Crl.A.No.185-DBA of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.A.No.185-DBA of 2001
Date of Decision: November 04, 2008
State .......Appellant
Versus
Surender and another .......Respondents
and
Crl.Revision No.1220 of 2000
Joginder Singh ........Petitioner
Versus
Surender and another .........Respondents
CORAM:- HON'BLE MR.JUSTICE K. S. GAREWAL
HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.SS Randhawa, Additional AG Haryana.
Mr.RK Gupta, Advocate for the respondents.
JITENDRA CHAUHAN, J.
1. On 8.5.1995, the marriage between deceased Sanjana @ Sunita
and accused- Surender was solemnized with the mediation of DW2 – Abhey
Ram. Sanjana died on 17.7.1998 on account of burn injuries.
2. Accused – Surender and his mother Savitri had been sent up to
face trial for having committed offences punishable under Sections 304-B
and 498-A of the Indian Penal Code. They were both acquitted by the
learned Sessions Judge, Rohtak on 1.6.2000. The State of Haryana has filed
appeal against acquittal.
Crl.A.No.185-DBA of 2001 -2-
3. On 17.7.1998 at around 2.40 P.M., a message was received
from PGIMS, Rohtak to the effect that one Sanjana wife of Surender,
resident of Prem Nagar, Rohtak had been admitted in the said hospital with
burn injuries. On arrival of ASI Bhim Singh along with other officials at
the PGIMS, Rohtak, a servant of the ward handed over a ruqa to him
regarding the death of Sanjana. ASI- Bhim Singh took the custody of the
dead body of the deceased. The photographs of the dead body were taken
and relatives of the deceased were informed.
4. PW5- Joginder Singh son of Hawa Singh, brother of deceased
Sanjana produced a written application, upon which his statement, Exhibit
PF, was recorded by the Executive Magistrate (Tehsildar), Rohtak.
5. As per the statement of Joginder Singh, Sanjana @ Sunita was
married with Surender on 8.5.1995. Joginder Singh had come to the
PGIMS, Rohtak when a girl from his village, who is an employee of the
Medical College, Rohtak, narrated about the incident regarding the burn
injuries suffered by his sister Sanjana. Before he reached the hospital,
Sanjana had already died.
6. Joginder Singh had come to Rohtak to see his sister about 15
days prior to the occurrence. On that day, the deceased had told him that
everything was going well. But prior to that, the deceased had apprised
him that she was being pressurised by the accused for getting the land
falling in her share sold, so that the accused could built a house and
purchase a Maruti Car. Joginder Singh further stated that the deceased
used to be harassed for not having brought sufficient dowry. She had been
subjected to cruelty. Joginder Singh also stated in his statement that he was
of a firm view that her sister Sanjana had been eliminated. He also claimed
Crl.A.No.185-DBA of 2001 -3-
to have paid Rs.4,000/-, 5,000/- and 3,000/- to the deceased on various
occasions.
7. The Investigating Officer sent a ruqa to the police station for
registration of a case, on the basis of which a formal FIR, Exhibit PF/2,
under Section 304-B of the Indian Penal Code was registered.
8. The spot was inspected by the Investigating Officer and site
plan, Exhibit PK, was prepared. The Investigating Officer also took into
possession a plastic cane, half-burnt clothes, match-box sticks, chappals and
pieces of burnt skin from the site of the occurrence, i.e., the room of the
house owned by Dr.Om Parkash, DW1.
9. On 18.7.1998, Dr.GN Aggarwal, PW2 along with Dr.RK
Chaudhary conducted post-mortem examination of the dead body of
Sanjana wife of Surender. The following injuries were found on the person
of the deceased:
“……There were superficial deep burns, all over the body,
except the front underwear area including genitalia. There
were blisters, peeling of skin, singeing of scalp hair having red
lines around the burnt area and few normal patches of skin were
present. There were approximately 98% burns underlying
congestion and on cut down on the right and left leg ankle
region. No purulent discharge was present. Right side of the
heart was containing 20 ml. blood and left side was empty.
