Punjab-Haryana High Court
Chaman Lal And Another vs The State Of Punjab on 12 March, 2010
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Crl.Appeal No.1238-SB of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Appeal No.1238-SB of 1999
Date of Decision:12.03.2010
Chaman Lal and another
.....Appellants
Versus
The State of Punjab
.....Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Argued by: Mr.H.S.Gill, Senior Advocate,
with Mr.R.K.Dhiman, Advocate,
for the appellants.
Mr.Ajaib Singh, Additional Advocate General, Punjab,
for the respondent-State.
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MEHINDER SINGH SULLAR, J.(Oral)
Challenge in this appeal is to the judgment of conviction and order of sentence dated 09.12.1999, whereby the trial Judge, while acquitting accused Rattan Chand son of Munshi Ram(father-in-law), convicted and sentenced his son appellants-convicts Chaman Lal(husband) and wife Bishambri Devi(mother-in-law), to undergo rigorous imprisonment for a period of seven years, to pay a fine of Rs.500/- each and in default of payment of fine, to undergo further rigorous imprisonment for a period of three months, for the commission of offence punishable under Section 304-B IPC.
2. Shorn off unnecessary details, the facts and evidence unfolded during the trial and emanating from the record, are that the marriage of Ramesh Rani was solemnized with appellant-Chaman Lal four years prior to the present occurrence, according to Hindu rites and ceremonies. A son was born out of the said wedlock. On 02.12.1997 at about 3.00 P.M., Ramesh Crl.Appeal No.1238-SB of 1999 2 Rani consumed some poisonous substance. She was removed to hospital by her husband appellant-Chaman Lal, where she died on 03.12.1997. Thus, she committed suicide.
3. The prosecution claimed that after about six months of the marriage, appellant-Chaman Lal, husband of the deceased, and his parents started taunting her for having brought insufficient dowry. Even Chaman Lal went to the house of her brother complainant-Balraj Chadha(PW3) and asked him to give Rs.10,000/- for purchasing a scooter. PW3 demonstrated his inability to pay the said amount on the ground that he had already spent a huge amount, according to his capacity, on the marriage of his sister and he was not in a position to pay any more money. Thereafter, appellant- Chaman Lal and his parents turned out his sister from her matrimonial house after giving severe beatings. Then, a case was instituted against her by appellant-Chaman Lal in the court at Dasuya. As per compromise arrived at between the parties in the court, Ramesh Rani went to her matrimonial home, one and a half months, prior to the present occurrence.
4. Levelling a variety of allegations in all according to the prosecution, that on 02.12.1997, Ramesh Rani consumed some poisonous substance and committed suicide and her death occurred, otherwise than under normal circumstances, within seven years of her marriage and she was subjected to cruelty and harassment by her husband and his parents. In the wake of information, PW3 Balraj Chadha, brother of the deceased, reported the matter to the police and made his statement(Ex.PK) before PW6-ASI Rajinder Singh, which formed the basis of FIR(Ex.PK/2). On the strength of aforesaid allegations, the case was registered against the appellants and his father Rattan Chand vide FIR No.58 dated 03.12.1997, on accusation of having committed the offence punishable under Section 304-B IPC by the police of Police Station Talwara, District Hoshiarpur, in the manner stated here-in-above.
5. After completion of the investigation, final police report/challan was submitted against the appellants and their co-accused under Section 173 Cr.P.C. to face trial for the commission of aforesaid offence. Since, the case was triable by the court of sessions, so the Chief Judicial Magistrate Ist Class Dasuya, committed the same for trial to the court of sessions, vide his commitment order dated 16.03.1998. They Crl.Appeal No.1238-SB of 1999 3 appeared before the court of sessions in pursuance of commitment of the case.
6. Having completed all the codal formalities, the appellants and their co-accused Rattan Chand ,were charge-sheeted by the trial Judge, for the commission of offence punishable under Section 304-B IPC, vide order dated 30.03.1998. As, they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.
