Punjab-Haryana High Court
Harinder And Others vs State Of Haryana on 11 August, 2008
Author: Jora Singh
Bench: Jora Singh
Crl. Appeal No.272-SB of 1995 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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Crl. Appeal No.272-SB of 1995
Date of decision : 11.8.2008
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Harinder and others
............Appellants
Versus
State of Haryana
...........Respondents
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CORAM: HON'BLE MR. JUSTICE JORA SINGH
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Present: Mr. K.K Aggarwal, Senior Advocate with Sh. Kapil
Aggarwal, Advocate and Mr. R.K Agnihotri, Advocate for
the appellants.
Mr. K.S Godara, Deputy Advocate General, Haryana.
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JORA SINGH, J.
Harinder son of Daryao Singh, Balwan son of Daryao Singh and Dharmo wife of Daryao Singh have preferred this appeal against the judgement/order dated 3.5.1995 rendered by Additional Sessions Judge, Sonepat in Sessions Case No.243 of 1993 bearing First Information Report no.52 dated 19.2.1993 registered at Police Station Kharkhoda under Sections 498-A and 304-B of the Indian Penal Code, whereby, appellants-accused were convicted under Section 304-B IPC and were sentenced to undergo RI for ten years.
Prosecution story, in brief, is that Anita, deceased sister Crl. Appeal No.272-SB of 1995 2 of the complainant, Raghuvinder Singh was married with Harinder Singh on 10.6.1990. After marriage, Anita started residing with her husband at village Silana. Rajpal, father of Anita had died much earlier to her marriage. Complainant, his brother and mother had given sufficient dowry according to their status. But the accused were not satisfied with the dowry articles. They started ill-treating Anita for want of dowry. They demanded a scooter and cash. Once on a night in winter season in the month of December, Anita was kept on the roof of the house without clothes and was not allowed to enter the house. Anita had disclosed about that incident to her brother, Raghuvinder Singh when he came to meet her, 15 days after that incident. Anita was brought by Raghvinder Singh to his house. Raghuvinder Singh then contacted his maternal uncle, Malha Ram, resident of Village Kathura. Malha Ram had approached the accused and made them to under stand. After returning from the house of the accused, Malha Ram advised the complainant and his family members to send Anita to village Salana if somebody comes from her matrimonial home to take her. After a lapse of 3-4 days, Bijender, brother of Harinder accused came to take Anita with him to her matrimonial home. Anita was sent with Bijender. But, the accused again started maltreating Anita for want of dowry. Anita had informed the complainant when he had gone to her after about a month to enquire about her well-being. The accused Balwan and Dharmo demanded scooter from Raghvinder Singh, complainant. About 9/10 months prior to the date of occurrence, again Anita had gone to her parental house and informed her family members that Crl. Appeal No.272-SB of 1995 3 the accused used to beat her and that she is being pressurized to bring scooter and cash. Complainant had summoned his maternal uncle, Malha Ram. An amount of Rs.25,000/- was arranged. Payment was given to Anita. Anit went back to her matrimonial home with the aforementioned payment. Thereafter, complainant continued to visit her sister at Village Salana. He came to know that accused are still demanding a scooter. About 1½ months prior to her death, Anita was brought to her parental house by the complainant. After 3-4 days, Bijender, brother of Harinder and Daryao Singh father of Harinder came to the village of the complainant and assured him that Anita is to be kept properly in future. On the assurance of Bijender and Daryao Singh, Anita was again sent to her in laws house. But, while going Anita was weeping and was saying that her life is to be in danger, in case scooter is not given. Complainant requested the accused to keep Anita properly and assured that a scooter will be arranged when he gets employment. After 15 days, again he had gone to the house of Anita. At that time, Anita was weeping. She had told the complainant to give a scooter to her in- laws, otherwise her life is to be in danger. On return to village Salana, complainant had narrated about the incident to his brother and mother and they were thinking to approach Malha Ram to send him to the house of the accused. On the intervening night of 17- 18/2/1993, Balraj Singh, son of Malha Ram came and informed about the unnatural death of Anita. Complainant, his brother Vijay Pal and Balraj had gone to the house of the accused at village Salana on 18.2.1993 at about 8/9 A.M. Dead body had already been sent to Crl. Appeal No.272-SB of 1995 4 hospital for post mortem examination. After post mortem examination, dead body was brought to Salana for cremation. Malha Ram was also present at the time of cremation with the complainant. After cremation, complainant, Malha Ram and Vijay Pal had gone to Village Sisana, where elder son of Malha Ram was married. Accused had convened a Panchayat and made an effort to settle the dispute through compromise. However, compromise could not be materialized. On 19.2.1993 at about 7:00 P.M, statement by the complainant was recorded. Ultimately FIR No.52 was registered.