Both lungs were congested. Larynx and trachea were
containing secretion. Mouth and pharynx contained secretions.
Bladder was empty.
In the opinion of the doctors, the cause of death of the
deceased was extensive burns and its complications leading to
death which were sufficient to cause death in the ordinary
course of nature. The probable duration between injuries and
death was within seven days and between death and post
Crl.A.No.185-DBA of 2001 -4-mortem was six to thirty six hours. He also proved the carbon
copy of the post mortem report Ex.PC and inquest report
Ex.PD, which were signed by him and Dr.RK Chaudhary.”
10. On 17.12.1998, the learned Sessions Judge, Rohtak summoned
accused-Surender and Savitri to stand trial under Sections 498-A and 304-B
of the Indian Penal Code.
11. The prosecution examined as many as eight witnesses to
establish its case. However, the material witnesses are PW2 Dr.GN
Aggarwal, who conducted the post mortem, PW3 Mahabir Singh, Tehsildar,
Rohtak, who recorded the statement on the application made by PW5
Joginder Singh and PW7 ASI- Bhim Singh, who was the Investigating
Officer of the case.
12. After the completion of evidence of the prosecution, the
accused were examined under Section 313 of the Code of Criminal
Procedure. The accused denied the charges and pleaded false implication.
The common defence projected by both the accused was that they never
demanded any amount from Sanjana or her parents. The cause of death was
stated to be the extreme depression of Sanjana owing to infertility. DW1
to DW5 were also examined on behalf of the defence.
13. After appreciating the evidence on record and rival contentions
of the learned counsel for the parties, the learned Sessions Judge, Rohtak
held that the prosecution miserably failed to prove all the three ingredients
of Section 304-B as well as Section 498-A of the Indian Penal Code
beyond all reasonable doubts. The accused were, consequently, acquitted
of the charges.
14. The appellant – State of Haryana has filed the present
Crl.A.No.185-DBA of 2001 -5-
application under Section 378(4) of the Code of Criminal Procedure for
grant of leave to appeal accompanied with grounds of appeal. PW5-
Joginder Singh also filed revision petition against the judgment of acquittal
dated 1.6.2000. Leave to appeal was granted on 28.3.2001 by this Court.
The present appeal as well as the Criminal Revision No.1220-DB of 2000
are being taken up for hearing together as the same have emerged out of a
common judgment dated 1.6.2000.
15. The issue for determination in the present appeal is, whether
the order dated 1.6.2000 passed by the learned District Judge, Rohtak is
sustainable in the eyes of law and, whether in the facts and circumstances of
the present case, a case under Sections 304-B and 498-A of the Indian Penal
Code is made out against the accused- respondents. Sections 304-B and
498-A of the Indian Penal Code are re-produced hereunder for better
appreciation of the issues involved:
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 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 purposes of this sub-section, “dowry”
shall have the same meaning as in Section 2 of the Dowry
Prohibition Act, 1961 (28 of 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.
498-A. Husband or relative of husband of a woman
subjecting her to cruelty. – Whoever, being the husband or the
Crl.A.No.185-DBA of 2001 -6-relative of the husband of a woman, subjects such woman to
cruelty shall be punished with imprisonment for a term which
may extend to three years and shall also be liable to fine.
Explanation – For the purposes of this section, “cruelty”
means-
a) any wilful conduct which is of such a nature as is likely to
drive the woman to commit suicide or to cause grave injury or
danger to life, limb or health (whether mental or physical) of
the woman; or
b) harassment of the woman where such harassment is with a
view to coercing here or any person related to her to meet any
unlawful demand for any property or valuable security or is on
account of failure by her or any person related to her to meet
such demand.
16. The case of the prosecution rests upon the testimony of PW5.
In his cross-examination, PW5 admitted that the deceased told him fifteen
days prior to the occurrence that everything was going well and he should
not interfere in their married life.
