Crl.Appeal No. 927-SB of 2000 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision:19.1.2011 (I) Crl.Appeal No.927-SB of 2000 Raju @ Raj Pal ... Appellant versus State of Haryana ... Respondent (II) Crl.Revision No.1346 of 2000 Dheer Singh ... Petitioner versus Raju @ Raj Pal ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Baldev Singh, Sr.Advocate, with Mr.Anhul Singh, Advocate, for the appellant. Mr.Deepinder Singh Brar, Advocate, for the petitioner-revisionist. Mr.Raja Sharma, AAG, Haryana. ... JORA SINGH, J. Crl. Appeal No.927-SB of 2000 was preferred by Raju @ Raj Pal to impugn the judgment of conviction dated 17.8.2000 and order of sentence dated 19.8.2000 rendered by Additional Sessions Judge, Gurgaon, in Sessions Case No.70 of 28.11.1995, arising out of FIR No.614 dated 17.9.1995 under Section 306 IPC, Police Station Sadar, Gurgaon. By the said judgment, he was convicted under Section 304-B IPC and sentenced to undergo RI for 10 years. Crl.Revision No.1346 of 2000 was preferred by Dheer Singh, Crl.Appeal No. 927-SB of 2000 2 complainant, that impugned judgment may be suitably modified and maximum sentence may be awarded to the accused. Prosecution story, in brief, is that Dheer Singh, complainant, is the father of Manju (deceased). He had three sons and three daughters. His eldest daughter Manju, aged about 21/22 years, was married with Raju @ Raj Pal in the month of May, 1994. On 10.8.1995, Manju gave birth to a female child. After some time, female child had expired because she was not looked after properly after birth. After that, accused started misbehaving and maltreating Manju. His sister Dheero was also married in the same village, i.e., of Raju. At the time of Raksha Bandhan festival, son of his sister Dheero had paid some money to Manju but the payment was returned by Raju by saying that in future, she (Manju) is not to visit the house of Dheero. Manju was also given beatings. After that, his sister Dheero and her children used to visit the house of Manju to meet her but they were not allowed to meet Manju by Raju. On 6.9.1995, he had gone to the house of Manju, then she told him that she is not being looked after properly by her in-laws and she was not being allowed to meet Dheero and her children. After making her (Manju) to understand, he came back to his village. Today, i.e., 17.9.1995 at about 8/8.30 AM, Chander Pal, son of his sister, came and reported that dead body of Manju was recovered from the well. On receipt of information from Chander Pal, he along with his nephew Ashok Pal, Sher Singh and other family members and respectables had gone to Village Bandhwari. Dead body of Manju was found lying at the spot. After enquiry, he came to know that after birth of daughter, Raju started misbehaving and maltreating Manju and without any reason under the influence of liquor, he used to beat Manju. On 16.9.1995, Manju was given Crl.Appeal No. 927-SB of 2000 3 beatings by Raju and due to this reason, she has committed suicide. Written complaint (Ex.PE) dated 17.9.1995, thumb marked by the complainant, was presented before the police party headed by ASI Shakuntla, present at DLF Faridabad turning. After making endorsement at 5.00 PM, complaint was sent to the police station, on the basis of which, formal FIR (Ex.PE/2) was recorded at 5.35 PM. Special report was handed over to Ilaqa Magistrate on the same day at 6.55 PM. IO had gone to the spot where dead body of Manju was lying and after arranging Photographer, got clicked photographs. Inquest report (Ex.PH) was prepared. Rough site plan with correct marginal notes was prepared. Dead body was sent to the hospital for postmortem examination. After postmortem examination, parcel of viscera along with envelope was produced before the IO and the same was taken into police possession vide separate memo attested by the witnesses. Accused was arrested on 18.9.1995.After completion of investigation, accused was challaned. Accused was charged under Sections 304-B/498-A IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1Constable Sarwan Kumar stated that on 4.10.1995, after inspecting the spot, he had prepared scaled site plan (Ex.PB). PW2 B.R.Bhatia, Photographer, stated that on 17.9.1995, as per request of the police, he had taken photographs (Ex.P1 to Ex.P4). Negatives are from Ex.P5 to Ex.P8. PW3 Inspector Raj Singh stated that after completion of investigation, he prepared report under Section 173 Cr.P.C. Crl.Appeal No. 927-SB of 2000 4 PW4 Dheer Singh is the complainant and stated that his daughter Manju was married with Raju, r/o Village Bandhwari about 1-1/2 years back. Sufficient dowry was given as per his status. After marriage, Manju started residing at her in-laws house. After one year and four months of the marriage, she gave birth to a daughter. Accused used to beat her for want of dowry. He was demanding Rs.10,000/- along with scooter, refrigerator and other articles, but he was not in a position to fulfill the demand of the accused. This fact was brought to his notice by Manju when he had gone to meet her. Manju was not allowed to meet his sister married in the same village. 