Punjab-Haryana High Court
Parkash Chand vs State Of Haryana on 3 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1177-SB of 2008
Date of decision: 3rd February, 2010
Parkash Chand
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Rajender Singh Malik, Advocate for the appellant.
Mr. Sunil Nehra, Senior Dy. Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Present appeal has been preferred by Parkash Chand son of Nanak Ram. The appellant has assailed the judgment dated 25th March, 2008 passed by Sessions Judge, Bhiwani, who found the appellant guilty of offence under Section 304-B and 498-A IPC. The appellant has also prayed for setting aside the order of sentence passed on 27th March, 2008, whereby the appellant was sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.20,000/- under Section 304-B IPC, in default of payment of fine to further undergo rigorous imprisonment for two years. The appellant was further sentenced under Section 498-A IPC to undergo rigorous imprisonment for two years and to pay fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. Both the sentences were ordered to run concurrent. Criminal Appeal No.1177-SB of 2008 2
The appellant, along with his mother, Suraj Kaur, was named as accused in case FIR No.58 dated 10.03.2006 registered at Police Station Sadar Charkhi Dadri under Section 304-B/34 IPC. The proceedings could not culminate against Suraj Kaur, as she died during the trial.
The marriage of Parkash Chand appellant was solemnized with Savitri daughter of Subhash Chand on 27th July, 1999. Savitri died in her matrimonial home on 9th March, 2006. Thus, the death had taken place within seven years of the marriage.
On 10th March, 2006, Subhash Chand father of the deceased Savitri appeared in the police post Adampur Dadri and made his statement Ex.P1. The complainant stated that he is engaged in the work of stitching and tailoring. He was blessed with three daughters and one son. His two elder daughters Roshni and Sita were married in village Barela. His son Vinod was also married. The youngest daughter Savitri was married in the month of July, 1999 at village Kalyana with Parkash Chand. At the time of marriage, complainant had given dowry according to his capacity. His daughter was aged 21/22 years. Savitri had got two sons. Immediately after the marriage, in-laws of Savitri started harassing her. The daughter of the complainant, Savitri complained a number of times that she is maltreated by her mother-in-law Suraj Kaur, husband Parkash Chand, and Ram Niwas and Rati Ram (elder brothers of her husband) and wives of the elder brothers, namely Munni and Krishna. They used to taunt her and demand dowry. After three years of the marriage, these accused made an attempt to kill Savitri by throttling. At that time, son of the complainant Vinod was present in the village Kalyana and he rescued Savitri from the accused. Two days later, the in-laws of Savitri started harassing her to the extent that the complainant was compelled to bring her to his village Mai Criminal Appeal No.1177-SB of 2008 3 Khurd. The complainant had filed an application before the Mahila Mandal. The Panchayat got a compromise effected by Mahila Mandal and on the asking of Panchayat, Savitri was sent to her matrimonial home. One week before, the complainant had come to meet his daughter, when she informed that she is not keeping good health and her in-laws are not providing medicines, rather they give taunts and say that she has come from family of paupers, therefore, they are not able to provide medical care. She further told that her husband Parkash, mother-in-law Suraj Kaur, Ram Niwas and Rati Ram elder brothers of her husband and their wives namely Munni and Krishna maltreat her and demand Rs.50,000/-. The complainant advised his daughter to continue in the matrimonial home and returned after giving Rs.1000/- to Parkash, however, he expressed his helplessness to give the remaining amount. On 9th March, 2006, the complainant was present at his house, when Surinder Singh, Ex-Sarpanch of village Kalyana came to his house and informed about the death of his daughter Savitri. The complainant accompanied by his wife Santosh, son Vinod and younger brother Daulat Ram, reached the matrimonial home of his daughter Savitri and saw that she was lying dead on the cot. There was a mark of rope on her neck. The complainant suspected that his daughter has been killed by all the accused due to their unsatisfying greed of dowry and she has been strangulated with a rope. The complainant came to police post to lodge the report.
The above said FIR was investigated. Except the present appellant and Suraj Kaur, all other accused were placed in column No.2. An application was filed under Section 319 Cr.P.C. The same was dismissed on 1st June, 2007. The appellant along with his mother Suraj Kaur, was charged on 11th July, 2000 by Sessions Judge, Bhiwani for Criminal Appeal No.1177-SB of 2008 4 offence under Section 304-B and 498-A read with section 34 IPC. The appellant pleaded not guilty and claimed trial.
Autopsy on the dead body of Savitri was conducted by Dr.Ishwar Singh, Medical Officer PW-2 on 10th March, 2006. The doctor found ligature mark on the neck and an abrasion on the right ankle joint. This witness stated that as per opinion of the Medical Board, the cause of death was asphyxia which was due to hanging and sufficient to cause death in ordinary course of nature. The ligature mark and injury were ante- mortem in nature. In cross examination, this witness stated that possibility of self hanging cannot be ruled out and it is a case of suicide.