17. PW3 Mahabir Singh, Tehsildar, Rohtak, who recorded the
version of PW5 and conducted inquest proceedings qua the dead body of
Smt.Sanjana, stated in cross-examination that Surender, the accused-
respondent and Om Parkash, DW1, the owner of the house where the
occurrence took place, were present near the dead body. The statements of
both these witnesses were recorded by PW3 as Exhibits DA and DP
respectively.
18. In the cross-examination, PW7 Bhim Singh, Investigating
Officer of the case, admitted that the door on the eastern side of the room
in which the deceased suffered burn injuries, was found locked and the door
on the western side was found open.
Crl.A.No.185-DBA of 2001 -7-
19. In this regard, the statement of DW5 Ram Niwas Gupta,
neighbour of Om Parkash DW1, acquires crucial significance. DW5 heard
the cries coming from inside of house of DW1 Om Parkash. The main gate
of the house was bolted from inside. The other door of the house, which
opens in another street, was also found to be locked from inside. DW5
scaled the wall and opened the main gate, the room from where the smoke
was emanating was locked from inside. When there was no response to the
knocks given by him, he broke open the door by giving kicks and saw the
victim burning. After extinguishing the fire, the victim was taken to the
PGIMS, Rohtak by him. Other persons in the neighbourhood, who had
gone to convey the land-lord Om Parkash regarding the incident in the
Mandi, also joined him near Radio Station, Rohtak. The victim told DW5
that she had committed a mistake and she should be saved.
20. Another important fact that requires mentioning in this regard
is the statement of DW2 – Abhey Ram, who acted as mediator in the
marriage in question. He categorically stated that it was a simple marriage
and no dowry articles were demanded by the accused. He further stated that
he was never apprised of the mal-treatment given to Sanjana at the hands of
the accused.
21. DW3-Dr.Ashok Sachdeva, Reader, ENT Department,
diagnosed the deceased for Anxiety Neurosis. According to DW4-Dr.Daya
Serohiwal, the deceased was being examined for the treatment of infertility
and certain tests in this regard had been recommended. In cross-
examination, she stated that nothing could be said with certainty regarding
whether Sanjana was unable to produce a child. As per report Exhibit DJ,
there was no abnormality detected in the semen of the accused (husband of
Crl.A.No.185-DBA of 2001 -8-
the deceased).
22. DW6-Pawan Maurya, Area Manager, Ambala Cantt. working
with Standard Formulation, stated that accused-Surender was Medical
Representative in their Company. He had sent a telegram to accused
Surender about his visit for 17.7.1998 and 18.7.1998, and the accused was
with him from 9.00 A.M. to 2.30 P.M. on the date of occurrence.
23. We have heard the learned counsel for the parties and perused
the record.
24. Admittedly, it is for the prosecution to establish that Sanjana
had died within seven years of her marriage and soon before the death, the
victim was subjected to cruelty and harassment by her husband and
relatives, for or in connection with the demand of dowry.
25. There are only vague allegations made by PW5, the effect of
which stands totally erased when in the cross-examination, he admitted that
the victim had told him about 15 days prior to the occurrence not to interfere
in their matrimonial life, coupled with the fact that he was unable to give the
details of the amount paid to the deceased on various occasions. The fact
which attracts our attention is in the entire complaint, there was no mention
of anything that there was a demand of cash amount by the accused.
26. The accused were not present at the time of the occurrence.
The deceased was all alone at home. DW5 Ram Niwas Gupta took out the
deceased after having broken the doors of the room which was bolted from
inside by the deceased. The testimony of the land-lord DW1 Om Parkash,
in this regard, is important. The couple was stated to have been enjoying a
happy married life. Co-accused Savitri had been living with her husband at
Hisar.
