Crl. Appeal No. 850-SB of 2000 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 850 of 2000 Date of decision: 23.12.2010 1. Sukhbir Singh s/o Telu Ram 2. Suresh s/o Sukhbir Singh, 3. Naresh s/o Sukhbir Singh, 4. Smt. Santosh w/o Sukhbir Singh, All rs/o Garhi Birbal, District Karnal. ..... Appellants. Versus The State of Haryana ..... Respondent. CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL Present:- Mr.Vikram Singh, Advocate with Mr. Rahul Vats, Advocate for the appellants. Mr.Sukhvinder Singh Nara, Sr. DAG, Haryana for the respondent-State. M. Jeyapaul, J(Oral). The father-in-law, husband, brother-in-law and mother-in-law of the deceased, ranked as accused 1 to 4 faced the trial for offences punishable under Sections 498-A and 304-B of the Indian Penal Code and were convicted thereunder and were sentenced to undergo rigorous imprisonment for seven years and two years each respectively. The fine also was imposed with usual default sentence. They have preferred the present appeal. Crl. Appeal No. 850-SB of 2000 --2-- 2. The case in brief of the prosecution is as follows:- (a) The deceased Pushpa is the daughter of PW-1 Puran Chand and sister of PW-2 Subhash. The marriage between the second accused/appellant Suresh and Pushpa took place on 04.07.1991 according to Hindu rites and Customs. After 1-1/2 years of the marriage, PW-1 and PW-2 visited the house of the accused. They were informed by the deceased Pushpa that she had been harassed by the accused demanding dowry of Rs.25,000/-. PW-2 paid a sum of Rs.4000/- towards the demand made by the accused. He also assured that he would pay the remaining amount within a short span of time. When PW-2 visited the house of the accused again, he was informed by the deceased Pushpa that the accused insisted upon the payment of dowry as otherwise she had to live only in the parental home. 3. A panchayat was convened by PW-2. The members of the Panchayat visited the house of the accused alongwith PW- 2. A compromise was struck whereunder it was decided that the second accused/appellant and Pushpa should reside at Karnal with the financial assistance of PW-2. The second accused/appellant and Pushpa lived for about 3-4 years at Karnal on an undertaking given by the accused that they would properly take care of Pushpa and no demand of dowry would be made. Pushpa was sent back alongwith the second accused/appellant to her matrimonial home. Crl. Appeal No. 850-SB of 2000 --3-- 4. After 15 days PW-1 and PW-2 proceeded to the house of the accused. Pushpa informed them that the accused continued harassment demanding dowry. She also informed that she was beaten by the accused. In spite of the persuasion made by PW-3, the accused party asked PW-1 to get away from their house. 5. PW-2 proceeded to the house of the accused after two days. Pushpa was not found in the matrimonial home. He was informed that Pushpa had left for village Sirsal. They made a search. The dead body of Pushpa was found in a canal near the bridge. PW-1 and PW-2 identified the dead body of the deceased, Pushpa. PW-1 lodged a complaint with PW-10. A formal First Information Report was registered based thereupon. 6. Dr. Vijay Pal, PW-4 conducted post mortem examination on the dead body of Pushpa. As the dead body was in an advanced stage of putrefaction, he could not ascertain the cause of death. But poison was not detected in the viscera sent for examination. 7. PW-8 arrested the accused and sent for judicial remand. He having examined the witnesses and completed the investigation, filed final report against all the accused. Crl. Appeal No. 850-SB of 2000 --4-- 8. The trial Court having placed complete reliance upon the evidence of PW-1 and PW-2 corroborated by PW-3, returned a verdict of conviction against all the accused. The trial Court rejected the defence plea that the marriage was solemnized on 04.07.1990 as evident by Ex.DD and spoken to by DW-2, who is none-else than the brother-in-law of PW-1. 9. The learned Counsel appearing for the appellants would submit that there is a material contradiction as to the date when the first demand of dowry was made by the accused. PW-1 would state that the demand of payment of dowry was made one month after the marriage whereas PW-2 would state that such a demand was made after 1-1/2 years of the marriage. It is his submission that even assuming for the sake of arguments that there was a demand of dowry made by the accused after 1/1-2 years of marriage, the accused cannot be implicated for the same, as it was made about four years prior to the occurrence. As there was no connection between the demand, which was allegedly made after 1/1-2 years of the marriage and the death of Pushpa, the accused cannot be convicted under Section 304-B of the Indian Penal Code, he would submit. The evidence would go to show that the husband and wife lived peacefully when they set up a separate establishment at Karnal