Prior to the lodging of the First Information Report, Ex.PF, ASI, Ram Chander had conducted inquest proceedings Ex.PD at Village Salana. After conducting inquest proceedings, dead body was sent for post mortem examination through Constable Wazir Singh PW-10. Before sending the dead body for post mortem examination, the rope used for strangulation and a pair of chappals belonging to the deceased were taken into police possession vide memo attested by the witnesses. Rough site plan with correct marginal notes was also prepared. Clothes worn by the deceased were produced before the Investigation Officer and the same were taken into police possession vide a separate memo.
After completion of the investigation, accused were challaned.
Copies of the challan were supplied to the accused and the same were found to be correct after scrutiny.
Vide order dated 6.7.1993 passed by Judicial Magistrate Ist Class, Sonepat, case was committed to the Court of Session for Crl. Appeal No.272-SB of 1995 5 trial.
After hearing learned Public Prosecutor for the State and the defence counsel for the accused, trial Court opined that a prima facie case is made out to frame charge under Sections 498/304-B IPC. Charge was accordingly framed to which the accused did not plead guilty and claimed trail.
In order to substantiate the charges, prosecution examined as many as eleven witnesses.
PW-1, Mahinder Singh Bhardwaj, Draftsman had prepared the scaled site plan of the place of occurrence with correct marginal notes.
PW-2, Dr. O.D Sharma, Medical Officer, ESI, Dispensary, Sonepat was the Member of the Board and had conducted post mortem examination on 18.2.1993 at 2:15 P.M. Ligature mark was noted on the neck. As per the Board of Doctors, cause of death of the deceased was due to asphyxia as a result of hanging which was ante mortem in nature and sufficient to cause death in normal course of life.
PW-3, Chotu Ram, Constable had handed over a Special Repot to Illaqa Magistrate and other officers.
PW-4, Head Constable, Rajbir Singh was with the party of ASI, Ram Chander on 18.2.1993 and had gone to the place of occurrence. A rope and a pair of chappals were taken into police possession in the presence of Head Constable, Rajbir Singh by ASI, Ram Chander.
PW-5, Shiv kumar, Photographer had clicked the Crl. Appeal No.272-SB of 1995 6 photographs of the place of occurrence.
PW-6, Balraj on oath stated that on 17.2.1993, Devinder had informed him that Anita has committed suicide. Then, on the request of his unlce, Balraj had gone to village Karsola to give the information about the incident.
PW-7, ASI, Satbir Singh had arrested Dharmo produced by Krishan.
PW-8, Raghuvinder Singh is the brother of the deceased and on oath stated that his sister Anita was married with Harinder Singh on 10.6.1990. Sufficient dowry was given at the time of marriage. But the accused were not satisfied with the dowry articles. Accused started demanding a scooter and cash. Once in the month of December, Anita was kept on the roof of the house without clothes and was not allowed to enter the house. Anita had disclosed this incident to him. After fifteen days, he had gone to see Anita and brought Anita along with him. Matter was brought to the notice of his brother, Vijay pal and mother Khazani Devi. Information was also given to Malha Ram. Malha Ram was sent to the village of the accused to make them to understand and on return Malha Ram advised them to send Anita to her matrimonial home if somebody comes from there to take her. After a gap of 3-4 days, Bijender, brother of Harinder came. Anita was sent along with Bijender. Thereafter, he went twice to the house of Anita after a gap of 15 days to enquire about her well-being. Anita on both the occasions reported that accused are harassing her to bring cash and scooter. About 9-10 months prior to the date of occurrence, Anita again came Crl. Appeal No.272-SB of 1995 7 to her parental house and stated that she may be given some cash to settle down in the in-laws house. An amount of Rs.25,000/- was arranged and was handed over to Anita. Anita was sent to her in- laws house. Again he had visited the house of the accused about one or two months prior to her death. Anita reported that accused are still harassing her. Accused told him that Anita will be deserted by them, if the demand of a scooter is not fulfilled. Anita was again brought back. After 2/3 days, Bijender and Daryao Singh, father of Harinder came to take Anita and assured that in future Anita will not be harassed and will be kept properly. On the request of Bijender and Daryao Singh, Anita was sent with them. After 15 days again, he had gone to the house of Anita. At that time, Anita was weeping. She requested to give a scooter to her in-laws, otherwise her life is in danger. He requested them to send Anita, but, at that time, Anita was not sent by the accused. He assured them that he will give a scooter when he got some employment. Matter was brought to the notice of his brother and mother when he had reached his village. They were thinking to send Malha Ram to the house of the accused. But, on the intervening night of 17th and 18th of February, 1993, Balraj came and informed about the unnatural death of Anita. On 18.2.1993 at about 8:00/9;00 A.M, he along with Vijay Pal and Balraj had gone to the house of the accused. Dead body of Anita had already been sent to Civil Hospital for post-mortem examination. After post mortem examination, dead body was cremated. Then, they had gone to village Sisana. Panchayat was convened by the accused to arrive at a compromise. On 19.2.1993, at 7:00P.M, Crl. Appeal No.272-SB of 1995 8 report was lodged.