7. The prosecution in order to substantiate the charges framed against the appellants, examined PW1-Dr.Madan Singh Rathore from BBMB Hospital, Talwara, who has stated on oath that on 02.12.1997, Ramesh Rani(deceased) was brought by Chaman Lal and was admitted to the hospital. It was disclosed by Chaman Lal that she had consumed sulphas tablets, which is a poison. PW1 sent a ruqa(Ex.PA) to the SHO, Police Station, Talwara giving information regarding her admission. She was treated vide Bed-Head Ticket, Ex.PB. On the police request(Ex.PC), PW1 declared her unfit to make the statement vide his opinion(Ex.PC/1). She expired at 1.15 A.M. on 03.12.1997. After her death, PW1 again sent intimation to the police vide ruqa(Ex.PD) in this respect.
8. Sequelly, PW2-Dr.R.K.Gautam, on police request(Ex.PC), conducted the post-mortem examination of deceased Ramesh Rani on 04.12.1997 vide post-mortem report(Ex.PE). The dead body was identified by Roshan Lal, brother and Jarnail Singh, uncle of the deceased. PW2 found rigor mortis and post-mortem stainings on the dead body. Liver, spleen, kidney, right and left lungs were found to be congested and rest of the organs were normal. He made his endorsement(Ex.PG/1) on the police request and sent viscera to the office of Chemical Examiner vide forwarding letter(Ex.PH) with seal impression Ex.PH/1. According to PW2, the time elapsed between injury and death was within 12 hours and between death and post-mortem within 24 hours. The cause of death was subjected to the receipt of report of Chemical Examiner. He handed over all the articles and relevant papers to the police vide his forwarding letter(Ex.PH/2) and inquest report(Ex.PJ). After seeing the report of Chemical Examiner, Ex.PF, PW2 opined that the cause of death in this case was poisoning caused by aluminium phosphide, which is a pesticide and sufficient to cause death in the ordinary course of nature.
Crl.Appeal No.1238-SB of 1999 49. The next to mention is the testimony of PW3-complainant Balraj Chadha, brother of the deceased. In order to avoid repetition, suffice it to say that he attempted to corroborate the contents of his earlier statement (Ex.PK), which formed the basis of FIR(Ex.PK/2) on all vital counts and maintained that his sister Ramesh Rani died unnatural death on account of demand of dowry, mal-treatment and harassment at the hands of the accused.
10. Likewise, PW4-Baby wife of Girdhari Lal, sister of the deceased, has inter alia, stated that six months after the marriage of the deceased, the accused started harassing her due to bringing less dowry. She was turned out from her matrimonial home and started living with her parents. She gave birth to a son. Accused Chaman Lal filed a case against her at Dasuya, where she was awarded maintenance. But Chaman Lal was not ready to pay the maintenance allowance and agreed to take her to his house. After two months, he again started harassing the deceased. According to PW4, on 02.12.1997, she went to the matrimonial home of the deceased, where she told her that her in-laws were harassing and mal- treating for bringing less dowry. Then, she went to the house and told the entire position to their parents and brother Balraj Chadha, who told her that he(PW3) will go to matrimonial home of the deceased on the next day to enquire into the matter along with Sarpanch/Pardhan of the village. On 03.12.1997, a message was received that her sister Ramesh Rani had died in BBMB Hospital. She along with other family members went to the hospital, where the dead body of her sister was lying. The police recorded her statement.
11. The evidence of PW5-Roshan Lal son of Raja Ram is only to the effect that on 03.12.1997, he accompanied Balraj Chadha and his family members to BBMB Hospital, Talwara. The inquest report(Ex.PJ) was prepared by the police in his presence and he signed the same. He identified the dead body. He knew that the accused were harassing and mal-treating the deceased for bringing more dowry.
