Punjab-Haryana High Court
Kaptan @ Hari Kishan And Ors. vs State Of Haryana on 1 July, 2005
Equivalent citations: I(2006)DMC71
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This judgment shall dispose of Criminal Appeal Nos. 259-SB and 572-SB of 1995 against the judgment of conviction and order of sentence dated 20.4.1995 and 22.4.1995, respectively, passed by Sessions Judge, Rohtak, in case FIR No. 145 dated 23.8.1992 P.S. Beri under Sections 498-A/304-B/201 IPC. Crl. Appeal No. 259-SB of 1995 has been filed by Kaptan @ Hari Kishan, Krishan and Chhotu, who have been convicted under Section 201, IPC and sentenced to undergo rigorous imprisonment for six months each and Crl. Appeal No. 572-SB of 1995 has been filed by Lilu @ Randhir (husband of the deceased), who has been convicted under Sections 498-A; 304-B and 201, IPC and sentenced to undergo rigorous imprisonment for seven years under Sections 498-A and 304-B, IPC and to pay a fine of Rs. 500 and to undergo rigorous imprisonment for six months under Section 201, IPC.
2. The brief facts of the case are that appellant Lilu @ Randhir was married to Saroj (deceased) in the year 1988 and his real brother Rohtas was married to her real sister Ram Ratti. It is the case of prosecution, which was launched on the statement of Smt. Chameli, mother of deceased Saroj and Ram Ratti, that both the brothers, Lilu @ Randhir and Rohtas, used to harass their respective wives for want of more dowry. An amount of Rs. 5,000 was given to appellant Lilu @ Randhir by the complainant after taking loan. Whenever, he used to come at Dadri at his in-laws house, he always demanded money from the complainant. On 13.8.1992, on the occasion of Raksha Bandan, appellant Lilu @ Randhir and deceased Saroj came to Dadri. Appellant Lilu @ Randhir demanded Rs. 10,000 from the complainant by saying that he has to open a Karyana shop. Thereupon, the complainant replied that Rs. 5,000 earlier paid to him, were not returned and she was not in a position to pay him Rs. 10,000. Thereafter, appellant Lilu @ Randhir went to his house leaving the deceased at the house of her mother. Subsequently, Hari Singh, uncle of deceased Saroj persuaded her to go to her in-laws house, upon which she went to her in-laws house. Thereafter, on 18.8.1992, appellant Kaptan, elder brother of accused Lilu @ Randhir, came to the house of the complainant and asked her that she was being called by Rohtas in village Paharipur. The complainant did not accompany him alone. Subsequently, she went to village Paharipur along with her relations, where she came to know from her daughter Ram Ratti that her another daughter Saroj was killed by the appellants and she was cremated. Thereafter, the complainant came back to her house at Dadri and four days after the occurrence, she lodged the FIR on 23.8.1992. The matter was investigated by SI Ashok Kumar, SHO, Police Station Beri. After completion of investigation, the challan was filed against the appellants.
3. After commitment of the case to the Court of Sessions, charges under Sections 498-A, 304-B and 204, IPC were framed against the appellants, to which they did not plead guilty and claimed trial.
4. Though the prosecution had cited 13 witnesses in the list of witnesses submitted by it, but it examined only six witnesses in support of the charges framed against the appellants. The prosecution also tendered in its evidence affidavits of HC Hari Parkash and Constable Kanwal Singh as Ex. PH and Ex. PJ and the report of Forensic Science Laboratory Ex. PL.
5. PW-1 Sunil Kumar Bhatnagar, Draftsman, proved the site plan of the place of occurrence as Ex. PA, which was prepared by him on the information given by Smt. Chameli, the complainant. PW-2 Smt. Chameli, mother of the deceased, is the complainant in this case, OW-3 Ram Ratti is the elder daughter of Smt. Chameli and sister of deceased Saroj and was married to Rohtas, brother of appellant Lilu @ Randhir. PW-4 Hari Singh is uncle of deceased Saroj. PW-5 Ram Kishan is Sarpanch of village Paharipur and PW-6 SI Ashok Kumar is the Investigating Officer of the case.