PW-9, Malha Ram has supported the version of PW-8 by saying that Anita was married with Harinder. Accused were demanding cash and a scooter. On the request of Raghuvinder, he had gone to the house of the accused and they were made to understand. Again after 8-9 months, Raghuvinder Singh came and reported that accused are harassing Anita for want of dowry. He had given Rs. 12,000/- to Raghuvinder Singh. Payment was made to Anita at Village Kirsola. Raghuvinder again came and reported that Anita is still being harassed for want of dowry. He was planning to visit the house of the accused. On account of his personal engagements, he could not visit the house of the accused. Devinder resident of Bohar came to his house at about 11:00 P.M and reported that Anita has committed suicide. Balraj was sent to inform the complainant. On the next date, he had gone to the village of the accused at about 11:00 A.M. PW-10, Wazir Singh, Constable got the post mortem examination conducted. Doctor had handed over to him a packet containing the articles worn by the deceased, which was handed over by him to ASI, Ram Chander who took the same into custody vide memo Ex.PG.
PW-11, ASI, Ram Chander stated that on 18.2.1993, he had prepared inquest report. Dead body was handed over to Constable Wazir Singh for getting post mortem examination conducted. Rope and chappals were taken into police possession vide a separate memo attested by the witnesses. Rough site plan of Crl. Appeal No.272-SB of 1995 9 the place of occurrence was also prepared. Articles of the deceased were produced before him in the shape of a packet. The packet was taken into police possession and was deposited with the incharge of the malkhana. Accused were arrested on 23.2.1993.
After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused is that case is false. Actually Anita was suffering from mental disorder. Anita was mentally depressed because she could not bear a child. Anita was got treated from a doctor. No demand of dowry was ever made by the accused. They had sent intimation about the death of Anita through Devender. Version of Harinder, accused was that on the day of occurrence, he was at Chandigarh. Davinder had given intimation to Malha Ram.
In defence, DW-1, Dr. R.L Garg deposed that Anita had come to his clinic for treatment on 29.9.1992. She was suffering from mental depression. She again visited his clinic on 17.10.1992, 15.11.1992, 14.12.1992, 5.1.1993 and 12.11.1993. Various medicines were prescribed to her. But, on cross-examination admitted that no signature or thumb impression of Anita were obtained on the treatment record Ex.DD or in the register. No identification mark of Anita was there on the record.
DW-2, Bhale Ram, Head Constable stated that ASI, Ram Chander had left the police station on 17.2.1993 at 10:30 P.M and came back on 18.2.1993 at 5:50 P.M. Ex.DE and Ex.DF are the Crl. Appeal No.272-SB of 1995 10 copies of the respective entries. On 19.2.1993 at 7:20 P.M, ASI, Ram Chander had left the police station and came back on 20.2.1993 at 4:35 P.M. Copies of both these entries are Ex.DG and Ex.DH respectively.
DW-3, Jagbir singh, Pharmacist stated that Anita wife of Harinder resident of Salana as per record is stated to have come to the hospital on 4.2.1993 as an out-door patient. Ex.D1 is the photocopy of the outdoor ticket.