for about 3-4 years. Therefore, there is no reason for Pushpa to commit suicide within 15 days from the date of their departure from Karnal. Crl. Appeal No. 850-SB of 2000 --5-- When the marriage itself was solemnized way back on 4.7.1990, there is no presumption under Section 113-B of the Indian Evidence Act, could be invoked. Resultantly, the accused cannot be convicted under Section 304-B of the Indian Penal Code. 10. The learned Senior Deputy Advocate General, appearing for the respondent-State would submit that PW-1 and PW-2 have cogently spoken to the persistent demand of dowry made by the accused. There is evidence to show that PW-1 parted with a sum of Rs.4000/- towards the larger amount of Rs.25000/- demanded by the accused. It is his further submission that Ex.DD, the alleged invitation circulated by PW- 1 to his relatives was rightly rejected by the trial Court as the scribe was not examined and the person , who was in fact involved in circulation of the handwritten invitation card was not examined. Therefore it is his submission that the prosecution has established that the marriage was performed on 4.7.1991 and the death was occasioned due to persistent demand of dowry made by the accused followed by harassment and cruelty. 11. PW-1 the father of the victim Pushpa has deposed before the trial Court that a demand of Rs.25,000/- as dowry was made by the accused after 1-1/2 years of the marriage. When he visited the house of the accused, he parted with a sum of Rs.4000/- to the accused. The non-payment of the remaining Crl. Appeal No. 850-SB of 2000 --6-- amount demanded by the accused was the root cause for the trouble in the matrimonial life of Pushpa. The evidence of PW-2, brother of deceased Pushpa, would go to establish that he also visited the house of the accused. He was informed by Pushpa in her matrimonial home that a demand of Rs.25,000/- was made by the accused. 12. PW-1 and PW-2 and the member of the panchayat PW-3 have spoken to the fact that Pushpa had separated from her matrimonial home alongwith her husband, the second accused/appellant as she could not live peacefully. There had been a panchayat and in that panchayat it was decided that Pushpa and her husband, the second appellant herein should reside at Karnal with the financial assistance of PW-1. It is true that there was no remarkable occurrence that took place during their stay at Karnal in a separate establishment. But immediately after her return to the matrimonial home, the accused had made a demand and harassed Pushpa. PW-1 and PW-2 have spoken to the fact that Pushpa was harassed for the continued demand of dowry by the accused. 13. The evidence of PW-1, PW-2 and PW-10 would disclose that the dead body of Pushpa was found near a canal on 7.10. 1997. Of course Dr. Vijay Pal could not come out with any definite opinion as to the cause of death of Pushpa but the fact remains that Pushpa had died in an abnormal circumstances. Crl. Appeal No. 850-SB of 2000 --7-- 14. In my considered view, the trial Court has rightly rejected Ex.DD, the alleged invitation circulated to DW-2, who is none-other than the husband of the sister of PW-1, as scribe of the said document or the person, who circulated the invitation to DW-2 was not examined. I find that there is one more reason to reject the evidence of DW-2, who has deposed in the background of Ex.DD. It is found that DW-2 is the brother-in-law of PW-1. PW-1 has completely distanced himself from his sister Savitri. The very fact that DW-2 has come forward to speak against the version of PW-1 and PW-2 and that PW-1 had distanced himself from his own sister, speaks of the hardened relationship of PW-1 and DW-2. No wonder DW-2 has come out with a contradictory version as to the date of marriage of Pushpa with the second appellant. The prosecution has established that the marriage of Pushpa with Suresh, accused/appellant was performed on 4.7.1991 and that the death of Pushpa has occurred within seven years of her marriage. 15. One important aspect has not been taken note of by the trial Court while convicting the accused for the offences punishable under Sections 304-B and 498-A of the Indian Penal Code. PW-1 and PW-2 have come forward with a version that all the accused demanded a sum of Rs.25,000/-. They also in one voice said that Pushpa had to live in her parental home, if the Crl. Appeal No. 850-SB of 2000 --8-- demand of dowry was not met by PW-1. Such a version of PW-1 and PW-2 is found to be artificial. PW-1 and PW-2 have stated in general that all the accused demanded dowry and committed cruelty. It is surprising to find that the prosecution has come out with a case that Naresh, 3rd accused/appellant aged 24 years also joined his parents in demanding a sum of Rs.25,000/- from PW-1. In view of the above, I find that the prosecution has not established its case beyond reasonable doubt as to the individual overreact of accused