6. In their statements under Section 313, Cr.P.C. the appellants denied all the allegations and pleaded that they have been falsely implicated. It has been stated by them that deceased Saroj was never harassed and maltreated by them on account of any demand of dowry. After the marriage, she was not conceiving a child. For this reason, she used to come to her mother quite frequently to take medicine. Few days prior to her death, she had come to her mother and at that time, she was pregnant. Her mother gave her medicine for few days and she came back to her matrimonial home. On the intervening night of 17/18.8.1992, she died a natural death. On the morning of 18.8.1992, appellant Kaptan went to Dadri to inform Smt. Chemeli about the death, who thereafter along with other persons of the family came to village Paharipur and joined the cremation of her daughter. After that, she went back on the same day. Thereafter, she came with Panchayat after two days and demanded back all the dowry articles. When she was told that it was not the occasion and proper stage to make such type of demand, she became angry and thereafter, she lodged the instant FIR against them. The appellants did not examine any witness in their defence.
7. On the basis of statements of PW-2 Smt. Chameli and PW-3 Ram Ratti, the Trial Court convicted and sentenced the appellants, as mentioned in the earlier part of this judgment.
8. Learned Counsel for the appellants submitted that no case under Sections 304-B, 498-A and 201, IPC has been made out against the appellants. The statements of PW-2 Smt. Chameli and PW-3 Ram Ratti are not sufficient to convict appellant Lilu @ Randhir under Sections 304-B and 498-A, IPC, as two basic ingredients of dowry death under Section 304-B, IPC i.e. (i) the death of deceased Saroj occurred otherwise than under normal circumstances and (ii) the victim was subjected to cruelty and harassment by her husband or any of his relatives in connection with demand of dowry have not been established. Regarding the other appellants, who have been convicted under Section 201, IPC, learned Counsel submitted that the evidence led by the prosecution does not allege any thing against them, which may constitute an offence under Section 201, IPC, therefore, conviction of the appellants for this offence is totally without any evidence against them. Primarily on the aforesaid points, learned Counsel for the appellants argued the appeals and referred to the various parts of the statements of witnesses produced by the prosecution. Learned Counsel for the State also addressed the arguments on those points.
9. I have heard the arguments of learned Counsel for both the parties and have perused the record of the case.
10. In this case, the complainant and the appellants were poor persons belonging to Scheduled Caste community. They were doing the work of labour. Undisputedly, the marriage of the deceased was performed four years prior to the date of occurrence, which took place on the intervening night of 17/18.8.1992. In this case, no post-mortem examination of the dead body of deceased Saroj was conducted. Though the ashes and pieces of bones were collected from the spot and were sent to the office of the Chemical Examiner, but the report of Forensic Science Laboratory, Ex. PL deals not disclose the cause of death of the deceased. In the absence of the expert opinion about the cause of death, only oral evidence is left with the prosecution to prove that the deceased died due to burns or bodily injury or otherwise than under a normal circumstance.
11. To prove the commission of the offence under Section 304-B, IPC and to raise the presumption for commission of such offence under Section 113-B of the Indian Evidence Act, the prosecution is required to establish the following essential ingredients:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
12. The prosecution has to rule out the possibility of natural or accidental death so as to being it within the purview of the death occurring otherwise than in normal circumstances, It is also required to prove that soon before her death, the victim was subjected to cruelty or harassment on account of demand of dowry. In the present case, in my opinion, both the ingredients are missing for want of evidence.
13. As stated earlier, there was no post-mortem examination on the dead body of the deceased. However, the ashes and pieces of bones were collected from the pyre of the deceased which were sent to the office of Chemical Examiner but there is no expert opinion, from which it can be inferred that death of Saroj took place under abnormal circumstances. The oral statements of Smt. Chameli (PW-2), Ram Ratti (PW-3) and SI Ashok Kumar (PW-6) do not prove that death of deceased had taken place due to burns or bodily injury or otherwise than under normal circumstances.
