{"id":203180,"date":"2008-11-04T00:00:00","date_gmt":"2008-11-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-surender-and-another-on-4-november-2008"},"modified":"2017-03-01T17:54:57","modified_gmt":"2017-03-01T12:24:57","slug":"state-vs-surender-and-another-on-4-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-surender-and-another-on-4-november-2008","title":{"rendered":"State vs Surender And Another on 4 November, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
State vs Surender And Another on 4 November, 2008<\/div>\n
Crl.A.No.185-DBA of 2001                                        -1-\n\n\n        IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                    CHANDIGARH.\n\n                             Crl.A.No.185-DBA of 2001\n\n                             Date of Decision: November 04, 2008\n\nState                                                .......Appellant\n\n                   Versus\n\nSurender and another                                  .......Respondents\n\n                              and\n\n                            Crl.Revision No.1220 of 2000\n\nJoginder Singh                                      ........Petitioner\n\n                   Versus\n\nSurender and another                                .........Respondents\n\n\n\nCORAM:- HON'BLE MR.JUSTICE K. S. GAREWAL\n        HON'BLE MR.JUSTICE JITENDRA CHAUHAN\n\n\nPresent:    Mr.SS Randhawa, Additional AG Haryana.\n\n            Mr.RK Gupta, Advocate for the respondents.\n\n\nJITENDRA CHAUHAN, J.\n<\/pre>\n
1.          On 8.5.1995, the marriage between deceased Sanjana @ Sunita<\/p>\n
and accused- Surender was solemnized with the mediation of DW2 – Abhey<\/p>\n
Ram. Sanjana died on 17.7.1998 on account of burn injuries.<\/p>\n
2.          Accused – Surender and his mother Savitri had been sent up to<\/p>\n
face trial for having committed offences punishable under Sections 304-B<\/p>\n
and 498-A of the Indian Penal Code. They were both acquitted by the<\/p>\n
learned Sessions Judge, Rohtak on 1.6.2000. The State of Haryana has filed<\/p>\n
appeal against acquittal.\n<\/p>\n
 Crl.A.No.185-DBA of 2001                                      -2-<\/span><\/p>\n
3.          On 17.7.1998 at around 2.40 P.M., a message was received<\/p>\n
from PGIMS, Rohtak to the effect that one Sanjana wife of Surender,<\/p>\n
resident of Prem Nagar, Rohtak had been admitted in the said hospital with<\/p>\n
burn injuries. On arrival of ASI Bhim Singh along with other officials at<\/p>\n
the PGIMS, Rohtak, a servant of the ward handed over a ruqa to him<\/p>\n
regarding the death of Sanjana. ASI- Bhim Singh took the custody of the<\/p>\n
dead body of the deceased. The photographs of the dead body were taken<\/p>\n
and relatives of the deceased were informed.\n<\/p>\n
4.          PW5- Joginder Singh son of Hawa Singh, brother of deceased<\/p>\n
Sanjana produced a written application, upon which his statement, Exhibit<\/p>\n
PF, was recorded by the Executive Magistrate (Tehsildar), Rohtak.<\/p>\n
5.          As per the statement of Joginder Singh, Sanjana @ Sunita was<\/p>\n
married with Surender on 8.5.1995.       Joginder Singh had come to the<\/p>\n
PGIMS, Rohtak when a girl from his village, who is an employee of the<\/p>\n
Medical College, Rohtak, narrated about the incident regarding the burn<\/p>\n
injuries suffered by his sister Sanjana. Before he reached the hospital,<\/p>\n
Sanjana had already died.\n<\/p>\n
6.          Joginder Singh had come to Rohtak to see his sister about 15<\/p>\n
days prior to the occurrence. On that day, the deceased had told him that<\/p>\n
everything was going well. But prior to that, the deceased had apprised<\/p>\n