12. PW6-ASI Rajinder Singh is the main Investigating Officer, who has deposed that on 02.12.1997, he received ruqa(Ex.PA) from the hospital about the admission of Ramesh Rani as a case of poisoning. Head Constable Jagat Singh went to the hospital for recording the statement of Crl.Appeal No.1238-SB of 1999 5 Ramesh Rani. The doctor had declared her unfit to make the statement. PW6 maintained that on 03.12.1997 in the wake of ruqa(Ex.PD) about her death, he went to the hospital and recorded the statement(Ex.PK) of complainant-Balraj Chadha. It was read over to him and he signed the same in token of its correctness. PW6 made his endorsement(Ex.PK/1) on it and sent the same to the police station for registration of the case, on the basis of which FIR(Ex.PK/2) was recorded by Jagat Singh, AMHC, whose signatures he identified. He prepared the inquest report(Ex.PJ) in the presence of Roshan Lal, Jarnail Singh, Constable Jagga Ram, PHG Ashwani Kumar and recorded their statements. The dead body was sent for post- mortem examination vide his request(Ex.PG). Thereafter, he inspected and prepared the site plan(Ex.PL) of the place of occurrence with its correct marginal notes. The report of chemical examination, Ex.PF was received.
13. PW7-Kuldip Rai Sharma, Draftsman, only prepared the scaled site plan(Ex.PM) of the place of occurrence on 27.02.1998 at the instance of PW6. PW8-Constable Paramjit Singh is a formal witness, who has only tendered into evidence his affidavit, Ex.PN.
14. The last to mention is the testimony of PW9-Constable Jagga Ram, who has stated that on 03.12.1997, PW6 handed over the dead body of Ramesh Rani to him for post-mortem examination. But on that day, on account of late hours, post-mortem was not conducted. He remained with the dead body in the hospital. On the next day, i.e., 04.12.1997, post- mortem of the dead body was performed and the doctor handed over to him post-mortem report, viscera, sealed envelope, other articles and the relevant papers. He was entrusted with sealed envelope and viscera along with road certificate on 05.12.1997 for taking the same to the office of Chemical Examiner, Patiala. He took these items and deposited with the Chemical Examiner on 05.12.1997 intact. No one tempered with these articles. His statement was recorded by the Investigating Officer.
15. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstances appearing in the evidence against them, as contemplated under Section 313 Cr.P.C. They denied the prosecution evidence in its totality and pleaded false implication. Appellant-Chaman Lal has set-up a specific plea of defence in the following Crl.Appeal No.1238-SB of 1999 6 manner:-
"I am innocent and has been falsely implicated by the complainant party in this case with ulterior motive. I loved my wife and did everything to make her happy but she was not happy on her marriage with me and regarded me as below her status. Since, I earned my livelihood by working on daily wages. When she wanted regular salaried person she used to go to her parents on one pretext or the other and I and my parents begged for her return. On the last time, when she left and did not return even on the insistence of her parents, I filed an application for restitution of conjugal rights at Dasuya which was compromised and the deceased was sent by her parents with me and my parents about a fortnight before the occurrence. At that time, her parents even reprimanded her and clearly told her that she was not welcome to their house. The allegations regarding dowry and demand of scooter etc. harassment and cruelty are all false and fabricated. On the day when she took poison, neither I nor my parents were present in the house. My father had gone to see a relation at Thein Dam. When I learnt I and my mother immediately removed her to civil hospital at Talwara and gave her the best possible treatment but she could not be saved. I also informed her parents promptly but they intentionally reached late after her death in order to avoid expenses. Her parents even did not care for her dead body and cremation was done by me and my parents at my vill.Palli".
16. The appellants in order to substantiate their defence plea examined DW1-Raj Mal, Advocate, Dasuya, who has stated that he filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act at the instance of Chaman Lal accused against the deceased. The petition was defended by the respondent and ultimately, on 15.09.1997, a compromise was got effected between the parties and the respondent was Crl.Appeal No.1238-SB of 1999 7 sent to the house of the petitioner on trial basis. The case was adjourned to 04.10.1997. On the said date, both the parties came to the court and stated that they have been living amicably. Then the petition filed under Section 9 of the Hindu Marriage Act was dismissed as withdrawn. The compromise was got effected with the intervention of the parents of both the parties. The respondent seemed to be more interested to reside separately with her parents and there was no dispute regarding dowry in that case.