no.1/ Ist appellant, accused no.3/ 3rd appellant and accused no.4/4th appellant as to the demand of dowry and the harassement alleged to have been committed by them. Therefore the first accused/appellant, third accused/3rd appellant and fourth accused/4th appellant will have to be relieved of the charges under Sections 304-B and 498-A of the Indian Penal Code. 16. Of course there is some discrepancy in the evidence of PW-1 and PW-2 as to the exact period during which the demand of dowry was made. But one aspect is very clear from the evidence that there was a demand of dowry and the payment was consistently insisted by the second accused/appellant except the period during which Pushpa lived with her husband for 3-4 years at Karnal. The remaining period of the matrimonial life of Pushpa was tainted by demand of dowry and harassement. Therefore the minor discrepancy in the evidence of PW-1 and Crl. Appeal No. 850-SB of 2000 --9-- PW-2 as to the exact period during which the first demand of dowry was made, does not go to the root of the case. 17. It is not as if a demand was made in 1992 and thereafter the demand was not pursued by the second accused- appellant. There is evidence to show that the demand of dowry and the harassment continued. That was the information shared by the victim Pushpa with PW-1, the father and PW-2 her brother. Therefore the submission made by the learned Counsel appearing for the appellants that the prosecution has not established that there was a demand of dowry soon before the death was not established stands rejected. 18. The learned Counsel appearing for the appellants cited a decision of this Court in Hardev Singh @ Gurdev Singh v. State of Punjab 2004(1) RCR (Criminal)1004. On a perusal of the said case, it is found that the demand of dowry was made soon after the marriage and not soon before the death of the victim. The suicide was committed by the victim in the said case after six long years of marriage. There was also evidence to show that the husband and wife maintained a very cordial relationship during the said period. In view of the above, the Court held that neither a case under Section 304-B of the Indian Penal Code nor a case under Section 306 of the Indian Peal Code was made out. The above circumstances of the said case would not apply to the facts of the present case. Crl. Appeal No. 850-SB of 2000 --10-- 19. Yet an another decision of this Court in Pale Ram v. State of Haryana, 2005(2) RCR (Criminal) 646 was cited by the learned Counsel appearing for the appellants. On a factual appreciation of the said case, it is found that the accused, who had not made any demand of dowry, allegedly made a demand after 5 years of the marriage. The Court observed in the above circumstances that such a version of the prosecution was not believable. Another factual aspect that the case also weighed in the mind of the Court while acquitting the accused for offence under Section 304-B of the Indian Penal Code. The letters written by the victim disclosed that she was very comfortably in staying at her in-laws' house. I find that the above decision rendered in the said circumstances would not apply to the facts of this case. 20. It is found that the prosecution has established that there was a persistent demand of dowry coupled with cruelty at the hands of 2nd accused/appellant. It has also been established that the occurrence had unfolded within seven years of the marriage of Pushpa with the 2nd accused/appellant. Therefore, I find that the trial Court has rightly convicted the 2nd accused/appellant, who was the husband of the victim Pushpa for offences under Sections 304-B and 498-A of the Indian Penal Code. As far as the other accused-appellants are concerned, the judgment of conviction recorded by the trial Court will have to be set aside. Crl. Appeal No. 850-SB of 2000 --11-- 21. In view of the above, the conviction recorded by the trial Court for the offences punishable under Sections 304-B and 498-A of the Indian Penal Code and the sentence imposed thereunder for the second accused-2nd appellant, is confirmed. But the conviction recorded for the offences punishable under Sections 304-B and 498-A of the Indian Penal Code and the sentence imposed thereunder on the 1st accused/1st appellant, 3rd accused/3rd appellant and 4th accused/4th appellant stand set aside. The fine amount, if any, paid by the 1st accused/appellant, 3rd accused/appellant and 4th accused/appellant shall be refunded to them against proper receipt. The bail bond, if any, executed by them shall stand cancelled. The appeal is allowed in part. The Chief Judicial Magistrate shall take necessary steps in accordance with the provisions of law, to comply with the judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure and compliance report be sent forthwith. 23.12.2010 ( M. Jeyapaul ) dinesh Judge Whether to be referred to the Reporters or not? ( Yes/No )