14. In her statement as PW-2 Smt. Chameli has stated that when she reached village Paharipur on 18.8.1992, she was told by Rohtas and Randhir, her sons-in-law, that Saroj had died on account of pain in the abdomen and thereafter she came back to her village, but in the FIR, she has stated that when she reached village Paharipur on 18.8.1992, her daughter Ram Ratti stated that Saroj had been killed by the appellants and thereafter she was cremated. She has also admitted that her daughter Saroj was taking medicine for getting an issue. However, she has denied the suggestion that Saroj died a natural death. This witness does not state any thing about the cause of death of the deceased as to whether she died due to burns or bodily injury or otherwise than under a normal circumstance.
15. PW-3 Ram Ratti, sister of deceased, who was married to Rohtas, elder brother of appellant Lilu @ Randhir, also did not disclose as to whether the deceased died a natural death or under abnormal circumstances. In her statement, she has stated that when she returned back to the house after taking grass, she saw that Saroj was lying dead. She was killed. All the three brothers were present, when she came back to the house. She specifically denied a suggestion put by the prosecution (as this witness was cross-examined by the Public Prosecutor after being declared as hostile) that on 17.8.1992, when she returned from the fields after taking the grass, she found the door of the house of Saroj closed and on opening the same, she saw the dead body of the deceased hanging by a ladder. She also denied the suggestion that in her presence people of the Mohalla along with Kaptan removed the dead body from the ladder, which was hanging.
PW-6 SI Ashok Kumar, the Investigating Officer of the case, did not state any thing about the cause of death of the deceased, whether she died in normal or abnormal circumstance. He was not able to collect any evidence regarding the cause of death of the deceased.
16. In the statement under Section 313, Cr.P.C. it was put to appellant Lilu @ Randhir that the deceased was killed by him, to which he replied that it is incorrect. Actually, the deceased died due to natural death because of ailment and her parents were duly informed. In the site plan, Ex. PA, which was prepared by PW-1 Sunil Kumar Bhatnagar, Draftsman, on the information given by Smt. Chameli, the complainant, mark A has been shown the staircase of the Kotha where the deceased is alleged to have committed suicide by hanging. But none of the prosecution witnesses has stated that the deceased died due to hanging nor it is case of the prosecution, which was put to the appellants in their statements recorded under Section 313, Cr.P.C. The Trial Court in para 21 of its judgment has observed that Lilu @ Randhir might have given some kick blows in the abdomen or on private part of Saroj when she was pregnant and for this reason she might have died. This was not the case of the prosecution at all. These observations of the Trial Court are beyond the evidence of the prosecution. In these circumstances, in my opinion, there is no evidence on the record to establish the first ingredient of Section 304-B, IPC that death of the victim took place due to burns or bodily injury or otherwise than under a normal circumstance.
17. The second point for determination in this case is whether the prosecution has proved that soon before her death, the deceased was subjected to cruelty or harassment by appellant Lilu @ Randhir in connection with demand of dowry. The Trial Court has held that the prosecution has established this ingredient of Section 304-B, IPC by examining PW-2 Smt. Chameli and PW-3 Ram Ratti. Now, the question for determination is whether from their statements, this ingredient of the offence of dowry death has been proved,
18. PW-2 Smt. Chameli has stated that appellant Lilu @ Randhir used to demand money from her daughter. In the year 1991, he came to her house and demanded money for opening a Karyana shop. A sum of Rs. 5,000 was given to him after taking the same from her relative. On 13.8.1992, four days before the occurrence, on the eve of Raksha Bandhan, appellant Lilu @ Randhir along with deceased Saroj came to her house. He asked Saroj to demand a sum of Rs. 10,000 from her. PW-2 further stated that she refused to give the amount to appellant Lilu @ Randhir. Thereafter, he went to his village after leaving Saroj at her residence. Subsequently, on 15.8.1992, deceased Saroj was persuaded by her uncle Hari Singh to go to her matrimonial home. Thereupon, she agreed and he left her at the Bus Stand from where she went to her in-laws house.
