Punjab-Haryana High Court
Gianender Kumar And Others vs State Of Haryana on 28 May, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. 925-DB of 2008 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Criminal Appeal No. 925-DB of 2008
Date of Decision: 28.5.2012
Gianender Kumar and others .........Appellants
Vs.
State of Haryana .......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. J.S.Bedi, Advocate
for the appellants.
Mr. G.S.Chahal, Addl. A.G., Haryana.
.....
SABINA, J.
Appellants have preferred this appeal challenging their conviction and sentence under Section 304-B, 498-A/34 of the Indian Penal Code ('IPC' for short) as ordered by the trial court vide judgment/order dated 21.11.2008.
Prosecution case was set in motion on the basis of the statement of complainant Bhoom Singh. The complainant stated in his statement that the talks regarding marriage of his youngest daughter Malti were going on in the year 2005 with Gianender. Jai Singh raised the demand of Maruti 800 car. However, later Shyama Devi wife of Jai Singh, raised the demand of Alto car, when his son Meghraj visited them. When Jai Singh visited his house, he told him that he would give him the price of Alto car. Jai Singh said that they would have to pay for Air Conditioned Alto car and 25 tolas of gold. Since he was not in a position to fulfill the said demand, he rejected the proposal for Crl. Appeal No. 925-DB of 2008 - 2- marriage of his daughter with Gianender. In December 2006, Mohan Singh Shekhawat came to his house on behalf of Jai Singh and persuaded him to reconsider the proposal of marriage of his daughter Malti with Gianender. He refused the said proposal as he had come to know that Jai Singh had also demanded dowry from some other person of village Tankari and that matrimonial alliance had failed. However, due to pressure of relatives, he agreed to solemnize marriage of his daughter Malti with Gianender. The marriage ceremony took place on 7.2.2007 and as per the demand raised by the groom side, he gave Alto car, 25 tolas of gold and ` 51,000/- in cash along with other articles as per his financial condition. The family members of Jai Singh were not satisfied with the dowry given by him. Jai Singh, Shayma Devi, Bala Devi and Gianender started torturing and maltreating Malti and pressurized her to bring more dowry. Malti had told him about this but he had ignored it. At 4.00 P.M. on 1.4.2007, his wife received a phone call that condition of his daughter Malti was serious. When he made a phone call to Jai Singh, he came to know that Malti had died on account of burn injuries. When he reached the house of Jai Singh along with other villagers, he found that his daughter was lying dead due to burn injuries in a room. Jai Singh told that him 4-5 persons were playing cards in front of his house and on seeing smoke coming from his house they broke open the door and entered the house.
On the basis of the statement of the complainant, formal FIR No. 62 dated 1.4.2007 was registered at Police Station Bawal District Rewari under Section 498-A, 304-B, 34 IPC.
Thereafter, Assistant Sub Inspector Rajender Singh went to the spot and prepared rough site plan. He got the spot Crl. Appeal No. 925-DB of 2008 - 3- photographed from Puran Chand Photographer. He prepared inquest report qua the dead body and lifted burn articles from the spot. He recorded the statements of the witnesses present at the spot and sent the dead body for post mortem examination.
After completion of investigation and necessary formalities challan was presented against the appellants.
During trial an application under Section 319 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) was moved by the prosecution for summoning Bala Devi as additional accused. The said application was dismissed by the trial court vide order dated 23.11.2007.
In order to prove its case, prosecution examined 16 witnesses during trial.
After the close of prosecution evidence, appellant Jai Singh when examined under Section 313 Cr.P.C. pleaded as under:-
"I am innocent. I am retired from a disciplined forces as an Honorary Captain and drawing Rs. 12000/- p.m. as pension. I have landed properties in Haryana as well as in Rajasthan. On the alleged date of occurrence I had gone to Katkai to bring my daughter in law Bala Devi and her children. I came to know about this incident only in the late in the night on the same day. All the allegations regarding demand of dowry and giving of dowry are false and fabricated. The Alto car was purchased by my elder son Jitender in the name of Gianender from my pocket." Crl. Appeal No. 925-DB of 2008 - 4-
Appellant Gianender Kumar when examined under Section 313 Cr.P.C. pleaded as under:-
"I am innocent. I was engaged with Sheema prior to the marriage with Malti. I used to meet Sheema and frequently used to talk to Sheema on telephone. On the alleged date of occurrence I had conversation with Malti from my mobile on her mobile and that she was insisting that I should not meet Sheema and talk to her. I told her that she is my friend and I have no other relationship with her and she should not object meeting her which was not like by Malti and on that account, out of frustration, she might have committed suicide. All the allegations regarding demand of dowry and giving of dowry are false and fabricated. My parents have also been falsely involved. They have already lot of property with them."
