Criminal Appeal No. 436 DBA of 1994 and [1]
Criminal Appeal No.124-SB of 1994
IN THE HIGH COURT OF PUNJAB AND HARYNA AT CHANDIGARH.
Criminal Appeal No.436 DBA of 1994
State of Haryana .....Appellant
Vs.
Harnand and another .....Respondents.
AND
Criminal Appeal No.124 SB of 1994
Rajbir and another ......Appellants
Vs.
State of Haryana ......Respondent
Date of decision: 20.2.2009
CORAM: HON'BLE MR.JUSTICE UMA NATH SINGH.
HON'BLE MRS.JUSTICE DAYA CHAUDHARY.
Present: Ms.Naveen Malik, Addl. Advocate General, Haryana,
for the State.
Mr.S.K.Rana, Advocate for Harnand and Krishna
respondents in Crl.Appeal No. 436 DB A of 1994
and for Rajbir and Parkasho appellants in Crl.
Appeal No.124 SB of 1994.
*****
DAYA CHAUDHARY, J.
Both the appeals arise out of same judgment are being disposed
of together.
Crl. Appeal No.436 DBA of 1994 has been filed by State of
Haryana for setting aside the judgment dated 31.1.1994 passed by Addl.
Sessions Judge, Bhiwani, whereby Harnand and Smt.Krishna accused have
been acquitted of the charges for offence under Sections 304-B and 498-A
IPC, whereas Crl.Appeal No.124 SB of 1994 has been filed by Rajbir and
Smt. Parkasho alias Guddi accused-appellants, whereby they have been
convicted for offence under Sections 304B and 498-A IPC and sentenced to
Criminal Appeal No. 436 DBA of 1994 and [2]
Criminal Appeal No.124-SB of 1994
undergo RI for 7 years each for offence under Section 304-B IPC and to
undergo RI for 2 years for offence under Section 498-A and to pay a fine of
Rs.500/- each. In default of payment of fine, they were further directed to
undergo RI for a period of three months each. Both the sentences were
directed to run concurrently.
Briefly, the facts of the prosecution case are that marriage
between Raj Kala (since deceased) and Rajbir accused-appellant was
solemnized on 29.9.1990. Ram Kumar complainant, who is father of Raj
Kala, spent money in the marriage as per his capacity but the in-laws of Raj
Kala were never satisfied with the dowry given at the time of marriage. A
demand of scooter and cash amount of Rs.20-25 thousand was made by the
in-laws, which was narrated by Raj Kala to her parents at the time of her
visit on the occasion of ‘Teej’ festival. It was also told by Raj Kala to her
parents that if the said demand was not fulfilled by her parents, she would be
done to death. Raj Kala was sent back to her in-laws house by the parents.
On 13.9.1991, Raj Kala was found unconscious in the cotton
fields.Froth was coming out from her mouth as some poisonous substance
was allegedly administered to her. She was brought to the hospital, where
she was declared dead. Post mortem examination was conducted. Viscera
was sent to the Chemical Examiner. Ram Kumar, father of Raj Kala, lodged
a complaint with the police on 16.9.1991, on the basis of which formal FIR
No. 222 of 16.9.1991 (Exhibit PG/1) was registered for offence under
Sections 304-B/34 IPC at Police Station Sadar Bhiwani against the accused
persons who were arrested. After completion of investigation and other
formalities, the challan was presented in the Court of Ilaka Magistrate. The
case was committed to the Court of Sessions by Additional Chief Judicial
Criminal Appeal No. 436 DBA of 1994 and [3]
Criminal Appeal No.124-SB of 1994
Magistrate, Bhiwani vide order dated 20.11.1991. Copies of challan were
supplied to accused under Section 207 Cr.P.C. They were charge-sheeted
under sections 304-B and 498-A IPC to which they did not plead guilty and
claimed trial.