Complainant Subhash Chand appeared as PW-1. He reiterated what was stated in the FIR. This witness was cross examined and it was suggested that the marriage was not performed on 21st July, 1999 but earlier thereto and a period of seven years had elapsed when the deceased committed suicide. The suggestion was denied. However, the witness admitted that he had produced no document to prove the date of marriage. However, this witness in cross examination admitted and stated as under:
"At his own stated that at that time my daughter was taken to 'Nar Har Pir' by us. A mentally retarded person is taken to 'Nar Har Pir' in district Jhunjhunu (Rajasthan). She was kept there for six months. Her mental condition improved. It is incorrect to suggest that my daughter was mentally ill and I suppressed this fact at the time of her marriage. It is also incorrect to suggest that due to that illness she committed suicide."
Santosh wife of the complainant appeared as PW-3 to corroborate the testimony of complainant. She was also cross examined regarding the date of marriage. She was confronted with her statement Criminal Appeal No.1177-SB of 2008 5 Ex.DA where date of marriage recorded was 6th March, 1999, but the witness clarified that she had told the police that the marriage of her daughter was performed in Ashadh in year 1999. The counsel for the appellant, during course of arguments, admitted that Ashadh falls in July. This witness further admitted as under:
"It is correct that one day before her death, my daughter had gone to village Amarpura in Rajasthan."
ASI Shamsher Singh PW-4 had conducted the investigation. He proved recovery of various articles from the spot, including rope Ex.P18. This witness deposed regarding various facets of the investigation. In the cross examination, this witness stated that the villagers might have told him that deceased was suffering from bad evils and she had gone to 'Nar Har Pir' and had only returned to the matrimonial house on the day of occurrence.
Daya Nand Pardhan PW-5 proved photographs Ex.P-22 to P- 29 and their negatives Ex.P-30 to P-37.
Constable Girish Kumar PW-6 had prepared scaled site plan Ex.P-38. SI Indivar PW-7 proved recording of the formal FIR Ex.P-39. Constable Bal Kishan PW-8 was summoned from the SSP office, Bhiwani. He stated that the record summoned was destroyed. Inspector Dhiraj Kumar PW-9 submitted report under Section 173 Cr.P.C.
Vinod brother of the decease Savitri appeared as PW-10. He also corroborated the testimony of his father Subhash Chand PW-1 and mother Santosh PW-3. In cross examination, this witness stated as under:
"I am unmarried. We go to 'Baba Narhari Peer' which is near Pilani and not at village Amarpur. People go to that place for treatment of so many ailments and not only mentally retardedness. My sister Savitri also went there. In our family, I was having ailment. My neck was bent towards back side. My Criminal Appeal No.1177-SB of 2008 6 hands were also crippled and my neck was also not functioning properly and after going to that place I have become hale and hearty. My sister or her in-laws were not having ailment of paralysis or polio. One day before her death, she went to village Amarpura and after coming back she was murdered. At Amarpura, there is one saint and gives treatment about the souls, bowls and other types of ailment.
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I do not know the type of ailment she was having and
the same must be to the knowledge of doctors. I never took her to any doctor. I do not know whether my parents took her to any doctor or not. Only they can tell."
Thereafter, prosecution closed its evidence. The accused was examined and his statement under Section 313 Cr.P.C. was recorded. All incriminating circumstances were put to him, but he denied the same and pleaded false implication. The accused, in his statement recorded under Section 313 Cr.P.C., gave following version:
"I am innocent. I was married with the deceased more than seven years prior to her death. My wife was mentally retarded. She used to go to Amarpura for treatment of her ailment. She went to Amarpura one day prior to her death. Bhana Ram uncle of the deceased met the deceased there and he told her that Vinod had again left the house without any information and he was missing. For that reason, the deceased was perturbed. My father-in-law had taken money from me on many occasions. I took loan from the bank and handed over that money to my father-in-law which he never paid. The bank was asking for return of money and due to this reason also, my wife was mentally perturbed. I never raised any demand of dowry and she was not subjected to cruelty in lieu of dowry."Criminal Appeal No.1177-SB of 2008 7
In defence, Surinder Singh, Ex-Sarpanch was examined as DW-1. This witness, according to the FIR, had gone to the house of the complainant to relay the information of death. This witness stated that the deceased Savitri was suffering from evil spirits and she was taken to 'Nar Har Pir' for treatment and she stayed there for about six months.
Sanjay Kumar DW-2 stated that he had constructed the house in the fields and had employed present appellant as labourer, and he was paid Rs.120/- per day as wage.
Naresh Kumar DW-3 stated that from the society for self financing, a loan of Rs.10,000/- was given to Parkash Chand present appellant on 8th September, 2000.
