Punjab-Haryana High Court
Kamal Kumar And Another vs State Of Punjab on 8 March, 2010
Author: A.N.Jindal
Bench: A.N.Jindal
Criminal Appeal No.1056-SB of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1056-SB of 1999
Date of Decision 08.03.2010
Kamal Kumar and another
...... Appellant(s)
VERSUS
State of Punjab
...... Respondent(s)
CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL
Present: Mr.Bipan Ghai, Senior Advocate,
with Mr.Sandeep Gehlawat, Advocate,
for the appellant.
Mr.C.S.Brar, Deputy Advocate General, Punjab.
*****
A.N.JINDAL, J(ORAL):
Kamal Kumar (husband), Aarti (mother in law), Kapal Kumar @ Rakesh Kumar (brother-in-law), Madan Lal (father in law) and Geeta Rani (married sister) were prosecuted for the offences under Section 304-B IPC for causing dowry death of Seema. Vide judgment dated 05.10.1999, Addl. Sessions Judge, Amritsar, while acquitting the accused Madan Lal, Kapal Kumar and Geeta, convicted the accused-appellants Kamal Kumar and Aarti (herein referred as 'the accused') and sentenced them to undergo rigorous imprisonment for a period of 10 years under Section 304-B IPC.
About 1¼ years prior to the occurrence, Harbans Lal complainant (herein referred as 'the complainant'), resident of Pawan Nagar, Batala Road, Amritsar, had married his elder daughter Seema to the accused Kamal Kumar. On 07.03.1997, at about 4:30 p.m., Ashok Vohra (a neighbour of the accused) informed the complainant that his daughter had committed suicide by burning. At this, he rushed to the house of the accused at Jawahar Nagar and saw that the dead body of Seema was lying in the courtyard, there he got recorded his statement Ex.PD before ASI Vishwa Criminal Appeal No.1056-SB of 1999 2 Mitter, Police Station Vijay Nagar, which was completed on 5:30 p.m. and vide endorsement Ex.PD/1, ASI Vishwa Mittar sent it to the police station on the basis of which FIR was registered at Police Station Sadar, Amritsar at 6:20 p.m. on the same day. In his statement Ex.PD, complainant disclosed that her daughter has been killed by her husband Kamal Kumar and her mother-in-law and he had seen both of them near the dead body destroying the evidence by cleaning the courtyard. Both of them had been compelling Seema to bring more money. He further stated that Madan Lal (father in law), Kapal Kumar (brother in law) and Geeta (sister in law), were also harassing to bring more dowry and compelling her to commit suicide.
During investigation of the case, Investigating Officer reached the spot; got the photographs of the dead body, lifted the match box Ex.P1, partly burnt jacket Ex.P2 and one plastic cane smelling kerosene Ex.P3 and took the same into possession vide different memos. On 08.03.1997, he arrested the accused Aarti and on 14.05.1997, he arrested the remaining accused. He also took into possession five photographs Ex.P4 to Ex.P8 with five negatives Ex.P9 to Ex.P13. On completion of investigation, challan was presented against the accused.
On finding a prima facie case against the accused, they were charged under Section 302/34 and in the alternative under Section 304B IPC to which they pleaded not guilty and claimed trial.
In order to substantiate the charges, prosecution examined Dr.Ashok Chanana, Asstt. Professor, Department of Forensic Medicine, Govt. Medical College, Amritsar (PW1), Harbans Lal, father of the deceased (PW2), who had reiterated the prosecution version while terming all the persons named in the FIR as the accused, Surjit Kaur, mother of the Criminal Appeal No.1056-SB of 1999 3 deceased, (PW3), Kul Bhushan Duggal (PW4), is a witness to the recovery of match box Ex.P1, one jacket of green colour partly burnt Ex.P2 and plastic can Ex.P3, ASI Vishwa Mittar is Investigating Officer (PW5), Constable Baljit Singh (PW6), Rishi Ram, Draftsman (PW7) and Constable Vikram Singh (PW8) are the formal witnesses, Davinder Kumar (PW9), had proved the photographs Ex.P4 to Ex.P8 and the negatives Ex.P9 to 13, When examined under Section 313 Cr.P.C.,the accused persons denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Kamal Kumar further explained as under:-
"In fact on the day, my wife died, no body was having any version and on the next day, at the instance of others, my in laws got a false case registered against me. On the day of occurrence, it was a Shivratri festival. In the morning I and my wife had altercation due to certain domestic reasons. Thereafter we remained together. When I had gone to Mohalla as Shivratri Langar was being distributed, it was informed that shrieks were emitting from my house. I then went running there alongwith many other persons, present at the langar, and found my wife in burnt condition and she died giving us no opportunity of being taken her to the hospital. I neither demanded any dowry nor harassed or maltreated her. The allegations against me are false."
