IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Misc. No. 54065 of 2008 and
Criminal Appeal No.832-DB of 2008
Date of Decision: November 25, 2008
Naresh Kumar ...........Appellant
Versus
The State of Haryana ......Respondent
Coram: Hon'ble Mr.Justice S.S.Saron
Hon'ble Mrs. Justice Sabina
Present: Mr.C.S.Kaushik, Advocate for the applicant-Naresh
Kumar (appellant)
Mr.Kartar Singh, Assistant Advocate General,Haryana
for the respondent-State
* * *
Crl.Appeal No. 832-DB of 2008
Admitted.
Crl.Misc. No. 54065 of 2008
Crl.Misc. application has been filed under Section 389 of
the Code of Criminal Procedure (for short `Cr.P.C.) seeking suspension of
sentence and fine and for releasing the applicant-appellant on bail during
the pendency of the appeal.
Heard learned counsel for the applicant-appellant.
Learned counsel has submitted that the conviction of the
applicant-appellant for the offence under Section 302 of the Indian Penal
Code (for short `IPC’) has been erroneously passed and in any case is based
only on circumstantial evidence. In fact, the guilt of the appellant-
applicant has not been established beyond shadow of reasonable doubt so
as to convict and sentence him. It is submitted that Smt. Asha Lata
Criminal Misc. No. 54065 of 2008 and
Criminal Appeal No.832-DB of 2008 -2-
(deceased) had committed suicide by hanging herself. A reference has been
made to the deposition of Dr.Vedpal, Medical Officer T.B. Hospital, Rohtak
(PW5), who conducted the post mortem examination of Smt. Asha
(deceased) along with Dr.Kumud Sharma, Medical Officer, Government
Hospital, Jhajjar.
Learned counsel has also placed reliance on the case
titled Mulak Raj and others vs. State of Haryana AIR 1996 Supreme Court
2868 to contend that in case of dowry death, strong suspicion cannot take
the place of proof. It is submitted that in the said case, a homicidal death is
said to have occurred after two months of the marriage of the deceased
therein and all the accused in the said case were acquitted by giving them
the benefit of doubt. Therefore, it is submitted that as the offence against
the appellant-applicant is not made out, the applicant-appellant is entitled
to the concession of suspension of his sentence during the pendency of the
appeal.
We have given our thoughtful consideration to the
contentions of the learned counsel, however, find no merit in the same.
The marriage between Smt. Asha Lata (deceased) and
Naresh Kumar (appellant) was solemnized on 11.2.2005. Smt.Asha Lata
(deceased) was aged about 20 years at the time of marriage. The father of
the deceased, namely, Daya Kishan lodged the FIR alleging that he had
given dowry to his daughter Asha beyond his capacity and status but
despite that the accused were not satisfied with the same. The accused
started harassing his daughter by demanding more dowry on many
occasions. They fulfilled their demands but they were demanding
Criminal Misc. No. 54065 of 2008 and
Criminal Appeal No.832-DB of 2008 -3-
more. His (complainant’s) daughter was harassed by Naresh Kumar
(appellant) her husband and other relatives ( who have since been acquitted
by the learned trial Court). On 19.7.2005 at about 1.30 P.M.,
Daya Kishan- complainant, father of the deceased was called by the
father-in-law of the deceased at his house by way of a telephonic message
sent to him. The complainant along with his brother Raj Kumar went to
village Sehlanga, the matrimonial home of his daughter where his daughter
was found lying dead. The complainant suspected that the complainant was
killed by the accused. He reported the matter to the police of Police Post
Salhawas, Jhajjar by filing a complaint (Ex.PB) on the basis of which FIR
(Ex.PB/1) for the offence punishable under Section 304-B/34 IPC was
registered. The learned trial Court vide order dated 10.1.2007 charged the
accused for the offence under Sections 498-A, 302, 304-B and 406 all read
with Section 34 IPC. After considering the evidence and material on
record, the learned trial Court has convicted and sentenced the applicant-
appellant for the offence under Section 302 IPC. Reliance has also been
placed on the deposition of Dr. Vedpal (PW5) who conducted the post
mortem examination on the dead body of Smt. Asha. It was opined that the
cause of death in the opinion of the doctors, who conducted the post
mortem examination in this case was due to asphyxia as a result of manual
throttling which was ante mortem in nature and sufficient to cause death in
the ordinary course of nature. The defence set up by the appellant that
Smt.Asha Lata (deceased) had committed suicide by hanging herself from
the ceiling fan was not accepted by the learned trial Court. It was observed
that if the evidence of the prosecution was considered as a whole, it goes to
prove that Smt. Asha Lata (deceased) was murdered by her husband, who
Criminal Misc. No. 54065 of 2008 and
Criminal Appeal No.832-DB of 2008 -4-
was not happy with the quantum of dowry that she had brought in the
marriage. It was also observed that the accused had not put his defence
with reasonable hypothesis. He had not shown the circumstances as to how
a young bride had died within a period of five months of her marriage.
At this stage, it would be pre-mature to comment and go
into the findings and conclusions reached at by the learned trial Court. The
case of Mulak Raj (supra) is based on the facts and circumstances of the
said case and is not applicable to the present case. In any case, the same
would also require consideration at the time of final hearing. This is moreso
for the reason that the present is a case where death is said to have been
caused by manual throttling/strangulation and the learned trial Court has
held that this was done by the husband (appellant-applicant) only.
Considering the facts and circumstances of the present
case and the fact that the death of Smt. Asha Lata had occurred within 5
months of her marriage; besides, the trial Court has passed its order only
recently on 31.10.2008, it would be in-expedient at this stage to suspend the
sentence.
For the foregoing reasons, we find no merit in the
Crl.Misc. application. Accordingly, the Crl.Misc. application seeking
suspension of sentence is dismissed.
( S.S.Saron )
Judge
( Sabina )
Judge
November 25, 2008
arya