Punjab-Haryana High Court
Om Parkash And Another vs State Of Haryana on 4 February, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl.Appeal No.280-SB of 1996 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No.280-SB of 1996
Date of Decision: 4 - 2 - 2009
Om Parkash and another .....Appellants
v.
State of Haryana .....Respondent
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.N.K.Sanghi, Advocate
for the appellants.
Mr.S.S.Mor, Sr. DAG, Haryana.
Mr.Ashish Gupta, Advocate
for the complainant.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Criminal Appeal No.280-SB of 1996 has been preferred by Om Parkash son of Ratti Ram and Chawli wife of Ratti Ram. They have been convicted and sentenced by the Court of Additional Sessions Judge, Sirsa vide his judgment dated 11.3.1996 and order of sentence dated 14.3.1996. They were convicted under Section 304-B Indian Penal Code and have been sentenced to undergo rigorous imprisonment for eight years.
Brief facts of the case can be gathered from FIR Ex.PA/2 registered on the statement Ex.PA made by Ram Kumar to SI/SHO Hoshiar Crl.Appeal No.280-SB of 1996 [2] Singh PW-9. Case FIR No.48 dated 13.2.1988 was registered at Police Station Rania. Ram Kumar stated that he is resident of Village Nejadela Kalan and doing the work of tailoring in the village. Hardei daughter of his elder brother Nand Lal PW-3, aged about 22 years was married about two years ago with Om Parkash son of Ratti Ram according to Hindu religious rites. About 20 days before, Nand Lal had gone to Village Bhuna and brought Hardei back. He had told accused that Hardei will be sent back after one month. Accused Om Parkash came after 8 days and told him that he has to take Hardei back. Complainant told Om Parkash that clothes of Hardei were not stitched and he can take her next day. At that stage, Hardei told him that accused gave her beatings, therefore, she do not intend to go back to her matrimonial home. At that stage, Nand Lal and Narain son of Budh Ram made the girl understand and had gone along with Om Parkash to leave her at Bhuna. In their presence, accused Chawli mother of Om Parkash gave taunts to Hardei that she had brought less dowry. Om Parkash also said that if the dowry promised was not given, he will not keep her and he will remarry. Nand Lal and Narain advised and made them to see reason. They came back to their house and narrated every thing to complainant and his Bhabhi Tulsi Devi. On 12.2.1988 Surja Ram, Member Panchayat was informed that their daughter had fallen in the diggi (water tank) and has died due to drowning. Complainant Nand Lal and Narain reached Bhuna. They enquired about the death of Hardei. No satisfactory answer was given. They came back to the house. At that time, dead body was lying in the house. Complainant made a statement at Civil Hospital, Sirsa and stated that his niece Hardei had committed suicide due to the maltreatment given by her mother-in-law Chawli and husband Om Parkash.
Crl.Appeal No.280-SB of 1996 [3]
The occurrence in the present case had occurred on 12.2.1988 at 7.00 A.M. and statement of Ram Kumar was recorded on 13.2.1988 at 3.00 P.M. at General Hospital, Sirsa, on the basis of which FIR was registered on 13.2.1988 at 4.00 P.M. Special report reached the JMIC/Illaqa Magistrate, Sirsa at 8.00 P.M. on 13.2.1988. The matter was investigated. A report under Section 173 Cr.P.C. was submitted. Thereafter, the appellants were charged by the Court of Additional Sessions Judge, Sirsa that on 12.2.1988 they had caused death of Hardei and they were liable to be tried and punished for the offence under Section 304-B IPC. The accused- appellants pleaded not guilty and claimed trial.
Prosecution examined PW-1 SI Raghbir Singh. He stated that on 14.2.1992 he was posted as SI/SHO of Police Station Rania. On completion of investigation, he prepared a report under Section 173 Cr.P.C. He was cross-examined. He admitted that earlier SI Siri Krishan had sent cancellation report in this case. He stated that he is not in a position to say whether after the said cancellation report, any other material came on file or not. He prepared the report under Section 173 Cr.P.C. after perusal of entire police file. He further submitted that on cancellation report, complainant appeared before the Magistrate and made statement confirming the earlier allegations. He admitted that statement made by the complainant before the Magistrate has not been annexed with the report under Section 173 Cr.P.C.