Accused Aarti also explained as under:-
"My daughter Geeta Rani was living at Phillaur since 2 months prior to the occurrence. I had gone to Phillaur and had undergone surgery there. I was unwell. The allegations against me are false."
In defence, the accused examined Tilak Raj, Property Dealer, Jawahar Nagar, Phase-II, Amritsar (DW1). He has deposed that Kamal Criminal Appeal No.1056-SB of 1999 4 Kumar had participated in Shivratri langar on that day. At about 2:30 p.m., on seeing the smoke, being emitted from the house of Kamal Kumar, we reached and found Seema lying in burnt condition. No family member was present there.
After appreciation of evidence, the trial Court, while acquitting the accused Kapal Kumar, Madan Lal and Geeta Rani, convicted the accused Kamal Kumar and Aarti under Section 304-B IPC and sentenced them accordingly.
Arguments heard. Record perused.
In order to substantiate the charges against the accused amongst others, the following essentials are also to be proved:-
1. that the death of a woman is caused by any burns or bodily injury or occurred otherwise than under normal circumstances; within seven years of her marriage.
2. It must be shown that before death, she was subjected to cruelty or harassment by her husband or any relative of husband for or in connection with demand of dowry.
On satisfaction of the above two ingredients, the presumption under Section 113-B of the Evidence Act will follow. Of course, there may be any whatsoever, however, the right to rebut the same by the accused through satisfactory evidence is available. Section 113-B as added under the Evidence Act, 1872 with regard to drawing of presumption reads as under:-
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 has 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." Criminal Appeal No.1056-SB of 1999 5 The word "Dowry" shall have the same meaning as in Section 304-B of the IPC.
On perusal of the aforesaid provision, it could essentially be said that after the complainant establishes that the marriage between the parties had taken place within seven years prior to her death and she was harassed and maltreated by the accused or his relatives and she died other than in natural circumstances at the house of the accused then the presumption under Section 113-B shall be attracted that accused had caused "dowry death".
In the instant case, there is no denying a fact that the marriage between the parties took place 1¼ years back. The factum with regard to marriage has not been denied. The deceased was having no such disease, deformity or disorder which could be the cause for the deceased to take her own life. A hale and hearty young girl, who after breaking the bond of virginity, had entered into the marital world with the unimaginative and wonderful dreams. She never imagined that even after the marriage, she would look back towards her parents for her well being and to satisfy the demands of her in laws but all the circumstances proved adverse which compelled her to take the extreme step. No sane girl, unless compelled by circumstances, would sacrifice her life while ignoring her parents, children as also the matrimonial house.