Appellant Shyama Devi when examined under Section 313 Cr.P.C. pleaded as under:-
"I am innocent. All the allegations regarding demand of dowry and giving of dowry are false and fabricated. Malti was living separately from me and my husband Jai Singh and my daughter in law Bala Devi."
Appellants examined three witnesses in their defence. Learned counsel for the appellants has submitted that the prosecution had failed to establish its case that it is a case of dowry death. In fact as per the evidence on record, the deceased had committed suicide as she was unhappy qua relationship of Crl. Appeal No. 925-DB of 2008 - 5- her husband with Sheema. Appellant Gianender had left for his duty on 4.3.2007. The deceased had remained at her parental house from 5.3.2007 to 26.3.2007. As per the statement of mother of the deceased recorded during investigation, the deceased had never complained to her qua any maltreatment meted out to her. No reference was made in the FIR qua demand of ` 2,00,000/- from the deceased. The version given in the FIR that earlier proposal with regard to marriage of appellant Gianender with deceased Malti had been turned down by the complainant was not put-forth by the complainant when he appeared in the witness box during trial. Rather, the complainant had denied the said version.
Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. The deceased had died within two months of her marriage in the house of her in-laws due to burn injuries. From the evidence on record it was duly established that it was a case of dowry death as the deceased was being harassed by the appellants to bring ` 2,00,000/- from her parents.
PW-5 Dr. Vinod Kumar Kangra deposed that on 2.4.2007, he had conducted post mortem examination on the dead body of Malti. The deceased had burns present all over her body. The body and the remnant clothes emitted smell of kerosene oil. In his opinion, the cause of death was due to burns and its complications which were ante mortem in nature and sufficient to cause death. In his cross examination, he deposed that the possibility that Malti had sustained burn injuries herself could not be ruled out.
Crl. Appeal No. 925-DB of 2008 - 6-
Complainant while appearing in the witness box as PW-1 deposed that his daughter Malti was married to Gianender on 7.2.2007. At the time of marriage, he had given Alto car and ` 51,000/- in cash and 25 tolas of gold as per the demand of the appellants. All the other necessary dowry articles were also given by him to the accused. The demand of dowry was made by Jai Singh father-in-law of his daughter, Shyama Devi mother-in- law of his daughter, Gianender husband of his daughter and Bala Devi wife of Jitender, son of Jai Singh. However, all the said four persons were not satisfied with the dowry given at the time of marriage of his daughter and they harassed Malti qua insufficiency of dowry. His daughter also told him that the accused were demanding ` 2,00,000/- as dowry. He had told his daughter that he would meet the accused within a day or two and prevail upon them but on 1.4.2007 his wife received a phone call that condition of his daughter was serious. Thereafter, he went to the in-laws house of his daughter and saw that his daughter was lying dead in a room in a burnt condition.
PW-3 Sushila has corroborated the statement of PW-1 The prosecution version is that it is a case of dowry death. For a case to come within the ambit of provisions of Section 304-B IPC, following essentials must be satisfied before any death can be termed as a dowry death:-
(1) The death of a woman was caused by burns or bodily injury or had occurred otherwise than under normal circumstances;
(2) such death should have occurred within 7 years of her marriage;Crl. Appeal No. 925-DB of 2008 - 7-
(3) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
(4) such cruelty or harassment should be for or in connection with the demand of dowry; and (5) to such cruelty or harassment the deceased should have been subjected to soon before her death.
In the present case, appellant Gianender was married to deceased Malti on 7.2.2007. Malti had died on 1.4.2007 due to burn injuries. Thus, Malti had died an unnatural death within two months of her marriage in the house of her in-laws.
The question that requires consideration is as to whether it was a case of murder or suicide.
PW-11 Assistant Sub Inspector Rajender Singh in his cross examination deposed that iron chain in a broken condition was taken in possession by him. The said fact establishes the version of the complainant in the FIR that he had been told by Jai Singh that some persons who were playing cards in front of his house had noticed smoke coming out from his house and had entered the house after breaking the door. Although the complainant has denied having made such statement in his cross examination and he was duly confronted with his statement (Ex. PA) recorded by the police. There is nothing on record to suggest that any of the appellants were present in the house at the time of occurrence. Admittedly, appellant Gianender had left for his duty on 4.3.2007. There is nothing on record which would lead to the inference that appellant Jai Singh or Shyama Devi were present in the house and had set the Crl. Appeal No. 925-DB of 2008 - 8- deceased on fire. It appears that deceased Malti had committed suicide by setting herself on fire after sprinkling kerosene oil on herself.