20 days earlier to the occurrence, he had gone to the house of Manju, then she told him that accused used to misbehave and maltreat her for bringing more dowry, i.e., scooter, fridge etc. On coming to know about the death of Manju, he had gone to the house of the accused. At that time, dead body of his daughter was lying in the house of the accused. Complaint (Ex.PE) was lodged with the police. PW5 HC Sardar Singh delivered special report to the Ilaqa Magistrate and has deposited sealed parcel in the office of FSL, Madhuban. PW6 Kamal Singh, Clerk in the office of SP, Gurgaon, stated that complaint at the instance of Sher Singh was received on 30.9.1995, copy of which is Ex.PF. Complaint (Ex.PG) on behalf of Ashok Pal was also received. PW7 Ashok Pal, nephew of the complainant, stated that Manju was married with Raju. Sufficient dowry was given by Dheer Singh as per his status. Once/twice, Manju came to her parental house and told the complainant in his presence that she was being harassed by her in-laws on account of dowry. Her in-laws are demanding fridge, scooter and Crl.Appeal No. 927-SB of 2000 5 Rs.10,000/-. Panchayat was convened 2/3 times. He was in the panchayat but in-laws of Manju had not agreed not to demand dowry. On 17.9.1995, he came to know about the death of Manju. After that, he had gone to the house of Raju along with complainant. Complaint (Ex.PG) was sent to the office of SP through registered post. PW8 ASI Shakuntla is the Investigating Officer. PW9 Dr. Suresh Bakshi on 18.9.1995 had conducted postmortem examination on the dead body of Manju. No external injury was noticed on the person of the deceased. There was no ligature mark around the neck. Cause of death as per FSL report was due to asphyxia as a result of drowning. After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that Manju had an accidental fall in the well and a false case was got registered against him after due deliberation in order to blackmail him. Complainant party was demanding huge amount for compromise. Complaint (Ex.PE) was written by Ashok Pal and he is the main person at whose instance case was got registered. Opportunity was given to lead defence evidence but no defence was led. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned Crl.Appeal No. 927-SB of 2000 6 State counsel, learned counsel for the revisionist-petitioner and have gone through the evidence on file. Learned defence counsel for the appellant argued that Manju was married with the appellant. Marriage was solemnised in the month of May, 1994, and from this wedlock, there was an issue. Occurrence was on the intervening night of 16/17.9.1995. Dead body of Manju was noticed in the well in the morning of 17.9.1995. On receipt of information regarding the death of Manju, complainant party came and gave complaint in writing (Ex.PE), on the basis of which, case was registered. Allegation in complaint was that appellant used to misbehave and maltreat the deceased, In the complaint, there is not a word that appellant ever demanded dowry. Complainant in examination-in-chief stated that complaint (Ex.PE) was lodged with the police but while appearing in Court as PW4, then stated that appellant used to misbehave and maltreat the deceased for want of dowry. Appellant was demanding Rs.10,000/-, scooter and fridge along with other articles. Deceased was not allowed to visit the house of his sister, married in the same village. Unnatural death within 7 years from the date of marriage, but dead body was not recovered from the house of the appellant. To convict the appellant under Section 304-B IPC, third ingredient is missing. In the complaint (Ex.PE), there is not a word that appellant used to misbehave and maltreat the deceased for want of dowry soon before the death but in Court, complainant stated that appellant used to misbehave and maltreat the deceased for want of dowry. Rs.10,000/- along with scooter, fridge and other articles, was being demanded by the appellant. When he failed to fulfill the demand of the appellant, then appellant started misbehaving and maltreating the deceased for want of dowry. But