17. Similarly, the evidence of DW2-Jagdish Ram son of Mangat Ram is mainly to the effect that he had been visiting the house of the accused but did not hear anything regarding demand of dowry. He attended the marriage of Chaman Lal along with 15/20 persons of a marriage party. It was a simple marriage. He had not seen if any ornaments were given to the accused by the girl side. DW3-Tek Chand, Record Keeper has stated that record of Case No.26 of 1996 titled as Chaman Lal Vs. Ramesh Rani under Section 9 of Hindu Marriage Act decided by the court of Sh.A.K.Mehta, Additional Civil Judge(Senior Division), Dasuya on 04.10.1997 relating to village Palli, Tehsil Mukerian, has been burnt in a fire, which took place in the month of June 1998, as such record cannot be produced.
18. Having analysed the evidence on record, the trial Judge, after extended the benefit of doubt, acquitted Rattan Chand-accused, but the appellants were convicted and sentenced in the manner depicted here-in- above.
19. The appellants did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter.
20. Assailing the impugned judgment, at the very outset, learned counsel for the appellants has contended with some amount of vehemence that the allegations against appellant-Bishambri Devi and her husband Rattan Chand were vague and general in nature. There was absolutely no evidence against them in this regard. The argument is that although, the trial court has acquitted Rattan Chand(father-in-law), but fell in legal error in convicting appellant-Bishambri Devi(mother-in-law) on the same set of evidence.
21. Hailing the impugned judgment, on the contrary, learned State Crl.Appeal No.1238-SB of 1999 8 Counsel argued that no doubt Rattan Chand, father-in-law of the deceased has already been acquitted, but still he urged that the trial court had rightly convicted the appellants, on the basis of evidence on record and no interference is warranted in this connection.
22. Having regard to the rival contentions of learned counsel for the parties, having gone through the evidence on record and after bestowal of thoughts over the entire matter, to me, pointed argument of learned counsel for the appellants, has considerable force. The perusal of evidence on record, as discussed here-in-above, would reveal that there is absolutely no cogent evidence on record against appellant-Bishambri Devi as well and her case is squarely identical to the case of her husband, acquitted accused- Rattan Chand. Complainant-PW3 Balraj Chadha set the police machinery into motion in this case and made his initial statement(Ex.PK), which formed the basis of FIR(Ex.PK/2). Not only that there are very general and vague allegations in it against the parents-in-laws of the deceased that they used to taunt and harass her for bringing insufficient dowry articles, even he, while appearing as PW3, again very vaguely stated that accused started quarreling with his sister on bringing of less dowry. No specific part or participation is attributed to parents-in-laws of the deceased. However, he has categorically maintained that accused Chaman Lal came to their house along with Rani, demanded Rs.10,000/- for purchasing the scooter and when the money was not given, then he(Chaman Lal) started giving beatings to his sister along with other accused. It was admitted by PW3 that the specific demand of scooter was made by Chaman Lal and it was not required for his old parents. There is no direct or cogent evidence on record even to suggest remotely when, how, where and in what manner, appellant- Bishambri Devi and her husband Rattan Chand made any demand of dowry articles. There is no evidence on record that either the deceased, her parents or brothers ever made any complaint to any respectable person or to the police with regard to harassment to the deceased by her parents-in-laws. No Panchayat had even been convened by PW3 in this respect.
23. Sequelly, the evidence of PW4 is not only vague but speculative as well in this direction. She has stated that her sister Ramesh Rani told her regarding the mal-treatment of the accused. Their names have not been mentioned by PW4 Baby in her statement. It has come in Crl.Appeal No.1238-SB of 1999 9 evidence that there was no demand of dowry at the time of marriage of his sister. If Rattan Chand and appellant-Bishambri Devi were to demand dowry, then they would have made such demands at the time of marriage of their only son-Chaman Lal. It does not appeal to reason, that appellant- Bishambri Devi and Rattan Chand, who are old persons and does not know how to drive the vehicle, would have demanded the scooter through his son. If parents-in-laws of the deceased had started harassing her after six months from the date of marriage, as projected by the PWs, then she ought to have lodged the protest to some respectables and convened Panchayat or at last ought to have reported the matter to the police, which is totally lacking in the instant case.
