Punjab-Haryana High Court
Dharmender And Others vs State Of Haryana on 24 October, 2013
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Crl. Appeal No.1558-SB of 2003 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 1558-SB of 2003 (O&M)
Date of decision: 24.10.2013
Dharmender and others
...Appellants
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. S.S Narula, Advocate for the appellants.
Mr. R.N. Bhardwaj, AAG, Haryana.
****
Jitendra Chauhan, J.
Convicts Dharmender, Kamal Singh and Bimla have filed this criminal appeal assailing their conviction and sentence ordered by learned Additional Sessions Judge, Fast Track Court, Gurgaon vide judgment dated 04.08.2003 and order of sentence dated 07.08.2003. The appellants were convicted under Sections 498-A, 304-B, 34 of the Indian Penal Code (for short 'IPC') and sentenced to undergo rigorous imprisonment for 2 ½ years with fine of `500/- each and in default of payment of fine, to further undergo rigorous imprisonment for three months each under Section 498-A IPC read with Section 34 IPC. They were further sentenced to undergo rigorous imprisonment for seven years with fine of `2000/- each under Section 304B read with Section 34 Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -2- IPC and in default of payment of fine, to further undergo rigorous imprisonment for one year each.
The case of the prosecution as culled out from the judgment of the Trial Court is as under:-
"On 22.09.2001, a V.T. Meassage was received from Police Station City Gurgaon by SI Shakuntala, regarding burn injuries suffered by Sunita at her in- laws house. Upon which, she reached Safdarjang Hospital, Delhi, where Sunita was admitted. Father of Sunita deceased met SI Shakuntala and got recorded his statement to the effect that Sunita was her daughter, who was married to Dharmender on 15.04.2001 according to Hindu rites and ceremonies in village Islampur, Gurgaon, and gave sufficient articles of dowry including motor cycle, T.V., fridge, double bed, sofa, utensils, jewellery articles at that time. He further reported before the police that in- laws of her daughter were not happy with the dowry articles and when Sunita came to her parental house, she told to him as well as to Saroj his wife in this regard. He also stated before the police that after one month of marriage of Sunita, he had gone to Islampur to the matrimonial home of Sunita and then he talked to Kamal Singh, father-in-law, Bimla, mother-in-law and Dharmender, son-in-law, qua the demand of dowry and made them to understand that he was not in a position to meet their demands regarding Maruti car and `50,000/- in cash. He after satisfying the in- laws and husband of Sunita came back to his house. After this Sunita once or twice again came to her parental house and then she told that her in-laws Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -3- were demanding Maruti Car and `50,000/- and for which they were harassing her. He further stated that on 22.09.2001, his daughter was at his house and again she told about the demand made by the accused persons and with a threat to kill her, if the demand was not met. On the same day, at about 7.00 AM, Dharmder gave a telephonic call at the residence of Ranbir Singh to the effect that he and his parents had met with an accident and as such, Sunita be sent back to her matrimonial home and for that purpose she be brought at railway crossing Bijwasan and from where he would take Sunita on motor cycle to the house. According to the complainant he then sent Sunita along with his son Bhupinder at about 10.30 AM for railway crossing of Bijwasan. Accordingly, Sunita was left at Bijwasan railway crossing and she was then taken by Dharmender to the house. At about 4/5 PM, on the same day again he got the message from Dharmender that Sunita was burnt. Thus, complainant along with others reached Islampur and then to Safdarjang hospital, where Sunita was found dead. Shamsher Singh reported to the police that his daughter Sunita had died due to torture on account of dowry and so action be taken against father-in-law, mother-in-law and husband. On the basis of this complaint, formal FIR was recorded by ASI Ishwar Singh.
On 23.09.2001 SI Shakuntala along with complainant and Sat Parkash went to village Islampur, inspected the spot, prepared the rough site plan and took into possession broken pieces of bangles, kanny of plastic containing kerosene oil, one Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -4- quilt, burnt hairs of deceased and one piece of cloth after converting them into separate sealed parcels. Statements of the witnesses were recorded. Inquest proceedings of Sunita were completed. Before Sunita was referred to Safdarjang Hospital, she was medico-
legally examined by Dr. Nawal Kishore on 22.09.2001, in which doctor reported that the patient was having 100% burn injuries. Post mortem examination on the dead body of Sunita was conducted by Dr. B. Swain, CMO, Safdarjang Hospital, New Delhi, on 23.09.2001. According to Dr. B. Swain, cause of death was shock following ante- mortem burn injuries. The doctor proved the death summary duly initialed by him. Sadanand photographer was called at the spot by the police on 23.09.2001, who prepared photographs as well as negatives. Copies of special reports were delivered to Illaqa Magistrate and other authorities on 23.09.2001 by Constable Om Parkash. SI Ishwar Singh, on 26.09.2001 got the investigation of this case. He arrested Dharmender accused on 27.09.2001. He collected dowry articles on 29.09.2001. Kamal Singh and Bimla were also arrested by him on 29.09.2001. Jewellery items were collected by SI Ishwar Singh on 30.09.2001. All the articles were taken by him by preparing necessary memos. SI Ishwar Singh on 10.10.2001, sent three parcels to FSL for test. On 04.12.2001, one parcel was sent to FSL for examination of hairs of deceased received from Delhi. He recorded the statement of Naresh Kumar draftsman. Report of FSL was obtained. Scaled site plan was got prepared from Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -5- Naresh Kumar, draftsman. After the conclusion of investigation, challan against accused was presented in the Court."