Crl.A.No.185-DBA of 2001 -9-
27. From the evidence on record, this is amply proved that the
couple had no issue and the deceased had been taking treatment for her non-
conceivability. It has further come on record that on account of infertility,
the deceased used to be under depression, which is verified by the statement
of DW3 – Ashok Sachdeva, Reader ENT Department, PGI, who referred her
to the Doctors of Gynae Department and diagnosed her to be suffering from
Anxiety Neurosis.
28. The marriage between the deceased and the accused was
solemnized on 8.5.1995. There was no dispute regarding the fact that
Sanjana died on 18.7.1998 on account of burn injuries in a room taken on
rent by her husband. Deceased-Sanjana died at the house of her husband
within seven years of her marriage and the death had taken place other than
in the normal circumstances. In this regard, a reading of Section 113-B of
the Evidence Act would be relevant:
“113-B. Presumption as to dowry death:- When the question
is whether a person has committed the dowry death of a women
and it is shown that soon before her death such women 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 dowry death.”
The Hon’ble Supreme Court in M.Srinivasulu Vs. State of
A.P. (2007) 12 SCC 443 observed as under:
“A conjoint reading of Section 113-B of the Evidence
Act and Section 304-B IPC shows that there must be material to
show that soon before her death the victim was subjected to
cruelty or harassment. The prosecution has to rule out the
possibility of a natural or accidental death so as to bring it
Crl.A.No.185-DBA of 2001 -10-within the purview of the ‘death occurring otherwise than in
normal circumstances’. The expression ‘soon before’ is very
relevant where Section 113-B of the Evidence Act and Section
304-B IPC are passed into service. The prosecution is obliged
to show that soon before the occurrence there was cruelty or
harassment and only in that case presumption operates.
Evidence in that regard has to be led in by the prosecution.
‘Soon before’ is a relative term and it would depend upon the
circumstances of each case and no straitjacket formula can be
laid down as to what would constitute a period of soon before
the occurrence. It would be hazardous to indicate any fixed
period, and that brings in the importance of a proximity test
both for the proof of an offence of dowry death as well as for
raising presumption under Section 113-B of the Evidence Act.
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 expression ‘soon before’ is not defined.
A reference to the expression ‘soon before’ used in Section 114
Illustrative (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 who has received
the goods knowing them to be stolen, unless he can account for
his 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
Crl.A.No.185-DBA of 2001 -11-case. Suffice, however, to 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 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.”
29. In the light of aforementioned facts, we are not able to convince
ourselves that a case under Section 304-B or the one under Section 498-A
of the Indian Penal Code is made out against the accused-respondents. It
is proved on record that Savitri, the co-accused, was residing with her
husband and other children at Hisar. This fact finds corroboration from the
statement of DW1-Om Parkash. Moreover, PW5-Joginder has nowhere
stated that Savitri used to reside with accused Surender and Sanjana at
Rohtak.
30. Therefore, we are convinced that accused Savitri was residing
separately and she had no occasion to make any demand of dowry or to
harass the deceased. The statement of Joginder Singh, PW5 is not sufficient
to prove the essential ingredients of the demand of dowry and harassment
caused to the deceased. The plea of the accused that Sanjana used to remain
under depression on account of her infertility is supported by medical
evidence on record. On the other hand, the husband, as per medical report,
was fully capable to produce child.
31. There is nothing on record to doubt the statement of PW6-
Crl.A.No.185-DBA of 2001 -12-
Pawan Maurya that accused was not with him on the day of occurrence i.e.
18.7.1998.
32. As a sequel to the observations made above, we feel that in the
present case, the essential ingredients of Sections 304-B and 498-A of the
Indian Penal Code are not established beyond all reasonable doubts against
the accused-respondents.
33. Therefore, we dismiss the present appeal and also the revision
petition No.1220 of 2000 filed by PW5-Joginder Singh by upholding the
order of acquittal recorded by the Sessions Judge, Rohtak.
( JITENDRA CHAUHAN )
JUDGE
( K .S. GAREWAL )
JUDGE
November 04, 2008
SRM
Note: Whether to be referred to reporter ? Yes/No