Complainant Ram Kumar appeared as PW-2. He reiterated the allegations stated in the FIR. He further stated that on the day when they reached village Bhuna, village of the accused, dead body of Hardei was lying in the courtyard. Om Parkash accused, his father Ratti Ram and villagers pressurised them to permit cremation of dead body. Police had Crl.Appeal No.280-SB of 1996 [4] also put pressure upon them. Since they suspected that she had been murdered by her in-laws, therefore, they wanted a post-mortem. Then at 10.00 A.M. dead body was brought to Civil Hospital, Sirsa. Police told them that statement of the complainant would be recorded after the post- mortem examination. He further stated that after the post-mortem examination, his statement Ex.PA was recorded at 3.00 P.M. Ram Kumar PW-2 was cross-examined by the defence counsel. He was confronted with his previous statement Ex.PA. A perusal of cross-examination show that confrontation was not made qua any material portion on any material aspect. However, he admitted that he had told the police that Om Parkash, his father and other villagers pressurised them to permit cremation. When confronted to Ex.PA, where it was not so recorded. He admitted that Ratti Ram father of Om Parkash and two sisters of Om Parkash were married in his village. He was not able to state names of the residents of village Bhuna from whom enquiries were made regarding cause of death of Hardei. He further stated that Nand Lal father of Hardei had refused to sign the statement recorded by the police as police had not read the statement to him. Nand Lal father of Hardei appeared as PW-3. He corroborated the testimony of his brother Ram Kumar. He further stated that he was pressurised by villagers and police to compromise but the offer was declined by them. He stated that police asked him to append thumb impressions on the statement which he refused as statement was not read over to him. In cross-examination he denied that he has concocted the version that police pressurised them for compromise and had made a false case.
PW-4 Dr. Mrs.Santosh Bishnoi had conducted the post-mortem. She found that all organs were congested and lungs were swollen. She Crl.Appeal No.280-SB of 1996 [5] opined that cause of death was asphyxia which was ante mortem in nature and sufficient to cause death in ordinary course of nature. She was not cross-examined.
PW-5 Narain Dass corroborated the testimonies of PW-2 Ram Kumar and PW-3 Nand Lal. PW-6 Inderjit Singh had prepared scaled site plan Ex.PE. As earlier stated SI Hoshiar Singh recorded the statement of Ram Kumar PW-2 Ex.PA on the basis of which FIR Ex.PA/2 was recorded. In cross-examination he stated that he did not record the statement of any body in Village Bhuna, even though many persons of village Bhuna were present there. PW-8 ASI Ravi Dutt had formally arrested both the accused on 1.12.1991 and recorded the statements of Ram Kumar and Inder Singh Draftsman. In cross-examination he proved cancellation report Ex.DB. It was stated that after the cancellation report Ram Kumar complainant filed application to DSP Ellenabad. He admitted that application was not on the Court file or on the police file. He denied the suggestion that enquiry report has been withheld from the Court. ASI Jai Kishan PW-9 stated that he went to Village Bhuna and found the dead body of Hardei lying near diggi of water. The dead body was brought to the house of accused. He further stated that he prepared the inquest report. Thereafter, the prosecution evidence was closed.
Accused were examined under Section 313 Cr.P.C. All incriminating evidence was put to them. They pleaded innocence and stated that they have been falsely impleaded. Hardei had fallen in the diggi while taking out water and died accidentally. Lekh Ram son of Jee Ram was examined as DW-1. He stated that Hardei had died due to accident falling in water diggi. He further stated that along with dead body a bucket was Crl.Appeal No.280-SB of 1996 [6] taken out and a pitcher was lying out side the diggi. In cross-examination, he admitted that deceased had not fallen in the diggi in his presence. Thereafter, the defence evidence was closed.
I have heard Mr.N.K.Sanghi, Mr.S.S.Mor, Senior Deputy Advocate General, Haryana and Mr.Ashish Gupta, counsel for the parties.