On presentation of challan, the trial Court finding prima facie evidence against accused-appellants Dharmender, Kamal Singh and Bimla, framed charge for the offences under Sections 498-A and 304-B of the Indian Penal Code read with Section 34 IPC. The accused pleaded 'not guilty' to above charge and claimed trial.
In support of its case, the prosecution examined the following witnesses:-
PW-1, Dr. Nawal Kishore, who was posted as Medical Officer, General Hospital, Gurgaon on 22.09.2001, conducted the medico-legal examination of deceased Sunita, and found 100% burns on her body and later on referred her to Safdarjang Hospital, Delhi;
PW-2, Dr. B. Swain, the Chief Medical Officer, Safdarjang Hospital, Delhi on 23.09.2001, conducted the post-mortem examination on the dead body of deceased Sunita, found dermoepidermal burns all over the body. Smell of kerosene was coming out of scalp hair. In the opinion of the doctor, the cause of death was due to shock and ante mortem burn injuries;
PW-3, Balwan Singh, neighbour of accused/appellant Dharmender Singh, testified recovery memo Ex.P.C;
PW-4 Tara Chand, member panchayat from the village of accused/appellants testified his signatures on the recovery memo Ex.PD Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -6- vide which certain dowry articles were taken into possession by the police;
PW-5 Sadanand, Photographer, took the photographs Ex.P1 to Ex.P5, the negatives of which are Ex.P6 to Ex.P10;
PW-6 UGC Jagdish Chand tendered his affidavit Ex.PE;
PW-7 C-Mohd. Usman also tendered his affidavit Ex.PF;
PW-8 Naresh Kumar, Draftsman; who prepared the scaled site plan Ex.PG of the place of occurrence;
PW-9 Constable Hari Singh, on 22.09.2001 brought ruqa to Police Station Sadar, Gurgaon for registration of the case;
PW-10 Shamsher Singh, father of the deceased, made a detailed statement, with regard to the date, time and place of occurrence, and harassment being meted out to the deceased at the hands of the accused in connection with the continuous demand of dowry from the date of her marriage till death;
PW-11 Shri Peter Bara, SDM, who prepared the inquest proceedings of the deceased, testified his signatures on Ex.PI;
PW-12 Constable Dharmender Singh tendered his affidavit Ex.PJ in evidence;
PW-13 Braham Parkash also testified the date of marriage, demand of dowry and harassment meted out to the deceased;
PW-14 Ranbir deposed that he received a telephonic call on 22.09.2001 about the incident;
PW-15 Bhupinder, brother of the deceased deposed about the Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -7- factum of marriage with Dharmender and dropping the deceased at railway crossing Bijwasan where he met Dharmender;
PW-16 C- Om Parkash testified about handing over the special reports to the Illaqa Magistrate on 23.09.2001;
PW-17 SI Shakuntala proved on record the whole investigation;
PW-18 SI Ishwar Singh also testified about the investigation and registration of formal FIR Ex.PM.
The statements of the accused under Section 313 Cr.P.C., were recorded. They pleaded innocence and alleged false implication. In defence, the accused had examined DW-1 Raja Ram; DW-2 K.S. Yadav, Manager, Union Bank of India; DW-3 Dalbir Singh Patwari; DW-4 Surender Singh, Registration Clerk; DW-5 Anil Kumar Patwari and DW-6 Bharat Bhushan.
After hearing the Public Prosecutor for the State, the Counsel for the accused, and after going through the evidence on record, the trial Court convicted and sentenced the accused/appellants, as stated hereinbefore.
Feeling aggrieved, against the judgment of conviction and sentence delivered by the trial Court, the instant appeal was filed by the accused/appellant which was admitted on 28.08.2003.
Learned counsel for the appellants/accused has contended that the appellant/accused have been falsely implicated in the present case. The learned trial Court has grossly erred on the facts as well as in Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -8- law while convicting the appellants/accused. The accused/appellants had never raised any demand of dowry. Had their been any demand of dowry or had there been any taunting of deceased Sunita by the accused that she had brought insufficient dowry, she or her parents would have certainly lodged a report before her death as they had many occasions to do so, but they did not report the matter to the police. He further submitted that, under these circumstances, it could be said that the prosecution story that Sunita was treated with cruelty, on the ground of bringing insufficient dowry right from the date of her marriage, until her death, is nothing but a concoction of lies.