In order to prove its case, the prosecution examined Om Parkash
Patwari as PW-1 who proved the site plan Exhibit PA; Pirthvi Singh
Photographer as PW-2 who proved photographs Exhibits P1 to P3 and their
negatives as Exhibits P4 to P6; SI Inder Singh as PW-3, who prepared
report under Section 173 Cr.P.C.; ASI Lachhman Singh as PW-4 who
proved the inquest report Exhibit PE; Head Constable Satbir Singh as PW-5
who proved Exhibit P-7 a list of Kanyadan which was taken into possession
by police vide Memo Ex.PF; Ram Kumar, father of Raj Kala (deceased),
was examined as PW-6 and supported the prosecution version;
Dr.S.C.Aggarwal, Medical Officer,whoconducted the post-mortem
examination on the dead-body of Raj Kala appeared as PW-7; Smt. Sama
Kaur, mother of Raj Kala deceased, supported the prosecution version
appeared as PW-8 and ASI Maha Singh, Investigating Officer of this case,
proved the formal FIR Exhibit PG/1 recorded by MHC Satbir Singh,
appeared as PW-9.
Statements of the accused under Section 313 Cr,.P.C. were
recorded, to which, they denied the allegations of the prosecution and
pleaded innocence. In defence evidence, the accused produced Hari Kishan
as DW-1 and Harphul Singh as DW-2.
Mr.S.K.Rana,learned counsel appearing for accused-appellants,
argued that there is delay of three days in lodging the FIR as the alleged
occurrence took place on 13.9.1991. Raj Kala was taken to hospital for
Criminal Appeal No. 436 DBA of 1994 and [4]
Criminal Appeal No.124-SB of 1994
treatment and died there and the FIR was lodged on 16.9.1991 at about 4.30
p.m. It is emphasized that this long unexplained delay in lodging the first
information report creates a serious doubt about the truthfulness and
credibility of the prosecution case. It is also argued that PW-6 Ram Kumar
(complainant) and PW-8 Sama Kaur are parents of deceased Raj Kala and
despite giving intimation to them on 13.9.1991 itself, nobody turned up from
their side. It has also come in evidence that the complainant remained in
village Lohani throughout on 15.9.1991 and the FIR was registered on
16.9.1991 and that too at about 4.30 p.m. The delay in lodging the FIR has
remained unexplained throughout. It was also argued that the prosecution
story was silent with regard to time, place and the manner in which Raj
Kala was harassed and humiliated by the accused persons. There is nothing
in the evidence of the prosecution to show that the deceased was subjected
to cruelty or harassment on account of dowry just before her death. As per
medical evidence, viz. post-mortem report conducted by Dr.S.C.Aggarwal
PW-7, no injury was found on the person of deceased Raj Kala. She
consumed poisonous substance due to fear of her having illicit relation with
one Rejender son of Ram Kishan. It is also the case of the accused-appellants
that Rajender was reprimanded by Hari Kishan DW-1 in the presence of
others and was warned to behave properly in future but, despite that, the
extra marital relationship continued, and due to fear, the deceased might
have consumed poisonous substance. It is also contended that Rajbir,
husband of Raj Kala, was away to Bihar at the time of occurrence and the
best possible medical aid was given to the deceased.
It has further been argued that the conduct of the accused party
was bona fide from the very inception and even on the day of occurrence
Criminal Appeal No. 436 DBA of 1994 and [5]
Criminal Appeal No.124-SB of 1994
itself. It is an admitted case of Sama Kaur PW-8, that one person from
village Lohani came to her village Indiwali and informed her about the
death of Raj Kalan and also told that Raj Kala was in the hospital. Despite
acquiring that knowledge, neither the mother nor the father of the deceased
reached in the hospital on that very day and they reached there on the next
day, i.e. 14.9.1991. They remained there throughout on 15.9.1991 and the
FIR was lodged on 16.9.1991, that too at 4.30 p.m. It is also the case of the
accused-appellants that allegations of demand of dowry and cruelty, as
projected by complainant Ram Kumar PW-6, are totally untrustworthy and
co-accused Harnand and Smt. Krishna on the same set of allegations have
been acquitted by the trial Court. The reasoning of acquittal adopted by the
trial Court is lawful and squarely fortified by the evidence available on
record. It has been contended that the case of the accused-appellants has
further been supported by medical evidence as there was no mark of struggle
and injury on the person of deceased Raj Kala and possibility of pouring of
poisonous substance in the mouth of the deceased forcibly, cannot be
believed as there is no direct evidence available on the record showing
participation of any of the accused in the commission of crime. There is
only a presumption attached to Section 304 B IPC which has been pressed
into service in view of unnatural death of Raj Kalan. Moreover, no
incriminating evidence has been put to the accused in their statements
recorded under Section 313 Cr.P.C. and the evidence so put, cannot be relied
upon while convicting and sentencing the accused persons.