After hearing learned Public Prosecutor for the State, defence counsel for the appellants-accused, trial Court had convicted and sentenced the appellants-accused as stated aforesaid.
I have heard learned defence counsel for the appellants- accused and learned State counsel at length.
Defence counsel for the appellants-accused argued that Anita was the legally wedded wife of Harinder. Marriage was solemnized on 10.6.1990. Anita failed to produce any child. She was under depression. She was medically treated by Dr. R.L Garg. Intimation was given to the complainant-party about the death of Anita. After post mortem examination, dead body was cremated in the presence of the complainant-party. No report to any authority was lodged, at that time. Ultimately, report was lodged on 19.2.1993, whereas the occurrence was on 17.2.1993. No explanation why delay. If, complainant-party was of the view that Anita was being harassed by the appellants-accused for want of dowry, then, immediately, on receipt of information qua unnatural death of Anita, report should have been lodged. No explanation why delay. No Crl. Appeal No.272-SB of 1995 11 evidence from the side of prosecution that appellants-accused had demanded dowry soon before death. No evidence by the prosecution that Anita was abetted to commit suicide. In fact, death is not homicidal. When, Anita failed to produce a child, then, she committed suicide. She was under depression. If the appellants- accused had committed the crime, then why they were not immediately arrested. Arrest was on 23.2.1993. No allegation that appellants-accused were absconding. Immediately after the death, Darayao Singh, father-in-law of the deceased had reported the matter to the police. But prosecution evidence was not scrutinized with great care and caution. When death is not homicidal, then, at the most, only Harinder can be convicted under Section 306 because Balwan and Dharmo were not to be benefitted in case cash is paid or scooter is given.
Learned Public Prosecutor for the State argued that delay was fully considered by the trial Court. There was demand immediately before the present occurrence. Deceased was being harassed by the appellants-accused for want of dowry. If intention of the complainant-party was to falsely implicate the appellants- accused, then all the members could easily be implicated. No case was got registered against Daryao Singh. If the appellants-accused were not at fault, then, immediately after the occurrence, appellants- accused were expected to inform the complainant-party. There was no idea to approach the police. Harinder is in police Department. He knows the intricacies of law. Defence was created. All the points raised by the defence counsel were considered by the trial Court. Crl. Appeal No.272-SB of 1995 12
First submission of the learned defence counsel for the appellants-accused was that there is a delay in lodging the FIR. Delay was not explained. Story was concocted. Appellants-accused were falsely implicated by citing some interesting witnesses. But I am not in a position to agree with the submission of the learned defence counsel for the appellants-accused.
Undisputedly, Anita was married with Harinder. Marriage was solemnized on 10.6.1990. Occurrence was dated 17.2.1993. FIR was lodged on 19.2.1993. Death was within seven years from the date of marriage. Death was at in-laws house. Evidence on the file shows that on the intervening night of 17/18-2-1993, complainant- party came to know about the incident from Balraj, PW-6. Firstly, Malha Ram came to know about the incident then Balraj was sent to inform the complainant-party. After getting information, complainant- party had gone to the house of the appellants-accused on the next date at about 8:00/9:00 A.M. No doubt, dead body was cremated in the presence of the complainant-party. But after the cremation, accused party convened a Panchayat to effect compromise. When compromise could not be effected, then report was lodged. Occurrence is an admitted fact. Only dispute is whether accused party is at fault or on account of depression, deceased had committed suicide. Bijender is brother of Harinder, appellant- accused, Daryao Singh is the father of Harinder. But all the family members of Harinder were not implicated. If intention of the complainant-party was to falesely implicate the in-laws of the deceased, then all the family members could easily be named. But Crl. Appeal No.272-SB of 1995 13 only those members were named, who were harassing the deceased for want of dowry. Defence version of the appellants-accused was that intimation was sent to the complainant-party through Davinder. Davinder had given intimation to Malha Ram. But Davinder was not produced in defence to state that when Anita had committed suicide, then he was sent to inform the complainant-party. As per evidence on the file, death was unnatural. If the appellants-accused were not at fault, then, complainant-party should have been informed. There was no idea to approach the police without informing the complainant-party. In fact, Harinder is in the Police Department when he came to know about the incident, then he concocted entire story to avoid any controversy. Statement of Daryao Singh is Ex.PB at 11:40 P.M. As per Ex.PB, wife of Daryao Singh was present in the house. After seeing that Anita had committed suicide, then, Daryao Singh had gone to inform his relations. Shera, Chowkidar was also present there. Darayo Singh had noticed the dead body at about 3:00 P.M. But no suggestion to any witness that intimation was given to the complainant-party. Shera-Chowkidar was not produced to state that dead body was noticed by Darayo Singh. After leaving him on the spot, Daryao Singh had gone to inform his relations. No one appeared in defence to state that he was informed by Daryao Singh. That means delay is not fatal. Delay was fully explained. When compromise could not be effected, then, case was got registered. All the family members were not named. PW 8 & PW 9 in examination- in-chief stated that before the present occurrence, deceased used to tell them that she is being harassed for want of dowry. Delay, if any, Crl. Appeal No.272-SB of 1995 14 is not sufficient for the acquittal of the appellants-accused. Delay is one of the suspicious circumstance to scrutinize the evidence with great care and caution. Something could be said if all the family members would have been implicated. Trial Court had rightly considered the delay.