Crl.Appeal No. 927-SB of 2000 7 statement of the complainant in Court is contrary to the written complaint (Ex.PE). After complainant party came to know about the death of deceased, then complainant along with Ashok Pal, Sher Singh and other family members and respectables had gone to the house of the appellant. Dead body was found lying in the house of the appellant. Intimation was given to the police in view of written complaint (Ex.PE). Police came and prepared inquest report. While preparing inquest report, statement of Ashok Pal was recorded. Ashok Pal while appearing as PW7, then admitted his signatures on the statement but in the statement of Ashok Pal recorded during inquest proceedings, there is not a word that appellant at any stage demanded dowry or he used to misbehave or maltreat the deceased for want of dowry. Ashok Pal is the nephew of the complainant. Complainant was also present at the time of inquest proceedings. Inquest report was thumb marked by the complainant but he has not stated a word that there was a panchayat and in that panchayat, Ashok Pal was present. Ashok Pal when appeared in Court, then stated that on 2/3 times, there was panchayat and in that panchayat, he was present. Ashok Pal in Court stated that appellant was demanding scooter, fridge and Rs.10,000/-. In cross-examination, Ashok Pal admitted that he was present at the time of inquest. Then stated that his statement under Section 161 Cr.p.C. was not recorded. But this fact is not correct one. Statement of Ashok Pal under Section 161 Cr.P.C. was recorded and this fact is clear from the statement of the IO. At the time of inquest, Ashok Pal did not state a word that appellant used to misbehave and maltreat the deceased for want of dowry and there was panchayat and before Panchayat, appellant had not given undertaking that in future, he is not to misbehave and maltreat the deceased. Real sister of the complainant Crl.Appeal No. 927-SB of 2000 8 was married in the village of the appellant. She was the best witness to state as to whether appellant used to misbehave or maltreat the deceased because she (sister of the complainant) and her children used to visit the house of the deceased. Before the present occurrence, there was no complaint to any authority. There was no panchayat. Complaint in writing (Ex.PE) was handed over to the police but complainant and his nephew Ashok Pal are not owning the complaint. Argued that the doctor, who conducted the postmortem examination, simply stated that no external mark of injury was noticed on the person of the deceased. There was no ligature mark around the neck. Death was due to drowning. Doctor did not state as to whether death was accidental, suicidal or homicidal. Well, from which the dead body was recovered, was at a distance of 1 killa or 235 feet from the house of the appellant. So, possibility of accidental fall cannot be ruled out. In case, appellant used to misbehave or maltreat the deceased for want of dowry, then this fact should have been mentioned in the written complaint (Ex.PE) dated 17.9.1995. Learned State counsel argued that complainant is not well educated. When he came to know about the death of his daughter, then he became nervous. While appearing in Court, then complainant stated that his thumb mark was obtained on the complaint (Ex.PE), which was written by the police. If there was no dispute amongst the appellant and the deceased, then there was no idea to commit suicide. Well, from which the dead body was recovered, was at a distance of 1 killa or 235 feet from the house of the appellant. During night time, there was no idea to go towards the well. No question of accidental fall. In fact, in view of the statements of complainant and Ashok Pal, soon before the death, deceased was tortured for want of Crl.Appeal No. 927-SB of 2000 9 dowry. On account of harassment at the hands of the appellant, deceased has committed suicide by jumping into the well. Undisputedly, Manju, aged about 21/22 years, daughter of Dheer Singh, was married with the appellant. Marriage was solemnised in the month of May, 1994. After marriage, Manju started residing with the appellant and from this wedlock, she gave birth to a female child on 10.8.1995. Sometime after the birth, female child had expired. Allegation of the complainant was that after marriage, whenever Manju came, then told that she was harassed for want of dowry by the appellant. Appellant demanded Rs.10,000/-, scooter, fridge and other articles but complainant party was not in a position to fulfill the demand of the appellant. When complainant party failed to oblige the appellant, the