As regards the demand of dowry, the complainant in her statement Ex.PD has specifically levelled allegations against the accused for maltreating, harassing and torturing her to bring more dowry. Notwithstanding the fact that no imputations regarding the details of the demands were made in the FIR, the story of the prosecution cannot be Criminal Appeal No.1056-SB of 1999 6 turned down, as the complainant, at this very initial stage, while perplexed, annoyed and frustrated over the death of his daughter could not be expected to ascribe full details of everything. Even otherwise, first information report cannot be taken as encyclopedia of the case. The elaboration facts could be made by the informant later. In his statement Ex.PD, on the basis of which FIR was lodged, the complainant (PW2) has repeatedly reiterated that these two accused had been demanding more dowry and for that they were harassing and torturing her daughter and this very version has been explained by him in his examination in chief that the accused had been demanding dowry. While elaborating, he has stated that once they had raised the demand of Rs.15,000/- and also asked for TV, 8 days prior to her death. The deceased Seema had also informed him about the designs , demands and expectations of the accused. Complainant has gone on to state that his daughter Seema had asked him to give money to Kamal Kumar as he has been pressing her for the same. About three months prior to the occurrence, Kamal Kumar had left Seema at his residence for want of non- fulfillment of his demands. Even despite his requests, the accused did not take her back, however, he alongwith Karam Singh and Kul Bhushan Dugga went to the house of the accused Kamal Kumar and after great persuasions, she was left in her in laws house but on account of non-fulfilment of their demands, she was again turned out of the house. The statement of complainant (PW2) stands corroborated by Surjit Kaur (PW3) in all material particulars. They have withstood the test of cross examination. As regards the argument with regard to independent corroboration to their testimonies, it is noticed that the matrimonial disputes normally remain confined within the four walls of parental or matrimonial house. When the marriage goes to Criminal Appeal No.1056-SB of 1999 7 rough whether earnest efforts are made by the parents of the girl to bear with it and make an endeavour to settle the matter amicably, quietly and silently. They with the hope that repute of the family is not dragged in the streets and the gap between the couple may not widen avoid making it public. In any case, the testimonies of the witnesses, who naturally being present in the house and well acquainted with circumstances prevailing in the families are the best witnesses to disclose about the same and they cannot be disbelieved merely for the reason that they are relation witnesses. As such, non-joining or non-examining of any independent witness hardly affects the prosecution case. Furthermore, it is the quality of the evidence which is to be seen and not the quantity. The parents are the best witnesses to disclose as to what the accused were demanding; to what extent they had satisfied the demands and to what extent the demands remained unsatisfied. The demands were certainly made soon before her death as both the witnesses have categorically stated that about 8 days prior to the death, Kamal Kumar and his mother had placed demand of Rs.15,000/- and Seema had also come to their house and told that she was being harassed and tortured for non-fulfilment of the demands.
The case of defence stands belied by the photographs taken immediately after the occurrence. It is the definite defence of the accused that accused Aarti had gone to phillaur whereas she is shown to be sitting near the dead body of Seema at the time when photographs were taken. Had she undergone the surgery at phillaur, there was no reason to reach the house in that state of things and health as explained by her.
Much time had not passed since the celebration of marriage. It could well be assessed from the evidence led by the prosecution and the Criminal Appeal No.1056-SB of 1999 8 circumstances of the case that the accused had no love and affection with her but were only over expecting from her. The period of one year and three months was wasted in ego, hatred, quarrels, annoyance while placing the demands for dowry. They failed to make her as member of their family due to their egoist and aggressive attitude whereas complainant (PW2) continued make endeavours to persuade the accused for settling her daughter. No doubt, exaggeration has been made regarding Kapal Kumar, Geeta Rani and Madan Lal as they had nothing to do with the articles of dowry and no sufficient evidence could be led against them, but at the same time, ample evidence has been led against them that they were expecting and compelling the deceased to bring more dowry.
While examining the case from another angle, Seema died within 1¼ years of her marriage at the house of the accused. Sufficient evidence has been led in order to establish that she died other than normal circumstances, then in such situation the accused were to explain as to how this live body of a hale and hearty young girl was turned into corps within the twinkling of an eye. If no sufficient explanation comes forth then the inference would be drawn against them.
The submission made by learned counsel for the appellants that demand of Rs.15,000/-, made by the accused, is not covered by the definition of "dowry" is without any merit. In this case, it was not only the demand of money but the accused has also raised the demand of TV. In order to prove the atrocities of the accused upon the deceased on account of the demands, Harbans Lal complainant (PW2) has stated that about 3 months prior to the death of Seema, accused Kamal Kumar had dropped her at his house. However, with the intervention of the Panchayat, consisting of Criminal Appeal No.1056-SB of 1999 9 Karam Singh and Kulbhushan Duggal, coucillor, she was sent back but again the accused started harassing her. Seema told the complainant that the accused has been demanding the money or TV. PW3 Surjit Kaur, mother of the deceased, has also reiterated the fact regarding the demand of Rs.15,000/- by stating that prior to the death of Seema, the accused Kamal Kumar reached her house and told that Seema was being harassed on account of the demand of dowry. However, as regards the argument that the demand of money does not fall within the definition of dowry as given in Section 2 of the Dowry Prohibition Act, 1961. I need to reproduce Section
2 of the Dowry Prohibition Act, 1961, which reads as under:-
"Definition of "dowry" - In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly:-
(i)by one party to a marriage to the other party to the marriage; or
(ii)by the parents of either party to a marriage or by any other person, to either party to the marriage to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dowry or mahr in the case of persons to whom the Muslim Personal Laws (Shariat) applies."