Learned counsel for the accused-appellants next contended that
the trial Court has taken into consideration the general allegations of
demand of dowry without there being any specific attribution to any of the
Criminal Appeal No. 436 DBA of 1994 and [6]
Criminal Appeal No.124-SB of 1994
accused persons in respect of time, place and the manner in which the
alleged demand was ever raised by accused-appellants. The prosecution has
totally failed to prove the basic ingredients of dowry death and further the
fact that the deceased was ever subjected to cruelty or harassment on
account of demand of dowry just before her death.
Ms. Naveen Malik, learned Additional Advocate General,
appearing for the State, opposing the submissions raised by the learned
counsel for the accused-appellants, has argued that the trial Court has
wrongly acquitted Harnand and Krishna accused and has rightly awarded
the sentence to other co-accused, namely, Rajbir and Smt.Parkasho alias
Guddi as the prosecution has succeeded in proving its case against them.
There is sufficient and cogent evidence on the file to convict the accused as
Ram Kumar, father of Raj Kala, appearing as PW-6 and Sama Kaur, mother
of deceased appearing as PW-8 have stated consistently that when Raj Kala
visited their house on the occasion of Teej festival, she told them about mal-
treatment and specific demand with regard to scooter, colour TV and cash
amount of Rs.20-25 thousands by accused persons. The deceased was
assured by her parents to meet out their demand and on this assurance, she
was sent back to her in-laws’ house. It is also clear from the statement of
Sama Kaur PW-8 that deceased Raj Kala told her that in case the demand
was not fulfilled, she would be done to death by the accused persons. It has
further been contended by the State counsel that trial Court has totally
ignored the testimony of the father as well as mother of deceased Raj Kala.
ASI Maha Singh PW-9 has also asserted that as per investigation, Raj Kala
died by taking poisonous substance as a result of cruelty on account of
dowry death. Presumption of Section 113 B of the Evidence Act has been
Criminal Appeal No. 436 DBA of 1994 and [7]
Criminal Appeal No.124-SB of 1994
relied by the State counsel. Moreover, the case of the deceased is covered
under the parameters of Section 113-B of the Evidence Act and provisions of
Section 304-B and 498-A of the Indian Penal Code as the death of Raj Kala
took place within 7 years of her marriage and if it is a case of taking
poisonous substance by the deceased, i.e. also due to the compelling
circumstances created by the accused persons by giving mental and physical
torture and harassment, which resulted into her death.
We have heard the arguments of learned counsel for parties and
have very carefully scanned the evidence on record.
There is no evidence on record to show that Raj Kala was
subjected to any cruelty or harassment before her death as it is apparent
from the statements of PW6 Ram Kumar and PW7 Sama Kaur. There is one
reference that deceased Raj Kala went to her parent’s house on the occasion
of Teej and told them that her in-laws were harassing her for demand of
dowry. There is nothing on the record to establish that the deceased was
subjected to any cruelty or harassment by her in-laws as it has come on
record that mother-in-law was residing separately, whereas husband of the
deceased was also away to Bihar as he was working as cleaner on a truck.
Accused Rajbir has admitted in his statement under Section 313 Cr.P.C. that
at the time of occurrence, he was not in the house as he was away to Bihar
and working as cleaner on a truck.
The whole case of the prosecution rests on the statement of PW6
Ram Kumar (father) and PW8 Sama Kaur (mother) of Raj Kala deceased as
they have stated in their statements that the deceased came to their house on
the occasion of Teej and she told them that her in-laws were demanding
dowry and if the demand was not fulfilled, she would be done to death.
Criminal Appeal No. 436 DBA of 1994 and [8]
Criminal Appeal No.124-SB of 1994
The deceased died on 13th September, 1991 whereas the FIR
was lodged on 16th September, 1991 at about 4.30 p.m. and the delay of
three days in lodging the FIR creates a serious doubt about the truthfulness
and credibility of the prosecution case. PW-6 Ram Kumar, father of the
deceased, stated in his statement that he reached Bhiwani at about 8.30 or
9.00 p.m. in spite of the fact that he was made aware of the incident on 14th
September, 1991. It is also clear from the statement of Ram Kumar (PW6)
that he stayed there on 15th September, 1991 and no explanation whatsoever
for reporting the matter to the police has come on record as to why he took 3
days in lodging the FIR. The FIR was lodged on 16th September, 1991 at
about 4.30 p.m.