24. The prosecution claimed that the deceased was residing with her parents and a petition for restitution of conjugal rights was filed by appellant-Chaman Lal invoking the provisions of Section 9 of the Hindu Marriage Act. Ultimately on 15.09.1997, a compromise was got effected between the parties and the deceased was sent to her matrimonial home on trial basis and the case was adjourned to 04.10.1997. On that day, both the parties came to the court and stated that they have been living amicably. Then the petition under Section 9 of the Hindu Marriage Act was dismissed as withdrawn. According to DW1-Raj Mal, Advocate, the compromise was got effected with the intervention of the parents of both the parties. PW3 in his initial version Ex.PK has also stated that in the wake of compromise and with the consent of his parents, the deceased started residing in her matrimonial home. If the parents-in-laws of the deceased did not intend to bring her back to their house, then, they would not have entered into compromise with her. It is a matter of fact that neither any Sarpanch or Member Panchayat, nor any neighbourer of the appellants was examined by the prosecution in the court to prove that appellant-Bishambri Devi had ever mal-treated or harassed the deceased at any point of time. Moreover, PW6 admitted that cremation of the deceased Ramesh Rani took place in village Palli i.e., village of the appellant. If parents-in-laws of the deceased had ever mal-treated her then the complainant party would have taken the dead body to their own village. None of the prosecution witness has so stated that in-laws has done anything against the deceased soon before her death.
25. As strange as it may seem, but strictly speaking the tendency of Crl.Appeal No.1238-SB of 1999 10 the relatives, involving the members of entire family of the husband of the deceased wives, in cases of dowry deaths, has been tremendously increasing day-by-day, which is adversely affecting the social fabric of the society. It cannot possibly be denied that for the fault of the husband, the in-laws cannot, in all cases, held to be involved in the demand of dowry. In cases, where such accusations are made, the overt acts attributed to the persons other than husband, are required to be proved beyond reasonable doubt. By mere conjectures and implications, in-laws cannot be held guilty for the offence relating to dowry deaths. As indicated earlier, a tendency is, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused.
26. It is not a matter of dispute that the parents of the deceased were alive at the time of occurrence. It is a matter of common knowledge that in such cases, first of all, a daughter would narrate the tale of woe to her parents and they would take effective steps to redress her grievance. In the present case, it remained unfolded mystery as to why neither the parents of the deceased reported the matter to the police, nor were examined by the prosecution in the court, though their evidence was most material, as regards the involvement of parents-in-laws of the deceased is concerned.
27. It means, all the allegations emanating from the evidence on record with regard to demand of dowry against in-laws of the deceased are as vague as anything and general in nature. Though the trial Judge has rightly acquitted Rattan Chand, father-in-law of the deceased, but to me, he has fell in legal error in convicting appellant-Bishambri Devi(mother-in- law) on the same set of evidence. Hence, she also deserves the benefit of doubt in this behalf on the same analogy. Therefore, having extended the benefit of doubt, appellant-Bishambri Devi is also acquitted of the charge framed against her.
28. Be that as it may and above being the position of evidence on record, now the core question, which arises for determination in this appeal Crl.Appeal No.1238-SB of 1999 11 is, whether the prosecution has substantiated the charge framed against main accused appellant-Chaman Lal, husband of the deceased, for the commission of crime, in question or not?
29. The celebrated argument of learned counsel that as the evidence brought against appellant-Chaman Lal falls short as is required to prove a criminal charge, therefore, he deserves to be acquitted, is not only devoid of merit but misplaced as well. Admittedly, appellant-Chaman Lal was charge- sheeted for the commission of offence punishable under Section 304-B IPC, which postulates that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
30. The combined reading of this provision would reveal that in order to seek conviction against a person for the offence of dowry death, the prosecution is obliged to prove that: (a) the death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances; (b) such death should have occurred within 7 years of her marriage; (c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband; (d) such cruelty or harassment should be for or in connection with the demand of dowry; and (e) to such cruelty or harassment the deceased should have been subjected soon before her death.