him that she was being pressurised by the accused for getting the land<\/p>\n
falling in her share sold, so that the accused     could built a house and<\/p>\n
purchase a Maruti Car. Joginder Singh further stated that the deceased<\/p>\n
used to be harassed for not having brought sufficient dowry. She had been<\/p>\n
subjected to cruelty. Joginder Singh also stated in his statement that he was<\/p>\n
of a firm view that her sister Sanjana had been eliminated. He also claimed
\n Crl.A.No.185-DBA of 2001                                       -3-<\/span><\/p>\n
to have paid Rs.4,000\/-, 5,000\/- and 3,000\/- to the deceased on various<\/p>\n
occasions.\n<\/p>\n
7.           The Investigating Officer sent a ruqa to the police station for<\/p>\n
registration of a case, on the basis of which a formal FIR, Exhibit PF\/2,<\/p>\n
under Section 304-B of the Indian Penal Code was registered.<\/p>\n
8.           The spot was inspected by the Investigating Officer and site<\/p>\n
plan, Exhibit PK, was prepared. The Investigating Officer also took into<\/p>\n
possession a plastic cane, half-burnt clothes, match-box sticks, chappals and<\/p>\n
pieces of burnt skin from the site of the occurrence, i.e., the room of the<\/p>\n
house owned by Dr.Om Parkash, DW1.\n<\/p>\n
9.           On 18.7.1998, Dr.GN Aggarwal, PW2 along with Dr.RK<\/p>\n
Chaudhary conducted post-mortem examination of the dead body of<\/p>\n
Sanjana wife of Surender. The following injuries were found on the person<\/p>\n
of the deceased:\n<\/p>\n
             “……There were superficial deep burns, all over the body,
\n             except the front underwear area including genitalia.       There
\n             were blisters, peeling of skin, singeing of scalp hair having red
\n             lines around the burnt area and few normal patches of skin were
\n             present.   There were approximately 98% burns underlying
\n             congestion and on cut down on the right and left leg ankle
\n             region. No purulent discharge was present. Right side of the
\n             heart was containing 20 ml. blood and left side was empty.
\n             Both lungs were congested.         Larynx and trachea were
\n             containing secretion. Mouth and pharynx contained secretions.
\n             Bladder was empty.\n<\/p><\/blockquote>\n
                   In the opinion of the doctors, the cause of death of the
\n             deceased was extensive burns and its complications leading to
\n             death which were sufficient to cause death in the ordinary
\n             course of nature. The probable duration between injuries and
\n             death was within seven days and between death and post
\n Crl.A.No.185-DBA of 2001                                       -4-<\/span><\/p>\n
             mortem was six to thirty six hours. He also proved the carbon
\n             copy of the post mortem report Ex.PC and inquest report
\n             Ex.PD, which were signed by him and Dr.RK Chaudhary.”\n<\/p><\/blockquote>\n
10.          On 17.12.1998, the learned Sessions Judge, Rohtak summoned<\/p>\n
accused-Surender and Savitri to stand trial under Sections 498-A and 304-B<\/p>\n
of the Indian Penal Code.\n<\/p>\n
11.          The prosecution examined as many as eight witnesses to<\/p>\n
establish its case.    However, the material witnesses are PW2 Dr.GN<\/p>\n
Aggarwal, who conducted the post mortem, PW3 Mahabir Singh, Tehsildar,<\/p>\n
Rohtak, who recorded the statement on the application made by PW5<\/p>\n
Joginder Singh and     PW7 ASI- Bhim Singh, who was the Investigating<\/p>\n