Next submission of the defence counsel was that no evidence from the side of prosecution that the appellants-accused had harassed the deceased for want of dowry soon before the death. I have gone through the evidence on file. But, not in a position to agree with the submission of the learned defence counsel. Deceased was married on 10.6.1990. But the accused were not satisfied with the dowry articles. Accused started demanding a scooter and cash. Once in the month of December, Anita was kept on the roof of the house without clothes and was not allowed to enter the house. Anita had disclosed this incident to her brother, Raghuvinder after fifteen days, had gone to see her. Raghuvinder came back to his house and brought Anita along with him. Matter was brought to the notice of his brother, Vijay Pal and mother Khazani Devi. Information was also given to Malha Ram, maternal uncle of Raghuvinder. Malha Ram was sent to the village of the accused to make them understand and on return Malha Ram advised them to sent Anita to her matrimonial home if somebody comes from there to take her. After a gap of 3-4 days, Bijender, brother of Harinder came. Anita was sent along with Bijender. Thereafter, Raghuvinder went twice to the house of Anita after a gap of 15 days to enquire about her well-being. Anita on both the occasions Crl. Appeal No.272-SB of 1995 15 reported that accused are harassing her to bring cash and scooter. About 9-10 months prior to the date of occurrence, Anita again came to her parental house and stated that she may be given some cash to settle down in the in-laws house. An amount of Rs.25,000/- was arranged and was handed over to Anita. Anita was sent to her in- laws house. Raghuvinder Singh had again visited the house of the accused about one or two months prior to her death. Anita reported that accused are still harassing her. Accused told him that Anita will be deserted by them, if the demand of a scooter is not fulfilled. Anita was again brought to her parental home by her brother. After 2/3 days, Bijender and Daryao Singh, father of Harinder came to take Anita and assured them that in future Anita will not be harassed and will be kept properly. On the request of Bijender and Daryao Singh, Anita was sent with them. After 15 days, again he had gone to the house of Anita. At that time, Anita was weeping. She told her brother to give a scooter to her in-laws, otherwise her life is in danger.