Mr.N.K.Sanghi appearing for the appellants has stated that in the present case conduct of the accused and complainant assume importance. He has stated that immediately when the information of death was received, same was relayed to the complainant party. It has been further submitted that dead body was kept at home and the accused waited for the arrival of the complainant party. Thereafter post-mortem was got conducted. He has further submitted that in the present case occurrence had taken place on 12.2.1988 at 7.00 A.M., whereas statement of Ram Kumar complainant was recorded on 13.2.1988 at 3.00 P.M., therefore, it was contended that delay on the part of the complainant to lodge the FIR be taken into consideration, as FIR was lodged as a result of consultations and deliberations as no spontaneous version was available with the complainant. It has been further canvassed before this Court that the marriage was performed 1½ years ago, no demand of dowry was raised before the marriage, at the time of marriage and thereafter. Counsel has read the FIR and has stated that it is Om Parkash husband who came to the complainant's village to take Hardei deceased, then for the first time she had disclosed that she was given beatings by the accused. Therefore, it has been contended that the story of demand of dowry is a made up affair. In the next breath, he has stated that thereafter Nand Lal father of the deceased had accompanied the deceased to her matrimonial home where mother-in-law had taunted her Crl.Appeal No.280-SB of 1996 [7] for bringing less dowry and the occurrence took place 12 days thereafter. Having stated so, argument advanced is that neither there was demand soon before the death nor it was made earlier thereto. Secondly, it has been submitted that no specific demand has been made, no article has been mentioned which was required in dowry. Therefore, it has been stated that a simple saying that dowry was demanded, is not sufficient to hold the appellants guilty especially when the guilt is to be presumed with the aid of Section 113-B of the Indian Evidence Act (hereinafter to be referred as, `the Act'). Counsel state that Section 113-B of the Act can be rebutted by the appellants on probabilities and preponderance of circumstances. Reliance has been placed on a Division Bench judgment of this Court in State of Haryana v. Ram Chander and others, 2003(2) RCR (Criminal) 208 to state that where a particular demand is not made in the shape of material goods or money, the allegations are vague and cannot be relied upon. It has been stated in that judgment that no demand of dowry at the time of marriage or before solemnisation of marriage is sufficient to infer that the allegations levelled are not true. Counsel has further relied upon a judgment of Hon'ble Apex Court in Sham Lal v. State of Haryana, AIR 1997 SC 1873 to urge that prosecution has failed to prove that there was any cruelty or harassment on the part of the appellants soon before the death. It has been submitted that to invoke Section 113-B of the Act, the women have been subjected to cruelty or harassment soon before the death. Counsel to fortify his argument has further relied upon a set of judgments to say that presumption can be rebutted on probabilities and preponderance of circumstances:-
(1) Nagina Ahir v. The State, 1967 Crl. L.J. 1181; Crl.Appeal No.280-SB of 1996 [8] (2) Vijayee Singh v. State of U.P., (1990)3 SCC 190; (2) Devinder and others v. State of Haryana, 1994(3) RCR (Criminal) 78; (3) P.N.Krishan Lal v. Govt. of Kerala, 1995(1) RCR (Criminal) 3; (4) Sarman v. State of Madhya Pradesh, 2006(1) HLR 713; (5) Netar Kumar @ Rakesh v. State of Haryana, 2006(4) RCR (Criminal) 912; and (6) Krishnan v. State of Tamil Nadu, 2006(4) RCR (Criminal) 824.
The judgments cited vary from as to when presumption under Sections 114- A, 105 and 106 of the Act can be rebutted by the accused on basis of circumstances introduced during cross-examination or in defence by showing that prosecution version is improbable and cannot stand judicial scrutiny on the basis of circumstances.
Mr.Sanghi contended that version given by the accused that deceased died a natural death is probable as immediately matter was investigated by PW-9 ASI Jai Kishan who during investigation opined that it is a case of accidental death and had recommended cancellation of the FIR. It has been submitted that opinion of the Investigating Officer who visited the spot immediately, should be given due credence by the Court.