Officer of the case.\n<\/p>\n
12.          After the completion of evidence of the prosecution, the<\/p>\n
accused were examined under Section 313 of the Code of Criminal<\/p>\n
Procedure. The accused denied the charges and pleaded false implication.<\/p>\n
The common defence projected by both the accused was that they never<\/p>\n
demanded any amount from Sanjana or her parents. The cause of death was<\/p>\n
stated to be the extreme depression of Sanjana owing to infertility. DW1<\/p>\n
to DW5 were also examined on behalf of the defence.<\/p>\n
13.          After appreciating the evidence on record and rival contentions<\/p>\n
of the learned counsel for the parties, the learned Sessions Judge, Rohtak<\/p>\n
held that the prosecution miserably failed to prove all the three ingredients<\/p>\n
of Section 304-B as well as      Section 498-A of the Indian Penal Code<\/p>\n
beyond all reasonable doubts. The accused were, consequently, acquitted<\/p>\n
of the charges.\n<\/p>\n
14.          The appellant – State of Haryana has         filed the present
\n Crl.A.No.185-DBA of 2001                                         -5-<\/span><\/p>\n
application under Section 378(4) of the Code of Criminal Procedure for<\/p>\n
grant of leave to appeal accompanied with grounds of appeal. PW5-<\/p>\n
Joginder Singh also filed revision petition against the judgment of acquittal<\/p>\n
dated 1.6.2000. Leave to appeal was granted on 28.3.2001 by this Court.<\/p>\n
The present appeal as well as the Criminal Revision No.1220-DB of 2000<\/p>\n
are being taken up for hearing together as the same have emerged out of a<\/p>\n
common judgment dated 1.6.2000.\n<\/p>\n
15.         The issue for determination in the present appeal is, whether<\/p>\n
the order dated 1.6.2000 passed by the learned District Judge, Rohtak is<\/p>\n
sustainable in the eyes of law and, whether in the facts and circumstances of<\/p>\n
the present case, a case under Sections 304-B and 498-A of the Indian Penal<\/p>\n
Code is made out against the accused- respondents. Sections 304-B and<\/p>\n
498-A of the Indian Penal Code are re-produced hereunder for better<\/p>\n
appreciation of the issues involved:\n<\/p>\n
                 304-B. Dowry death – (1) Where the death of a woman is
\n            caused by any burns or bodily injury or occurs otherwise than
\n            under normal circumstances within seven years of her marriage
\n            and it is shown that soon before her death she was subjected to
\n            cruelty or harassment by her husband or any relative of her
\n            husband for, or in connection with, any demand for dowry,
\n            such death shall be called “dowry death”, and such husband or
\n            relative shall be deemed to have caused her death.
\n               Explanation – For the purposes of this sub-section, “dowry”
\n            shall have the same meaning as in Section 2 of the Dowry
\n            Prohibition Act, 1961 (28 of 1961).\n<\/p><\/blockquote>\n
                 (2) whoever commits dowry death shall be punished with
\n            imprisonment for a term which shall not be less than seven
\n            years but which may extend to imprisonment for life.
\n            498-A.     Husband or relative of husband of a woman
\n            subjecting her to cruelty. – Whoever, being the husband or the
\n Crl.A.No.185-DBA of 2001                                         -6-<\/span><\/p>\n
             relative of the husband of a woman, subjects such woman to
\n             cruelty shall be punished with imprisonment for a term which
\n             may extend to three years and shall also be liable to fine.
