demand of motor cycle. Therefore, his conviction under Section 498-A IPC is maintained. However, Ms. Meenakshi, Advocate, appearing for the appellants, has stated that incident in the present case pertains to year 1996 and appellant Parkash has already suffered a protracted trial. Taking into consideration of the protracted trial, ends of justice will be fully met in case sentence of appellant Parkash is reduced from two years to one year and the sentence of fine is enhanced to Rs.10,000/-. In default of payment of fine, he is ordered to further undergo rigorous imprisonment for six months. The appeal is disposed off in above terms. (Kanwaljit Singh Ahluwalia) Judge April 8, 2008 “DK”