31. As is evident from the record, the marriage of appellant- Chaman Lal was solemnised with the deceased, four years prior to the present occurrence, according to Hindu rites and ceremonies and a son was born out of the said wedlock. After six months of solemnisation of the marriage, appellant-Chaman Lal started harassing and treating her with cruelty for and in connection with the demand of dowry. PW3 maintained in his statement(Ex.PK) as well as in the court that appellant-Chaman Lal came to his house and made a specific demand of Rs.10,000/- for the purchase of a scooter. PW3 demonstrated his inability to meet his demand, then he(Chaman Lal) turned the deceased out of her matrimonial home. Not Crl.Appeal No.1238-SB of 1999 12 only that PW3 has so stated, but PW4 has also deposed that her sister Ramesh Rani was married to appellant-Chaman Lal four years earlier to her death. Six months after the marriage, the accused started harassing her sister due to bringing less dowry. She was turned out from her matrimonial home and started living with her parents. She gave birth to a son. According to PW4, appellant-Chaman Lal filed a case against the deceased at Dasuya, where she was awarded maintenance. But he was not ready to pay maintenance allowance and agreed to take her back to his house. Two months thereafter, he again started harassing her sister.
32. Meaning thereby, there is reliable and cogent evidence on record with regard to the involvement of appellant-Chaman Lal, for the commission of crime, in question. PW3 and PW4 were cross-examined at length but nothing substantial material could be elicited in the searching cross-examination to dislodge their testimonies and to impeach their credibility as regards the specific demand of dowry and harassment by appellant-Chaman Lal, is concerned.
33. Thus, it would been seen that it stands proved on record by reliance evidence that the deceased consumed some poisonous substance and her death had occurred, otherwise than under normal circumstances within seven years of her marriage. She was subjected to cruelty and harassment by her husband for or in connection with the demand of dowry.
34. Faced with the situation, learned counsel appearing on behalf of the appellant has fairly acknowledged that he will not be in a position to contest the involvement of the appellant any more, in view of the acceptable evidence on record. But he urged that assuming for the sake of arguments, if the prosecution story and evidence are believed, as such, even then no offence under Section 304-B IPC is made out. Because, there is not an iota of evidence on record that the deceased was subjected to such cruelty or harassment by her husband soon before her death, which is an essential and important ingredient for the offence prescribed under Section 304-B IPC. The argument further proceeds that once the essential ingredient of demand of dowry soon before her death is missing, in that eventuality, the acts of appellant-Chaman Lal would be covered under Section 306 IPC only. In order to buttress the argument, he has placed reliance upon the judgments of the Hon'ble Apex Court in cases Hira Lal and others Versus Crl.Appeal No.1238-SB of 1999 13 State (Govt. of NCT) Delhi, (SC) 2003(8) S.C.C. 80 : 2003 A.I.R. (SC) 2865 : 2003(3) Recent Criminal Reports(Criminal) 830 and Harjit Singh Versus State of Punjab, 2006(1) Recent Criminal Reports(Criminal) 133 .
35. Learned State Counsel has argued that there is evidence of PW4 to prove that the appellant treated the deceased with cruelty soon before her death in this regard.
36. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after considering the matter deeply, to my mind, this contention of learned counsel for the appellant, has full strength. No doubt, PW4-Baby, sister of the deceased, has vaguely stated that on 02.12.1997, she went to the house of Ramesh Rani, where she told her that accused were harassing and mal- treating her for bringing less dowry. Then, she went to the house of her parents in village Deoli, and told the entire position to her parents and brother. PW3 told her that he will go to Ramesh Rani's house on the next day to enquire the matter along with Sarpanch/Pardhan of the village. But no implicit reliance can be placed on her statement in this relevant connection. In the instant case, PW3 while giving his initial statement (Ex.PK) to the police, did not mention a word that PW4 went to the matrimonial home of the deceased on 02.12.1997 or that she came to his house in village Deoli and told the entire position to her parents. Moreover, he has not indicated that PW4 accompanied him to the hospital on 03.12.1997. There is not a whisper in the statement(Ex.PK), which formed the basis of FIR in this relevant connection. Moreover, PW3 admitted in his cross-examination that after recording his statement, the statements of his father and sister(PW4) were recorded by the police in the hospital in his presence. PW4 in examination-in-chief also so stated that her statement was recorded by the police in the hospital. But their statements stood contradicted from the record because the perusal of statement of PW4, Ex.DA would reveal that it was subsequently recorded by the police on 06.12.1997 and not on 03.12.1997 as built-up by them. Besides it, she made improvement in her earlier statement in the court and was duly confronted with her earlier statement, Ex.DA. Had PW4 actually gone to the matrimonial home of the deceased on 02.12.1997 or was present in the Crl.Appeal No.1238-SB of 1999 14 hospital on 03.12.1997 with his brother? In that eventuality, these facts would have been narrated by PW3 to the police and it would have incorporated in his statement(Ex.PK), which formed the basis of FIR (Ex.PK/2).
37. Meaning thereby, the evidence of PW4 was subsequently doctored and fabricated with an unsuccessful attempt to complete the essential ingredient of the offence prescribed under Section 304-B IPC that she(Ramesh Rani) was subjected to cruelty and harassment by her husband for or in connection with the demand of dowry soon before her death. The demand of Rs.10,000/- for purchase of scooter was years prior to her death. In this manner, if the evidence of PW4 is excluded from consideration in this respect, then, there is not an iota of evidence on record to prove that main accused Chaman Lal subjected Ramesh Rani to cruelty and harassment for or in connection with the demand of dowry soon before her death. Hence, the essential ingredient of Section 304-B IPC that cruelty for or in connection with the demand of dowry should be soon before her death, is totally lacking in the instant case. In the absence of the same, then the offence would naturally fall within the ambit and purview of Section 306 IPC and not under Section 304-B IPC.
38. An identical question arose for determination in Hira Lal and Harjit Singh's cases(supra). Having interpreted the provisions of Sections 304-B and 306 IPC, it was ruled that under such circumstances, accused could only be convicted under Section 306 IPC. The law laid down by the Hon'ble Apex Court mutatis-mutandis is applicable to the facts of the present case and is complete answer to the problem in hand.
39. Thus, the findings recorded by the trial court rebel against the realism and lose their sanctity and credibility to that extent. Therefore, the trial court appears to fell in error in convicting the appellant-Chaman Lal under Section 304-B IPC and the legal error deserves to be corrected in this context.
40. No other point worth consideration has been urged or pressed by the learned counsel for the parties.
41. In the light of aforesaid reasons, having extended the benefit of doubt, appellant-Bishambri Devi is acquitted of the charge framed against her. Likewise, appellant-Chaman Lal is also acquitted of the charge, for the Crl.Appeal No.1238-SB of 1999 15 commission of offence punishable under Section 304-B IPC. Be that as it may, at the same time, he is held guilty and convicted under Section 306 IPC.
42. Again, it is not a matter of dispute that appellant-Chaman Lal has already undergone the substantive sentence for a period of more than two years and one month (without any remission). He is the only son of his parents. He was 31 years old at the time of occurrence and has already suffered the agony of protracted trial for the last thirteen years. He has to look after his old parents and is ready to pay the compensation. Therefore, to my mind, ends of justice would squarely be met and sub-served, if appellant-Chaman Lal is sentenced to the period already undergone by him and is directed to pay some compensation in this respect.
43. Therefore, in this view of the matter, appellant-Chaman Lal is convicted under Section 306 IPC and is sentenced to the period already undergone by him. He is also directed to pay a sum of Rs.25,000/- as compensation to the minor son of the deceased for his welfare and education within two months. However, sentence of fine is maintained.
44. For the reasons recorded above, the appeal is partly accepted and the impugned judgment of conviction and order of sentence are modified, in the manner stated here-in-above.
Needless to say, the compliance and procedural consequences would follow accordingly.
March 12, 2010 ( MEHINDER SINGH SULLAR)
seema JUDGE
Whether to be referred to reporter?Yes/No