appellant started giving beatings to the deceased. Deceased was tortured for want of dowry. On account of harassment soon before the death for want of dowry, Manju had committed suicide, whereas defence version of the appellant was that there was no demand of dowry at any stage. Deceased was not tortured for want of dowry. In fact, death was accidental by fall in the well. Dheero, real sister of Dheer Singh, complainant, was married in the same village, i.e., village of the appellant. Dheero and her children used to visit the house of the deceased, but appellant did not allow them to meet the deceased. At one stage when there was Raksha Bandhan festival, then children of Dheero gave payment to the deceased, but payment was returned by the appellant. That means, appellant was not having cordial relations with Dheero and her family. Due to this reason, there is a possibility of suicide. Well is near the house of the appellant. So, during night time, deceased was expected to go towards the well. Possibility of accidental fall cannot be ruled out. When Crl.Appeal No. 927-SB of 2000 10 there are two versions, then question is which version is probable. Evidence on the file shows that in the morning on 17.9.1995, dead body of Manju was noticed lying in the well. Then Chander Pal informed the complainant party regarding the death of Manju. On receipt of information, Dheer Singh, complainant along with Ashok Pal, Sher Singh and other relatives and family members had gone to the house of the appellant. Dead body of Manju was noticed lying in the house of the appellant. Complaint (Ex.PE) was presented before the police, while present near the DLF Faridabad turning. After making endorsement at 5.00 PM, complaint was sent to the police station, on the basis of which, formal FIR was recorded. After that, IO along with other police officials had gone to the spot, where dead body was lying. Inquest report was prepared. Complainant while appearing as PW4, then in examination-in-chief stated that complaint (Ex.PE) was lodged and the same was sent to the police station but in Ex.PE, there is no allegation regarding demand of cash, scooter, fridge or any other article. Allegation of complainant in the complaint (Ex.PE) was that at the time of marriage in the month of May, 1994, sufficient dowry was given and on 10.8.1995, deceased gave birth to a daughter but after some time, minor daughter had expired because she was not looked after properly. In Ex.PE, not a word that minor daughter was not looked after properly by the appellant or his family members. Simple allegation in the complaint (Ex.PE) was that after death of the minor daughter, appellant started harassing the deceased and some time, appellant gave beatings to the deceased. Dheero, sister of the complainant, was also married in the same village. At the time of Raksha Bandhan festival, son of Dheero gave some payment to the deceased but that payment was returned Crl.Appeal No. 927-SB of 2000 11 by the appellant. Deceased was also directed that she was not to visit the house of Dheero. Deceased was given beatings. When ever, Dheero or her children had gone to the house of the appellant to meet the deceased, then they were not allowed to meet her by the appellant. On 6.9.1995, complainant had gone to the house of the deceased, then she told him that she was not being looked after properly. Secondly, she was not being allowed to visit the house of Dheero. Complainant when appeared as PW4, then changed his version by saying that about 1-1/2 years back, Manju was married with Raju. 1 year and 4 months after the marriage, Manju gave birth to a daughter. Then stated that appellant used to beat Manju for not bringing sufficient dowry. Appellant demanded Rs.10,000/- in cash, one scooter, refrigerator and many other articles. He was not in a position to fulfill the demand of the appellant and this fact was disclosed to him when he had gone to the house of Manju at the time of Raksha Bandhan. Manju was not allowed to visit his house after marriage. 