\n             Explanation – For the purposes of this section, “cruelty”
\n             means-\n<\/p><\/blockquote>\n
             a) any wilful conduct which is of such a nature as is likely to
\n             drive the woman to commit suicide or to cause grave injury or
\n             danger to life, limb or health (whether mental or physical) of
\n             the woman; or\n<\/p><\/blockquote>\n
             b) harassment of the woman where such harassment is with a
\n             view to coercing here or any person related to her to meet any
\n             unlawful demand for any property or valuable security or is on
\n             account of failure by her or any person related to her to meet
\n             such demand.\n<\/p><\/blockquote>\n
16.          The case of the prosecution rests upon the testimony of PW5.<\/p>\n
In his cross-examination, PW5 admitted that the deceased told him fifteen<\/p>\n
days prior to the occurrence that everything was going well and he should<\/p>\n
not interfere in their married life.\n<\/p>\n
17.          PW3 Mahabir Singh, Tehsildar, Rohtak, who recorded the<\/p>\n
version of PW5 and conducted inquest proceedings qua the dead body of<\/p>\n
Smt.Sanjana, stated in cross-examination that Surender, the accused-<\/p>\n
respondent and Om Parkash, DW1, the owner of the house where the<\/p>\n
occurrence took place, were present near the dead body. The statements of<\/p>\n
both these witnesses were recorded by PW3 as Exhibits DA and DP<\/p>\n
respectively.\n<\/p>\n
18.          In the    cross-examination, PW7 Bhim Singh, Investigating<\/p>\n
Officer of the case, admitted that the door on the eastern side of the room<\/p>\n
in which the deceased suffered burn injuries, was found locked and the door<\/p>\n
on the western side was found open.\n<\/p>\n
 Crl.A.No.185-DBA of 2001                                       -7-<\/span><\/p>\n
19.            In this regard, the statement of DW5 Ram Niwas Gupta,<\/p>\n
neighbour of Om Parkash DW1, acquires crucial significance. DW5 heard<\/p>\n
the cries coming from inside of house of DW1 Om Parkash. The main gate<\/p>\n
of the house was bolted from inside. The other door of the house, which<\/p>\n
opens in another street, was also found to be locked from inside. DW5<\/p>\n
scaled the wall and opened the main gate, the room from where the smoke<\/p>\n
was emanating was locked from inside. When there was no response to the<\/p>\n
knocks given by him, he broke open the door by giving kicks and saw the<\/p>\n
victim burning. After extinguishing the fire, the victim was taken to the<\/p>\n
PGIMS, Rohtak by him. Other persons in the neighbourhood, who had<\/p>\n
gone to convey the land-lord Om Parkash regarding the incident in the<\/p>\n
Mandi, also joined him near Radio Station, Rohtak. The victim told DW5<\/p>\n
that she had committed a mistake and she should be saved.<\/p>\n
20.            Another important fact that requires mentioning in this regard<\/p>\n
is the statement of DW2 – Abhey Ram, who acted as mediator in the<\/p>\n
marriage in question. He categorically stated that it was a simple marriage<\/p>\n
and no dowry articles were demanded by the accused. He further stated that<\/p>\n
he was never apprised of the mal-treatment given to Sanjana at the hands of<\/p>\n
the accused.\n<\/p>\n
21.            DW3-Dr.Ashok      Sachdeva,    Reader,    ENT    Department,<\/p>\n
diagnosed the deceased for Anxiety Neurosis. According to DW4-Dr.Daya<\/p>\n
Serohiwal, the deceased was being examined for the treatment of infertility<\/p>\n
and certain tests in this regard had been recommended.               In cross-<\/p>\n
examination, she stated that nothing could be said with certainty regarding<\/p>\n
whether Sanjana was unable to produce a child. As per report Exhibit DJ,<\/p>\n
there was no abnormality detected in the semen of the accused (husband of
\n Crl.A.No.185-DBA of 2001                                        -8-<\/span><\/p>\n
the deceased).\n<\/p>\n
22.           DW6-Pawan Maurya, Area Manager, Ambala Cantt. working<\/p>\n
with Standard Formulation, stated that accused-Surender was Medical<\/p>\n
Representative in their Company. He had sent a telegram to accused<\/p>\n
Surender about his visit for 17.7.1998 and 18.7.1998, and the accused was<\/p>\n
with him from 9.00 A.M. to 2.30 P.M. on the date of occurrence.<\/p>\n
23.           We have heard the learned counsel for the parties and perused<\/p>\n
the record.\n<\/p>\n
24.           Admittedly, it is for the prosecution to establish that Sanjana<\/p>\n