Learned counsel further argued that on the day of occurrence, she was at her in-laws house. The parents of Sunita were informed by appellant/accused Dharmender about the incident that she was burnt. Moreover, Kamal Singh, father-in-law of deceased Sunita himself took her to General Hospital and then to Safdarganj Hospital, Delhi. At the time of taking her to General Hospital, deceased Sunita was conscious. The complainant has falsely roped in the appellants/accused. Further the car (i.e. keeping in mind that allegations were of demand for car as dowry) could not be of any use for the father-in-law or mother-in- law as it could only be used by the husband. It is not a case of cruelty or harassment. The husband Dharmender and deceased Sunita were living separately from the in-laws though under the same roof.
It is further contended that PW-3, Balwan Singh, neighbour of accused Dharmender stated in his statement that he had never heard Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -9- that the accused persons ever teased Sunita for demand of dowry. Shamsher Singh, father of deceased Sunita never came to their village and held any panchayat to the effect that Sunita was being harassed by the accused/appellants for demand of dowry. He heard in the village that Sunita used to insist Dharmender to live separately from his parents.
He further referred to the statement of DW-1 Raja Ram in which he has stated that total amount lying deposited in the account of Smt. Bimla Devi is to the tune of Rs.3,53,360/-. Therefore, raising of demand of dowry is only a concocted story by the complainant side just to rope in the accused/appellants.
On the other hand, the learned State counsel has submitted that from the evidence, it has been proved that she was continuously harassed and treated with cruelty. The accused/appellants were demanding a Maruti Car and a sum of `50,000/- despite the fact that sufficient dowry articles were given at the time of marriage. The testimony of PW-9 Shamsher Singh, father of deceased, proved that she was beaten up after ten days of marriage, for dowry. He further argued that the accused/appellants were rightly convicted by the trial Court.
This Court has heard the arguments of the learned counsel for the appellants, the learned State counsel and has carefully gone through the record of the case.
Section 113-A and 113-B of the Indian Evidence Act reads as under:-
"113-A. Presumption as to abetment of suicide by a married woman.--When the question Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -10- is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
113-B. Presumption as to dowry death.-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
Section 304B(1), IPC deals with Dowry Death and is stated as follows:
(1) 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."
The submission of the counsel for the appellant that the Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -11- accused/appellants never raised any demand of dowry or if any demand was raised, then the matter should have been reported to the police or raised before village panchayat is of no consequence. The deceased Sunita was married for about seven years, when her life came to an end. She tolerated the taunts of the accused that she had brought insufficient dowry, in the hope that better sense may prevail upon the in-laws family, but of no avail. However, she lost no time in telling her tale of woes, that she was being subjected to cruelty as she had brought insufficient dowry, to her parents. It is a matter of common experience that a married daughter, can only apprise her parents and near relatives about the tale of woes suffered by her at the hands of her in-laws. It was under these circumstances that, whenever, she was maltreated by the accused, on the ground of bringing insufficient dowry, she informed her parents. Since she did not want to make the things public, neither she nor her parents lodged any report, with regard to the mal-treatment meted out to her, at the hands of the accused regarding bringing insufficient dowry. Non- lodging of the report, with the police, before her death that she was subjected to cruelty, could not be taken, as an adverse circumstance. The submission of the counsel for the appellant, in this regard, being without merit, must fail and the same stands rejected.
So far as appeal of father in-law Kamal Singh and mother in- law Smt. Bimla is concerned, it should to succeed. If the husband compels his wife to bring dowry, only the husband will be guilty. Any other family member, who may have silently connived with the husband, Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document Crl. Appeal No.1558-SB of 2003 (O&M) -12- while living together under one roof, cannot be held guilty for the dowry death. There must be positive and specific demand of dowry by the members of the family.
In this case, father in-law did his best to save the deceased by carrying her from one hospital to another to provide her best possible treatment. This fact is a strong mitigating circumstance even it if is presumed that father-in-law silently connived with the husband. So, the father in-law Kamal Singh and mother in-law Smt. Bimla are entitled to the benefit of doubt by way of abundant caution.
Keeping in view the facts and circumstances, the appeal is partly allowed and the judgment of conviction and the order of sentence dated 04.08.2003, rendered by the Addl. Sessions Judge, Fast Track Court, Gurgaon is set aside qua appellants Kamal Singh and Bimla. Both are acquitted of the charges framed against them.
The appeal qua appellant Dharmender, is dismissed. He shall surrender before the Chief Judicial Magistrate, Gurgaon to undergo the remaining part of the sentence.
24.10.2013 (JITENDRA CHAUHAN)
sumit.k JUDGE
Note:- Whether referred to reporter or not - Yes / No Sumit Kumar 2014.01.10 19:19 I attest to the accuracy and integrity of this document