Thereafter, defence evidence was closed.
I have heard counsel for the parties. In the present case, complainant and accused belong to the down trodden/poor section of the society. They are illiterate. Father of the complainant Subhash Chand was engaged in stitching and embroidery work. Present appellant Parkash Chand was doing the work of labourer. As per Sanjay Kumar DW-2, he was having Rs.120/- as daily wage. In the FIR, it has been stated that soon before the occurrence when the father visited the deceased, she made a grievance that she is not keeping good health and she is not provided medical care, and the accused used to taunt her that she has come from the family of paupers. However, in cross examination, portion of which has been reproduced earlier, father of the deceased admitted that his daughter was taken to 'Nar Har Pir' by them and mentally retarded persons are taken to 'Nar Har Pir'. The deceased was kept there for six months. Her mental condition improved. Santosh PW-3, mother of the deceased also stated in the cross examination that deceased one day before death had Criminal Appeal No.1177-SB of 2008 8 gone to Amarpura in Rajasthan. Vinod PW-10, brother of deceased, said in cross examination that a saint in Amarpura give treatment about souls, bowls and other ailments. Immediately after the occurrence, the Investigating Officer has not denied that he was told by certain persons that deceased was suffering from bad evils and she was taken to 'Nar Har Pir'. The portion of the cross examination of Vinod PW-10, which has been reproduced earlier further states that he also used to go to Baba 'Nar Har Pir' for treatment of many ailments. His neck was bent towards back side. His hands were crippled and neck was not functioning properly. He further stated that at Amarpura, there is one saint, who gives treatment about the souls, bowls and other type of ailments. However, this witness further stated that according to his knowledge, deceased was not taken to any doctor. In his statement recorded under Section 313 Cr.P.C., the accused also took the same stand that the deceased was suffering from mental ailment and a day before her death she had returned from Amarpura. Surinder Singh Ex-Sarpanch DW-1 also stated that deceased used to go to 'Nar Har Pir' for treatment and used to stay there for about six months.
From the above evidence, it is apparent that both the complainant and the accused, being illiterate persons, believed that the deceased was suffering from some evil spirits and for her treatment, they were approaching some saint at Amarpura or 'Nar Har Pir'. The deceased had made a grievance, in the FIR, that she was not given medical treatment. The accused and the parents of the deceased in their wisdom thought that 'Nar Har Pir' or some Jadu Tona (witch craft) will provide the remedy and solace. Thus, to say that soon before her death, the deceased was subjected to cruelty on account of dowry, seems to be an exaggeration. This part of the evidence is to be ruled out of consideration. Criminal Appeal No.1177-SB of 2008 9 This Court cannot become oblivious of the fact that marriage was about 6 ½ years old and deceased was blessed with two children.
From the entire evidence, this Court has no hesitation to infer that real cause of dispute between the parties was the ailment of the deceased. The accused were comprehending deceased to be suffering from mental ailment. According to their information, deceased was mentally retarded. Therefore, this was the cause of discord. Nobody has been examined from the Mahila Mandal or from the Panchayat, which had earlier effected the compromise. It cannot be ruled out that the accused were having a grievance that a lady, who was not keeping good mental health, has been married with the appellant. It is on this account that the deceased was maltreated/harassed. The story of dowry has been introduced due to delay in lodging of the report. There is no evidence on the record to say that during the subsistence of marriage, which was more than six years old, the dispute had taken place due to dowry. Before the Court, only bald/oral assertions regarding demand of dowry are available. No independent witness has been examined. It is in this context that portion of the cross examination reproduced in the earlier part of the judgment cannot be ignored. But at the same time, this Court cannot shut its eyes to the fact that a wife, who was not keeping good health, was denied medical amenities and facilities. On that account, she was harassed and subjected to cruelty. Therefore, immediately after she returned from Amarpura, accused may have provoked her to commit suicide. The marriage was within seven years. Therefore, section 113-A of Indian Evidence Act is attracted. A married woman, within seven years of her marriage, has committed suicide. Presumption is to be drawn against the accused under Section 113-A of the Indian Evidence Act. Therefore, Criminal Appeal No.1177-SB of 2008 10 this Court holds appellant guilty of offence under Section 306 and 498-A IPC.
Having held the appellant guilty of offence under Section 306 IPC, this Court has to determine quantum of sentence. The occurrence, in the present case, had taken place on 9th March, 2006. Therefore, ends of justice will be fully met in case appellant is sentenced to undergo rigorous imprisonment for four years under Section 306 IPC. However, sentence awarded by the trial Court under Section 498-A IPC is maintained. Both sentences shall run concurrently.
With the modifications in the sentence and observations made above, present appeal is disposed of.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 3, 2010 rps