From careful perusal of the statements of the witnesses, it is
clear that there is nothing in the complaint or in the statements of witnesses
that accused-appellants used to demand dowry and in what manner the
deceased was humiliated and harassed. In absence of any specific allegation
regarding harassment and cruelty caused to the deceased, the accused-
appellants cannot be connected with the offence. Moreover, mother-in-law
of the deceased was residing separately and the husband was also away to
Bihar and working there as cleaner on a truck.
Now, after going through the contentions of both sides, we have
to see whether a case under Section 304 B IPC is made out or not.
Section 304-B IPC reads as under:
“304-B. Dowry death.-(1) Where the death of a woman is
caused by any burns or bodily injury or occurs otherwise
than under normal circumstances within seven years of
her marriage and it is shown that soon before her death
Criminal Appeal No. 436 DBA of 1994 and [9]
Criminal Appeal No.124-SB of 1994
she was subjected to cruelty or harassment by her husband
or any relative of her husband for, or in connection with,
any demand for dowry, such death shall be called “dowry
death” , and such husband or relative shall be deemed to
have caused her death.
Explanation. – For the purpose of this sub-section,
“dowry” shall have the same meaning as in section 2 of
the Dowry Prohibition Act, 1961.
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for
life.”
Section 304B IPC is applicable, if it is established that soon before
the death, the deceased was subjected to cruelty or harassment by her
husband or any of his relative; for or in connection with any demand of
dowry, such death shall be called “dowry death”, and such husband or
relative shall be deemed to have caused her death. The Parliament has also
inserted Section 113 B IPC by Act No. 43 of 1986 with effect from 1.5.1986,
which reads as under:-
“113-B-Presumption as to dowry death.- When the
question is whether a person has committed the
dowry death of a woman and it is shown that soon
before her death such woman had been subjected by
such person to cruelty or harassment for, or in
connection with, any demand for dowry, the Court
shall presume that such person had caused the
Criminal Appeal No. 436 DBA of 1994 and [10]
Criminal Appeal No.124-SB of 1994dowry death.
Explanation – For the purpose of this section,
“dowry death” , shall have the same meaning as in
Section 304-B IPC.”
From the conjoint reading of Section 304 B IPC and Section
113-B of the Indian Evidence Act, it is apparent that a presumption arising
thereunder will operate if the prosecution is able to establish the
circumstances as set out in Section 304-B of the Indian Penal Code.
The ingredients of the aforementioned provisions are:
(1)That the death of the woman caused by any burns or bodily injury
or in some circumstances which is not normal; (2) Such death occurs
within 7 years from the date of her marriage: (3) That the victim was
subjected or cruelty or harassment by her husband or any relative of
her husband; (4) such cruelty or harassment should be for or in
connection with demand of dowry; and (5) it is established that such
cruelty and harassment was made soon before her death.”
In the case of unnatural death of a married woman as in a case of
this nature, the husband could be prosecuted under Sections 302 and 306
IPC. The distinction as regards commission of an offence under one or the
other provisions as mentioned hereinbefore came up for consideration before
Hon’ble the Apex Court in Satvir Singh & Ors. v. State of Punjab and
another, 2001 (4) RCR (Crl.) 355 (SC) : [(2001) 8 SCC 633], wherein it
was held:
Criminal Appeal No. 436 DBA of 1994 and [11]
Criminal Appeal No.124-SB of 1994
“Thus, there are three occasions related to dowry. One is before
the marriage, second is at the time of marriage and the third is
“at any time” after the marriage. The third occasion may appear
to be an unending period. But the crucial words are ” in
connection with the marriage of the said parties”. This means
that giving or agreeing to give any property or valuable security
on any of the above three stages should have been in connection
with the marriage of the parties. There can be many other
instances for payment of money or giving property as between
the spouses. For example, some customary payments in
connection with birth of a child or other ceremonies are
prevalent in different societies. Such payments are not
enveloped within the ambit of ” dowry” . Hence the dowry
mentioned in Section 304B should be any property or valuable
security given or agreed to be given in connection with the
marriage.
It is not enough that harassment or cruelty was caused to the
woman with a demand for dowry at some time, if Section 304 B
is to be invoked. But it should have happened “soon before her
death.” The said phrase, no doubt, is an elastic expression and
can refer to a period either immediately before her death or
within a few days or even a few weeks before it. But the
proximity to her death is the pivot indicated by that expression.