Mr.S.S.Mor appearing for the State has submitted that all essential ingredients of the offence are made out in the case, as deceased died unnatural death within seven years of marriage on account of demand of dowry, therefore, guilt on the part of the accused is to be presumed. Crl.Appeal No.280-SB of 1996 [9]
Mr.Ashish Gupta appearing for the complainant has drawn my attention to scale site plan Ex.PE that wall of the water diggi is 3'-6", therefore, death by accident is to be ruled out and death was on account of demand of dowry. Mr.Gupta has relied upon a judgment of the Hon'ble Apex Court in Venugopal v. State of Karnataka, (1999)1 SCC 216 to say that once from evidence it is established that soon before her death wife was ill treated and she died unnatural death, offence under Section 304-B IPC is complete. Further reliance has been placed on Satbir Singh & Ors. v. State of Haryana, 2005(4) Criminal Court Cases 516. Counsel has read para 6 of the judgment which read as under:-
"6. Undisputedly in this case the death of a woman has occurred during seven years of her marriage. It is also stated that, at the time of marriage the dowry has been paid according to the capacity of the complainant. However, subsequent to the marriage, the deceased Shanti was harassed for not bringing more dowry. Ten days prior to the incident, the deceased had come to the complainant's place and stated that her in-laws were demanding Rs.7,000/- as they wanted to purchase a buffalo. She had further stated that till she brings the desired money, she would not be allowed to reside in her in-laws place. She died in intervening period of 13/14.6.1989 with bodily injury occurs otherwise than under normal circumstances. In our view, the prosecution has been able to establish the ingredients as enjoined under Section 304-B of Indian Penal Code. Once the prosecution is able to establish the aforesaid ingredients, the presumption against the accused starts as Crl.Appeal No.280-SB of 1996 [10] enjoined under Section 113-B of the Indian Evidence Act. Of course, it is a rebuttable presumption and the onus lies on the accused against whom the presumption lies to discharge it. On this aspect the laws are no more res integra. In catena of decisions, this Court has repeatedly held that once that ingredients of Section 304-B IPC have been able to establish by the prosecution, the onus lies on the accused to rebut the presumption under Section 113-B of the Evidence Act. Avoiding multiplicity, we may refer to the decision rendered by this Court in the case of State of Karnataka v.
M.V.Manjunathegowda and another, 2003(1) Apex Court Judges 543 (S.C.): 2003(2) SCC 188 at page 189 this Court said that:
"In order to establish the offence under Section 304-B IPC the prosecution is obliged to prove that the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and such death occurs within 7 years of her marriage and if it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband, such harassment and cruelty must be in connection with any demand for dowry. If the prosecution is able to prove these circumstances then the presumption under Section 113-B of the Evidence Act will operate. It is a rebuttable presumption and the onus to rebut shifts on the accused. The defence of the Crl.Appeal No.280-SB of 1996 [11] accused was a total denial. Therefore, the presumption as to dowry death envisaged under Section 113-B of the Evidence Act remains unrebutted."
I have given my thoughtful consideration to the rival contentions of the counsel for the parties. To give consideration to the rival contentions, I have again read the testimonies of PW-2 Ram Kumar and his brother PW-3 Nand Lal father of the deceased which reveal that version set out by them is natural, probable and convincing. They have stated that when they reached the village, they were pressurised to permit cremation of the dead body. Police officials present there also compelled them to hush up the matter and compromise. On their refusal and insistence, dead body was taken to the hospital on 12.2.1988 at 10.00 P.M. It is to be noticed that both PW-2 Ram Kumar and PW-3 Nand Lal were in the village which belong to the accused. The surroundings were not very congenial to them. The pressure was put upon them, therefore, delay, if any, has been sufficiently explained. PW-3 Nand Lal has stated that in his presence mother-in-law had taunted Hardei for bringing less dowry. They had made an effort and rehabilitate her to live there by making enteritis to the accused to see reason. Earlier thereto Hardei had disclosed to Ram Kumar PW-2 that she was being given beatings by the accused. `Soon before' is to be applied in the facts and circumstances of the case. In the present case, harassed deceased had disclosed regarding beatings being given to her. In the presence of the witness, mother-in-law had taunted her for bringing less dowry. Therefore, it was a continuous harassment and cruelty which led the deceased to commit suicide. Submission made that unless a particular dowry article is mentioned, demand of dowry cannot be construed, is Crl.Appeal No.280-SB of 1996 [12] fallacious. A reading of the FIR reveal that accused Om Parkash had stated that in case dowry promised was not given, he will re-marry. These circumstances are enough to infer that the deceased had committed suicide on account of harassment and cruelty perpetuated by the accused-appellants. Therefore, offence under Section 304-B IPC is made out. In the present case, occurrence had taken place in 1988. Appellants have suffered a protected trial of 19 years. The trial Court had awarded sentence of eight years rigorous imprisonment. Minimum sentence prescribed under Section 304-B IPC is seven years. Ends of justice would be met, if the sentence awarded is reduced to seven years rigorous imprisonment.
With aforesaid modification in the order of sentence, the appeal is dismissed.
( KANWALJIT SINGH AHLUWALIA ) February 4, 2008. JUDGE RC