Dowry in the sense of expression as contemplated by Dowry Prohibition Act, 1961 is a demand for property or valuable security having an inextricable nexus with the marriage i.e. it is a consideration from the side of the bride's parents or relatives to the groom or his parents and/or guardian for the agreement towards the bride-to-be.
Dowry includes any property or valuable security given by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person, at, before or any time after the marriage Criminal Appeal No.1056-SB of 1999 10 (in connection with the marriage of the said parties).
While interpreting the word "dowry" as defined in the Act, the Apex Court in case State of Andhra Pradesh vs. Raj Gopal Asawa. AIR 2004 SCW 1566 observed that definition of dowry is not restricted to agreement or demand for payment of dowry before and at the marriage but also includes demands made subsequent to marriage.
Thus, on overall analysis of the aforesaid provisions, it comes out that when the deceased is harassed, maltreated, tortured or otherwise met with cruelty at the hands of the husband or his relatives and conditions are put to meet with their demands for the well being of the deceased, such demands may be in cash or kind could be termed as "dowry".
Be that as it may, any demand made out of the compulsions for survival or livelihood due to extreme poverty may not fall within the definition of dowry yet the person having the intention to get undue advantage of his dominance over the weaker sex and to exploit her well being places any demand of dowry then that too also covers the dowry which may be subject of penalty under the Dowry Prohibition Act, 1961 or the Indian Penal Code whatever the case may be. It was observed in case Hem Chand versus State of Haryana, 1994 (3) RCR 625 (SC) that the demand of money also fall within the purview of demand of dowry. In case Koshalya versus State of Punjab, 1994 RCR 48 (P&H), the demand was made by the husband from his in-laws through his wife for a sum of Rs.50,000/- for opening a shop. Another demand of Rs.50,000/- was made by him for purchasing the articles to be exhibited for sale in the said shop. When the parents of the bride failed to fulfill such demand, she was subjected to cruelty as a result whereof she died on account of burn injures. Criminal Appeal No.1056-SB of 1999 11 In such circumstances, the Court took the view that it was a dowry death. The judgment Ramesh Kumar versus State of Haryana 1999 (3) RCR (Criminal) 437, relied upon by the counsel for the appellant is on different set of facts and is not applicable to the facts of the present case. However, in view of the observations made by the Three Judge Bench, made in Hem Chand's case (supra) demand of amount for purchase of a plot by the husband from his in-laws through his wife fell within the definition of dowry. No help could be drawn by the counsel for the appellants from Ramesh Kumar's case (supra). The trial Court was thus right in holding that such demand falls within the definition of "dowry". The instant case is on a better footing as the accused was demanding not only Rs.15,000/- but TV also. Defence, as set up by the accused, lacks any probability and naturalness.
Now coming to the quantum of sentence, it may be observed that day in and day out, the dowry deaths of young girls in this tradition ridden society are on the increase. The husband and his parents, relating to any sect or strata of the society, try to oppress and exploit the bride and her family with variety of demands irrespective of their capacity to satisfy such demands. Resultantly, the young brides consider themselves to be a continuous burden upon their parents even after marriage and without causing further damage to them choose to isolate themselves from the world and prefer to stay away from the matrimonial house so that they may not become the subject of oppression for their parents. Despite the various enactments and amendments made in the Indian Evidence Act, this social evil could not be arrested. However, it is also equally settled that the sentence should commensurate the nature and gravity thereof and also the Criminal Appeal No.1056-SB of 1999 12 circumstances in which it was committed. In the instant case, keeping in view the peculiar circumstances that Kamal Kumar has already undergone 3 years 2 months and 11 days and accused Aarti has undergone about 2½ years of the substantive sentence. They have already suffered a lot on account of the protracted proceedings, therefore, it would be in the fitness of things if some reduction in the sentence could be made.
As a result of the aforesaid discussion, this appeal is dismissed with the modification in the sentence which is reduced to 7 years.
Copy of the judgment be sent to Chief Judicial Magistrate, Amritsar, for compliance.
(A.N.Jindal) Judge 08.03.2010 mamta-II