Story put forward by the complainant was supported by Malha Ram. As per story, once Anita was sent with Bijender. Again, she was sent with Bijender and Daryao Singh. But, in defence, neither Bijender nor Daryao Singh appeared to state that they had not gone to bring back Anita in the aforementioned occasions and had not assured the complainant that Anita is to be kept properly. No suggestion to the witnesses that Anita was depressed because she failed to produce a child. If, Anita was under depression on account of failure to produce a child, then, appellants-accused were under duty to consult a lady doctor or any expert. For the first time, Crl. Appeal No.272-SB of 1995 16 appellants-accused when examined under Section 313 Cr.P.C, then stated that Anita was depressed because she failed to produce a child. As discussed earlier, if submission of the appellants-accused was correct one, then why Anita was not taken to any lady doctor or expert. As per defence version, Anita was taken to DW-1, Dr. R.L Garg. Dr. Garg was a Psychiatrist. He was running a private clinic. As per story, for the first time, Anita came to the clinic on 29.9.1992. Ex.DD is the treatment record. On cross-examination, Doctor admitted that there is no thumb impression or signature of the patient. No identification mark of the patient. Without any signature/thumb impression/identification mark, record like Ex. DD could easily be got prepared from a private clinic by a police official. That is why accused party without informing the complainant-party managed to get the statement of Daryao Singh recorded on 17.2.1993. ASI, Ram Chander appeared as PW-11. ASI, Ram Chander in examination-in-chief did not state a word that while on patrol duty, he was present near police post, Salana. Darayo Singh met him and then he had recorded the statement of Darayo Singh. In examination-in-chief, ASI, Ram Chander did not state a word that after recording the statement of Daryao Singh, endorsement was made and the same was sent to the police station. But later on, DDR Ex.DA/1 was recorded. On cross-examination, ASI, Ram Chander stated that on 17.2.1993, Daryao Singh made a statement before him under Section 174 Cr.P.C. ASI, Ram Chander further stated that statement Ex.DB was recorded in Village Salana. Actually, he had gone to Village Salana as per the statement of Daryao Singh. Crl. Appeal No.272-SB of 1995 17 Whereas, Head Constable, Rajbir Singh, PW-4 was the witness of recovery of rope and chappals. No suggestion by the defence counsel that on the intervening night of 17-18/2/1993, intimation was received regarding the death of Anita. On 18.2.1993, at about 8:00- 9:00 A.M, he along with Vazir Singh Constable had reached the place of occurrence. Daryao Singh was also with them. As per PW- 4, police party came to know about the incident from Daryao Singh on the intervening night of 17-18/2/1993. If Daryao Singh came to know about the unnatural death of Anita at 3:00 P.M, then why intimation to the police at 11:40 P.M on 17.2.1993. In fact, statement of Daryao Singh was recorded by the police to save the appellants- accused because one of the accused, namely, Harinder is the employee of the Police Department. That is why Daryao Singh in support of his version, did not appear in defence nor produced Davinder. Admittedly, no complaint to any authority. No letter was written by the deceased. But, if no letter by the deceased or no report to the police, then nothing to presume that everything was all right. Marriage was solemnized in June 1990. When a girl is harassed for want of dowry than to save the marriage, sometimes, matter is not brought to the notice of the parents or police. Parents also avoid to approach the police or Panchayat to save the reputation of the family and the marriage. Deceased was a young girl. If she was happy while staying at her in-laws house, then, there was no idea to commit suicide. If deceased was mentally upset on account of the failure to produce a child then, appellants-accused were suppoed to contact a lady doctor or some other expert doctor. There Crl. Appeal No.272-SB of 1995 18 was no idea to approach Psychiatrist. In Raja Lal Singh vs. State of Jharkhand, 2007 (2) RCR (Criminal) 1017, Dowry death- Harassment to bride soon before death - Words ``Soon before her death'' do not necessarily mean immediately before her death - this phrase is an elastic expression and can refer to a period either immediately before death of the deceased or within a few days or few weeks before death - In other words, there should be a perceptible nexus between the death of the deceased and the dowry related harassment or cruelty inflicted on her. In Naresh Kumar and another vs. State of Haryana 2007 (2) RCR (Criminal) 661, it was held that-Cruelty soon before death - Meaning of words ``soon before death'' - The word ``soon'' cannot be interpreted to mean that cruelty or harassment should be just before death - Demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time, under the circumstances be treated as having become stale enough.
In Baldev Kaur and another vs. Stte of Punjab, 2007 (2) RCR (Criminal), 665, it was held as under:
Dowry death within 6 months of marriage - Expression ``soon before the death'' would imply that the interval should not be too long between time of making the demand and the death - It contemplates reasonable time which has to be understood and determined under the peculiar circumstances of each case - In other words, demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time. Under the circumstances, be treated as having become stale Crl. Appeal No.272-SB of 1995 19 enough.