The legislative object in providing such a radius of time by
employing the words “soon before her death” is to emphasize
the idea that her death should, in all probabilities, have been the
Criminal Appeal No. 436 DBA of 1994 and [12]
Criminal Appeal No.124-SB of 1994
aftermath of such cruelty or harassment. In other words, there
should be a perceptible nexus between her death and the dowry-
related harassment or cruelty inflicted on her. If the interval
elapsed between the infliction of such harassment or cruelty and
her death is vide the court would be in a position to gauge that in
all probabilities the harassment or cruelty would not have been
the immediate cause of her death. It is hence for the Court to
decide, on the facts and circumstances of each case, whether the
said interval in that particular case was sufficient to snuff its
cord from the concept ” soon before her death”.
In Hira Lal and others v. State ( Govt. of NCT) Delhi, 2003
(3) RCR (Crl.), 830 (SC): the Hon’ble Apex Court observed
that the expression “soon before her death” used in the
substantive Section 304-B IPC and Section 113-B of the
Evidence Act is present with the idea of proximity test. No
definite period has been indicated and the and the expression
“soon before” is not defined. A reference to the expression ”
soon before” used in Section 114 illustration (a) of the
Evidence Act is relevant. It lays down that a court may presume
that a man who is in the possession of goods ” soon after the
theft, is either the thief or has received the goods knowing them
to be stolen, unless he can account for their possession”. The
determination of the period which can come within the term
“soon before ” is left to be determined by the courts, depending
upon facts and circumstances of each case. Suffice, however, to
Criminal Appeal No. 436 DBA of 1994 and [13]
Criminal Appeal No.124-SB of 1994
indicate that the expression ” soon before” would normally
imply that the interval should not be much between the cruelty
or harassment concerned and the death in question. There must
be existence of a proximate and live link between the effect of
cruelty based on dowry demand and the death concerned. If the
alleged incident of cruelty is remote in time and has become
stale enough not to disturb the mental equilibrium of the woman
concerned, it would be of no consequence.”
In the aforementioned situation, the presumption arising under
Section 304-B of the Indian Penal Code or Section 113-B of the Indian
Evidence Act could not be invoked against the appellants. The prosecution,
therefore, must be held to have failed to establish any case against the
appellants.
After perusing the legal position and evidence on record, we are
of the view that the present case does not fall within the perview of Section
304-B IPC as all the ingredients of Section 304-B have not been proved on
the basis of statements of the prosecution witnesses. There is nothing on the
record to show that the deceased was subjected to cruelty or harassment by
the appellants. Moreover, the fact that accused-appellant Parkasho was
residing separately and husband of the deceased was also not in the house on
the day of occurrence, the prosecution has not been able to establish that the
deceased was killed at the hands of accused-appellants. It has also come in
the statement of DW1 Hari Kishan that he was Sarpanch of village Lohani.
Accused Harnand came to him and told him that Rajender son of Ram
Kishan had illicit relation with the wife of Rajbir and being a poor person,
Criminal Appeal No. 436 DBA of 1994 and [14]
Criminal Appeal No.124-SB of 1994
he could not do anything and sought help from him. He further deposed that
he called Rajender and warned him to behave properly and not to carry illicit
relation with the wife of Rajbir in future.
The prosecution has failed to prove the ingredients of Section
304-B IPC that Raj Kala died due to harassment or cruelty at the hands of
in-laws on the ground of dowry but, from the facts and circumstances of the
case, it is clear that it can be a case of suicide by the deceased.
For the reasons recorded above, Crl.Appeal No.124 SB of 1994
filed by appellants Rajbir and Parkasho is accepted and the judgment of
conviction and order of sentence dated 31.1.1994 passed by Addl. Sessions
Judge, Bhiwani, are set aside. The appellants shall stand acquitted of the
charges framed against them. If they are on bail, they shall stand discharged
of their bail bonds. If they are in custody, they shall be set at liberty at once,
if not required in any other case.
In view of the above, Crl.Appeal No.436 DBA of 1994 filed by
the State is dismissed.
(UMA NATH SINGH) (DAYA CHAUDHARY)
JUDGE JUDGE
February 20, 2009.
raghav