had died within seven years of her marriage and soon before the death, the<\/p>\n
victim was subjected to cruelty and        harassment by her husband and<\/p>\n
relatives, for or in connection with the demand of dowry.<\/p>\n
25.           There are only vague allegations made by PW5, the effect of<\/p>\n
which stands totally erased when in the cross-examination, he admitted that<\/p>\n
the victim had told him about 15 days prior to the occurrence not to interfere<\/p>\n
in their matrimonial life, coupled with the fact that he was unable to give the<\/p>\n
details of the amount paid to the deceased on various occasions. The fact<\/p>\n
which attracts our attention is in the entire complaint, there was no mention<\/p>\n
of anything that there was a demand of cash amount by the accused.<\/p>\n
26.           The accused were not present at the time of the occurrence.<\/p>\n
The deceased was all alone at home. DW5 Ram Niwas Gupta took out the<\/p>\n
deceased after having broken the doors of the room which was bolted from<\/p>\n
inside by the deceased. The testimony of the land-lord DW1 Om Parkash,<\/p>\n
in this regard, is important. The couple was stated to have been enjoying a<\/p>\n
happy married life. Co-accused Savitri had been living with her husband at<\/p>\n
Hisar.\n<\/p>\n
 Crl.A.No.185-DBA of 2001                                      -9-<\/span><\/p>\n
27.         From the evidence on record, this is amply proved that the<\/p>\n
couple had no issue and the deceased had been taking treatment for her non-<\/p>\n
conceivability. It has further come on record that on account of infertility,<\/p>\n
the deceased used to be under depression, which is verified by the statement<\/p>\n
of DW3 – Ashok Sachdeva, Reader ENT Department, PGI, who referred her<\/p>\n
to the Doctors of Gynae Department and diagnosed her to be suffering from<\/p>\n
Anxiety Neurosis.\n<\/p>\n
28.         The marriage between the deceased and the accused was<\/p>\n
solemnized on 8.5.1995.     There was no dispute regarding the fact that<\/p>\n
Sanjana died on 18.7.1998 on account of burn injuries in a room taken on<\/p>\n
rent by her husband. Deceased-Sanjana died at the house of her husband<\/p>\n
within seven years of her marriage and the death had taken place other than<\/p>\n
in the normal circumstances. In this regard, a reading of Section 113-B of<\/p>\n
the Evidence Act would be relevant:\n<\/p>\n
            “113-B. Presumption as to dowry death:- When the question
\n            is whether a person has committed the dowry death of a women
\n            and it is shown that soon before her death such women had
\n            been subjected by such person to cruelty or harassment for, or
\n            in connection with, any demand for dowry, the Court shall
\n            presume that such person had caused the dowry death.”<\/p><\/blockquote>\n
            The Hon’ble Supreme Court in M.Srinivasulu Vs. State of<\/p>\n
A.P. (2007) 12 SCC 443 observed as under:\n<\/p>\n
                    “A conjoint reading of Section 113-B of the Evidence<\/p>\n
            Act and Section 304-B IPC shows that there must be material to<\/p>\n
            show that soon before her death the victim was subjected to<\/p>\n
            cruelty or harassment. The prosecution has to rule out the<\/p>\n
            possibility of a natural or accidental death so as to bring it
\n Crl.A.No.185-DBA of 2001                                    -10-<\/span><\/p>\n
          within the purview of the ‘death occurring otherwise than in<\/p>\n
          normal circumstances’. The expression ‘soon before’ is very<\/p>\n
          relevant where Section 113-B of the Evidence Act and Section<\/p>\n
          304-B IPC are passed into service. The prosecution is obliged<\/p>\n
          to show that soon before the occurrence there was cruelty or<\/p>\n
          harassment and only in that case presumption operates.\n<\/p><\/blockquote>\n
          Evidence in that regard has to be led in by the prosecution.\n<\/p><\/blockquote>\n
          ‘Soon before’ is a relative term and it would depend upon the<\/p>\n
          circumstances of each case and no straitjacket formula can be<\/p>\n
          laid down as to what would constitute a period of soon before<\/p>\n
          the occurrence. It would be hazardous to indicate any fixed<\/p>\n
          period, and that brings in the importance of a proximity test<\/p>\n
          both for the proof of an offence of dowry death as well as for<\/p>\n
          raising presumption under Section 113-B of the Evidence Act.\n<\/p><\/blockquote>\n