19. PW-3 Ram Ratti stated that when her sister Saroj came to her matrimonial home on 15.8.1992, she enquired from her as to why she did not come with Randhir from Dadri. She replied that she had come back. She further stated that Randhir enquired from Saroj why she had not brought Rs. 10,000 from her mother. Thereupon, she replied that her mother was not in a position to give the money. Then, Saroj was beaten in the evening by accused Randhir. She further stated that there was no demand of any amount by Randhir from Saroj and her mother prior to that date. She had not heard any thing how Saroj was treated by her husband and Kaptan prior to that day and nothing happened in her presence. At that stage, this witness was declared hostile and was permitted to be cross-examined by the Public Prosecutor. In the cross- examination, she admitted that on 13.8.1992, accused Lilu @ Randhir along with Saroj went to Dadri to demand Rs. 10,000 from her mother and he came back on 14.8.1992 from Dadri as his demand was not met by her mother. But she did not say any thing that on what account the said demand was made; and on that account her sister was harassed. Rather, she has denied the suggestion that accused Randhir, Kaptan or any person from their family even harassed his sister Saroj or made any demand.
20. PW-4 Hari Singh, who is real uncle of the deceased and who had persuaded the deceased to go to her matrimonial home on 15.8.1992 and had left her at the Bus Stand, did not support the prosecution version regarding the demand of dowry or harassment on that account by the accused. Though this witness was declared hostile and was permitted to be cross-examined by the Public Prosecutor, but nothing incriminating could be extracted from his cross-examination.
21. In addition to the aforesaid factual position, the statements of PW-2 and PW-3 are not trustworthy. No reason has been disclosed by PW-2 why she did not lodge the report on 18.8.1992, when she came to know about the alleged offence on 18.8.1992 itself from her daughter Ram Ratti and why the FIR was lodged after four days. In her statement as PW-2, she has stated that the FIR was recorded in the Police Station when she went there along with other residents of the village. She has stated that she did not know who scribed the complaint Ex. PD, on the basis of which the FIR Ex. PB/2 was registered. Only her thumb impression was taken on the said complaint. She further stated that the complaint was recorded by the police official and she was asked only to affix her thumb impression on the same. She further stated that thereafter, she did not visit village Paharipur, whereas from the recorded it appears that the site plan Ex. PA was prepared by PW-1 on 25.9.1992 and he has stated that it was prepared by him in presence of Smt. Chameli (PW-2). Further, it is the case of prosecution as has been admitted by PW-2 Smt. Chameli that she was informed on 18.8.1992 by Kaptan that she was wanted in village Paharipur. In fact, Smt. Chameli was told about the death of Smt. Saroj. She intentionally gave a colourful version by twisting the facts to the effect that she was wanted in village Paharipur, so that she could say that she was not aware about cause of death and it could be presumed that the death was not natural. Further, the testimony of PW-2 is not supported by any other independent witness. None of the brothers of the husband of the complainant, who accompanied her to village Paharipur, has been examined. Only Hari Singh has been examined as PW-4, who did not support the prosecution version. Keeping in view the fact that the complainant as well as the accused were poor persons and were doing the work of labour, the fact of demand of Rs. 10,000 as dowry after four years of the marriage does not inspire any confidence, particularly when Smt. Chameli has stated that she had given Rs. 5,000 to appellant Lilu @ Randhir after borrowing from her relative, who has not been examined by the prosecution to prove this fact. Even otherwise, it has no where been stated by PW-2 that the amount of Rs. 10,000 was being demanded by the appellant on account of dowry. From her statement, it appears that on the earlier occasion, she had paid Rs. 5,000 to the appellant on credit. There is no evidence on record that on 18.8.1992, the appellant demanded the alleged amount of Rs. 10,000 on account of dowry. In these circumstances, in my opinion, the evidence led by the prosecution does not establish the fact that soon before her death, the victim was subjected to cruelty or harassment by her husband or his relative in connection with demand of dowry.
22. As far as the offence under Section 201, IPC is concerned, the witnesses examined by the prosecution do not utter even a word against the appellants that they have destroyed the evidence of the commission of offence with the intention of screening them from punishment. In the judgment of the learned Trial Court, there is no discussion on this point.
23. In view of the aforesaid discussion and the findings recorded, both the appeals are allowed; the impugned judgments are set aside and the appellants are acquitted of the charges framed against them.