No dispute about the law laid down in the above cited authorities. But the facts of the present case differs from the facts of the above cited authorities. Firstly, in the month of December, deceased was not allowed to enter the house. She was made to remain on the roof of the house without clothes. Matter was brought to the notice of the complainant. Appellants-accused were made to understand by Malha Ram. Appellants-accused assured the complainant that in future the girl is not to be harassed. On the request of Bijender and Daryao Singh, deceased was sent to her in- laws house. Again, there was a demand of scooter and cash. An amount of Rs.25,000/- was arranged. But the appellants-accused were not satisfied with the payment. About one/two months prior to the present occurrence, deceased was brought back by the complainant as she was being harassed for want of dowry. Death was at the in-laws house. Then, appellants-accused were to explain why deceased committed suicide when she was not under depression. Qua depression, medical record was created. No allegation of the appellants-accused that the matter was brought to the notice of the complainant-party that the deceased is mentally upset because she failed to produce a child. No suggestion to any witness regarding mental condition of the deceased i.e Intimation was given from time to time to the complainant-party. In Vijay Kumar and others vs. State of Punjab, 1996(1) RCR 69 , bride committing suicide within seven years of her marriage. Demand of dowry made two years before suicide. Held that cannot be said that Crl. Appeal No.272-SB of 1995 20 demand was soon before death. No offence under Section 304-B made out. In Sham Lal vs. State of Haryana, AIR 1997 Supreme Court, 1873, it was held as under:
Dowry death - Presumption- Evidence by prosecution of only fact that there was dispute between parties regarding dowry and that wife was sent back to her parent's home and was again taken back to nuptial home after `Panchayat' which was held to resolve dispute - Such events happening ten to fifteen days prior to occurrence - No evidence, however, that she was treated with cruelty or harassed with demand for dowry during period between her taking back to home and her tragic end - Presumption for dowry death cannot be raised - Accused cannot be convicted under Section 304-B - However, basing on evidence of father of deceased and her dying declaration, accused convicted under Section 498-A. But the above cited authorities cited by the defence counsel for the appellants-accused are not helpful to the appellants- accused because as per statement of PW-9 and PW-8, deceased was being harassed for want of dowry. That is why no intimation was given to the complainant-party. After death, complainant-party came to know about the unnatural death from PW-6, Balram. After cremation, there was a Panchayat. Appellants-accused tried to effect compromise. When no compromise could be materialised, then matter was brought to the notice of the police. If the appellants- accused were not at default then why a Panchayat. Why the complainant-party was being pressurized to effect compromise. Deceased was expected to commit suicide if she was under Crl. Appeal No.272-SB of 1995 21 depression that she cannot produce a child. But in the present case, marriage was in the month of June 1990 and unnatural death in the month of February 1993. Expert lady doctor was not consulted. Investigating Officer did not state a word that after information from Darayo Singh, party had gone to the spot, room was found bolted from inside. Door was broken. Then, body was found hanging from the roof.
Last submission of the defence counsel was that occurrence is dated 17.2.1993 and if the appellant-accused were at default then, why they were not arrested immediately. Arrest of the appellant-accused on 23.2.2008 shows that story is unnatural one. Secondly, Balwan and Dharmo, appellants-accused were not the beneficiary, if there was demand of cash and scooter. At the most Harinder can be liable for the offence punishable under Section 306 IPC. But submission of the learned defence counsel for the appellants-accused carries little weight. Admittedly, occurrence is dated 17.2.1993. Complainant-party came to know about the occurrence on the intervening night of 17-18/2/1993. On the next date i.e 18.2.1993 at about 8:00/9:00 A.M, complainant-party had gone to village Salana. Dead body of Anita had already been shifted to hospital. After post-mortem examination was conducted, dead body was brought back and in the evening, dead body was cremated. After cremation, complainant-party had gone to Village Sisana where elder son of Malha Ram was married. Panchayat was convened but no compromise could be materialised. One of the accused namely, Harinder was serving in the Police Department. It was for the police Crl. Appeal No.272-SB of 1995 22 to see that when the appellants-accused are to be arrested. If the appellants-accused remained present in the house after committing crime, and to favour the accused-party, arrest not made by the police because one of the accused was employee of the Police Department, then due to the fault of Investigating Officer, complainant-party is not to suffer. Arrest of the appellants-accused on 23.2.1993, nowhere shows that story is unnatural one. All the appellants-accused were residing jointly. All the family members are to be benefited, if payment and cash and scooter is given. If any member is not knowing to drive scooter then, it does not mean that he is not the beneficiary. No documentary proof that Harinder was residing separately from his parents and his brother, Balwan.
No other submission was put forward. In view of the all discussed above, there is no infirmity or illegality in the impugned judgment/order of the trial court and the same is upheld. Appeal without merit is dismissed.
Copy of the judgment be sent to CJM to issue non-
bailable warrants against the appellants-accused to undergo imprisonment as ordered by the trial Court.
11.8.2008 ( JORA SINGH ) ritu JUDGE