20 days earlier to the occurrence, Manju told him that appellant used to misbehave and maltreat her for want of dowry, i.e., scooter, fridge, cash etc. Information regarding death of Manju was given by Chander Pal to the complainant. After that, complainant along with Ashok Pal, Sher Singh and others had gone to the house of the appellant, where dead body of his daughter was lying. Complaint (Ex.PE) was lodged with the police. In cross-examination, complainant stated that complaint (Ex.PE) was written by the police but his thumb impression was obtained on the same. Then stated that complaint was written by ASI Shakuntla. After attending cremation, they had gone to the police station. Inquest was not prepared in his presence. He further said that before cremation, police came Crl.Appeal No. 927-SB of 2000 12 and had seen the dead body. At that time, Ashok Pal was also present. After inspecting the dead body, his thumb impression was obtained by the police. Signatures of Ashok Pal were also obtained by the police. Ashok Pal is educated. Complaint by ASI Shakuntla was written at 5.45 PM in the police station. His brother-in-law and his sons were also present in the house of the appellant. Further admitted that in the complaint (Ex.PE), there is no reference of dowry etc. Then stated that said facts were narrated to the police but the same were not recorded by the police. Complainant admitted that in the complaint (Ex.PE), no reference that in-laws of the deceased were harassing her and appellant used to beat the deceased for bringing less dowry. Complainant in examination-in-chief or cross-examination has not stated a word that there was a panchayat and in the panchayat, Ashok Pal was present. Complainant admitted that no complaint by his sister Dheero married in the same village that appellant or his family members used to misbehave or maltreat the deceased for want of dowry. If appellant or his family members used to misbehave of maltreat the deceased and this fact was in the knowledge of Dheer Singh, complainant, then in the complaint (Ex.PE), he should have disclosed all these facts. There was no reason not to disclose about demand of dowry, harassment or ill treatment. This fact is an admitted one that complainant was present when inquest was prepared. Inquest was thumb marked by the complainant but at that time also, no allegation regarding dowry or harassment. No complaint against police officials that his thumb impressions obtained on Ex.PE forcibly or by misrepresentation. PW7 Ashok Pal is the nephew of the complainant and stated Crl.Appeal No. 927-SB of 2000 13 that on one or two times, Manju when came to her parental house, then told before him that she was being harassed for want to dowry by her husband, in-laws and one Likhi Ram, uncle of her husband. They were demanding scooter, fridge and Rs.10,000/-. Panchayat was convened. Once or twice, he had gone to the house of the appellant along with the complainant. In cross-examination, Ashok Pal admitted that he is graduate and admitted his signatures at Mark `A' and Mark `B', i.e., on his statement recorded during inquest. Again stated that his statement was not recorded by the police during inquest. Lastly stated that his statement was not recorded by the police but statement of Ashok Pal is contrary to the statement of Dheer Singh, complainant, and complaint (Ex.PE). File shows that when complaint (Ex.PE) was moved by the complainant, then at that time, Ashok Pal was present with the complainant. When inquest was prepared, then statement of Ashok Pal was also recorded. Ashok Pal admitted his signatures at Mark `A' and Mark `B', but no complaint regarding demand of dowry at that stage. According to these witnesses, 2/3 times, deceased came to the house of the complainant, then disclosed regarding harassment for want of dowry by the appellant and his family members, but this fact was not stated by Dheer Singh, complainant, that 2/3 times, deceased came in the presence of Ashok Pal and told that she was harassed for want of dowry by the appellant and his family members. Ashok Pal stated that there was a panchayat and 2/3 times, he had gone to the house of the appellant. But complainant did not state that there was a panchayat and Ashok Pal was present in the panchayat. Ashok Pal is graduate. He was present when inquest was prepared. Statement of Ashok Pal was recorded. He admitted his signatures on the statement but in Court, he has given a different Crl.Appeal No. 927-SB of 2000 14 version. Statement of Ashok Pal is contrary to the statement of Dheer Singh, complainant. Ashok Pal in the last lines of his cross-examination was confronted with the complaint (Ex.PG) alleged to have been sent by him to the police. But in Ex.PG also, no allegation of harassment. In JT 2000(7) SC 404, State of Haryana vs. Jai Parkash and others, six accused were tried for offences under Sections 306/498-A IPC. Four accused were acquitted and two were convicted. Improvements were found by the High Court in the testimonies of important witnesses. Accused convicted by the trial Court were also acquitted. In the present case also, there are number of improvements in the statements of the witnesses. In 2010(3) RCR