          The expression ‘soon before her death’ used in the substantive<\/p>\n
          Section 304-B IPC and Section 113-B of the Evidence Act is<\/p>\n
          present with the idea of proximity test. No definite period has<\/p>\n
          been indicated and the expression ‘soon before’ is not defined.\n<\/p><\/blockquote>\n
          A reference to the expression ‘soon before’ used in Section 114<\/p>\n
          Illustrative (a) of the Evidence Act is relevant. It lays down<\/p>\n
          that a court may presume that a man who is in the possession of<\/p>\n
          goods soon after the theft, is either the thief who has received<\/p>\n
          the goods knowing them to be stolen, unless he can account for<\/p>\n
          his possession. The determination of the period which can<\/p>\n
          come within the term ‘soon before’ is left to be determined by<\/p>\n
          the courts, depending upon facts and circumstances of each
\n Crl.A.No.185-DBA of 2001                                       -11-<\/span><\/p>\n
            case. Suffice, however, to indicate that the expression ‘soon<\/p>\n
            before’ would normally imply that the interval should not be<\/p>\n
            much between the cruelty or harassment concerned and the<\/p>\n
            death in question. There must be existence of a proximate and<\/p>\n
            live link between the effect of cruelty based on dowry demand<\/p>\n
            and the death concerned.      If alleged incident of cruelty is<\/p>\n
            remote in time and has become stale enough not to disturb the<\/p>\n
            mental equilibrium of the woman concerned, it would be of no<\/p>\n
            consequence.”\n<\/p><\/blockquote>\n
29.         In the light of aforementioned facts, we are not able to convince<\/p>\n
ourselves that a case under Section 304-B or the one under Section 498-A<\/p>\n
of the Indian Penal Code is made out against the accused-respondents.      It<\/p>\n
is proved on record that Savitri, the co-accused, was residing with her<\/p>\n
husband and other children at Hisar. This fact finds corroboration from the<\/p>\n
statement of DW1-Om Parkash. Moreover, PW5-Joginder has nowhere<\/p>\n
stated that Savitri used to reside with accused Surender and Sanjana at<\/p>\n
Rohtak.\n<\/p>\n
30.         Therefore, we are convinced that accused Savitri was residing<\/p>\n
separately and she had no occasion to make any demand of dowry or to<\/p>\n
harass the deceased. The statement of Joginder Singh, PW5 is not sufficient<\/p>\n
to prove the essential ingredients of the demand of dowry and harassment<\/p>\n
caused to the deceased. The plea of the accused that Sanjana used to remain<\/p>\n
under depression on account of her infertility is supported by medical<\/p>\n
evidence on record. On the other hand, the husband, as per medical report,<\/p>\n
was fully capable to produce child.\n<\/p>\n
31.         There is nothing on record to doubt the statement of PW6-
\n Crl.A.No.185-DBA of 2001                                      -12-<\/span><\/p>\n
Pawan Maurya that accused was not with him on the day of occurrence i.e.<\/p>\n
18.7.1998.\n<\/p>\n
32.          As a sequel to the observations made above, we feel that in the<\/p>\n
present case, the essential ingredients of Sections 304-B and 498-A of the<\/p>\n
Indian Penal Code are not established beyond all reasonable doubts against<\/p>\n
the accused-respondents.\n<\/p>\n
33.          Therefore, we dismiss the present appeal and also the revision<\/p>\n
petition No.1220 of 2000 filed by PW5-Joginder Singh by upholding the<\/p>\n
order of acquittal recorded by the Sessions Judge, Rohtak.<\/p>\n
                                             ( JITENDRA CHAUHAN )
\n                                                     JUDGE<\/p>\n
                                                    ( K .S. GAREWAL )
\n                                                          JUDGE
\nNovember 04, 2008
\nSRM<\/p>\n
Note:        Whether to be referred to reporter ?        Yes\/No\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court State vs Surender And Another on 4 November, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-203180","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nState vs Surender And Another on 4 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-surender-and-another-on-4-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs Surender And Another on 4 November, 2008 - 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