The next question that requires consideration is that as to whether Malti had committed suicide on account of demand of dowry by the appellants.
PW-3 Sushila deposed that qua demand of ` 2,00,000/- her daughter had made a phone call on 30.3.2007. However, the said fact was not mentioned in Ex. DB her statement recorded by the police. Rather in her statement (Ex. DB), Sushila had stated that she had talked to her daughter on 28.3.2007 and 30.3.2007 and she had told her that everything was fine. As per PW-3 Sushila, her daughter had visited her after marriage on 10.2.2007 and had returned back to her matrimonial home on 11.2.2007. Appellant Gianender had returned back to his duty on 4.3.2007. Thereafter, her daughter had come to her house on 5.3.2007 and had returned back on 26.3.2007. Similarly, the complainant had not stated in his initial statement Ex. PA qua demand of ` 2,00,000/- by the accused after the marriage of his daughter. As per the complainant, he had given Alto car, ` 51,000/- in cash, 25 tolas of gold and other items towards dowry at the time of marriage of his daughter. However, qua the subsequent demand of dowry he had not mentioned anything in his statement before the police. The fact that accused had demanded ` 2,00,000/- towards dowry from his daughter after the marriage was stated for the first time by the complainant in his statement in the court. The police official who had recorded the statements of the complainant and Crl. Appeal No. 925-DB of 2008 - 9- his wife was acting in discharge of his official duties and had no reason to record their statements falsely. It appears that due to death of their daughter soon after the marriage, the complainant as well as his wife have given it a colour of dowry death and had introduced the demand of ` 2,00,000/- from the accused while appearing in the witness box although no such thing was mentioned in the FIR.
PW-2 Ompal has deposed that demand of ` 2,00,000/- was being made by the appellants from his niece Malti. The said witness was duly confronted with his statement (Ex. DA) recorded by the police wherein he had not mentioned qua the demand of ` 2,00,000/- by the appellants towards dowry. PW-11 Assistant Sub Inspector Rajender Singh has deposed in his cross examination that he had correctly recorded Ex. DA without any addition or omission.
So far as PW-15 Govind Singh, Goldsmith is concerned, the said witness has been examined qua preparation of ornaments by him before the marriage of Malti with Gianender Singh. The said witness also fails to advance the case of the prosecution qua demand of dowry or harassment on account of dowry to the deceased after her marriage.
Having critically examining the statements of PW-1, PW-2 and PW-3 qua demand of dowry, we are of the opinion that the prosecution has failed to establish that there was demand of dowry and continuous cruelty and harassment to the deceased by the accused qua the said demand before her death by the appellants.
Since the demand of dowry from the deceased or harassment meted out to her on account of the said demand has Crl. Appeal No. 925-DB of 2008 - 10- not been established on record, the plea taken by appellant Gianender when examined under Section 313 Cr.P.C. appears to be probable. It appears that the deceased and her husband had some dispute qua his involvement with Sheema. Appellant Gianender has admitted that before the occurrence he had talked to Malti on telephone. It appears that due to the said talk with appellant Gianender, deceased Malti committed suicide and, thus, appellant Gianender had abetted the commission of suicide by the deceased.
Offence of abetment of suicide is punishable under Section 306 IPC. Whoever abets the commission of suicide by a person is guilty of offence punishable under Section 306 IPC. The basic ingredients of offence under Section 306 IPC are suicidal death and abetment thereof.
In the present case, the deceased had died within two months of her marriage. When a woman gets married she expects financial as well as social security in her matrimonial home. She also expects love and affection from her husband. She does not expect death under unnatural circumstances. In the present case, the deceased has committed suicide by setting herself on fire. She would not have finished her life unless and until she had been subjected to such a treatment which compelled her to commit suicide.
After carefully scrutinizing the evidence on record, we are of the opinion that appellant Gianender Kumar had abetted the suicide committed by his wife.
So far as appellants Jai Singh and appellant Shyama Devi are concerned, they are liable to be acquitted as no case of demand of dowry from the deceased or harassment to her is Crl. Appeal No. 925-DB of 2008 - 11- made out against them. The said appellants also cannot be said to be guilty of abetment of suicide by the deceased. For the fault of the husband, his parents cannot be held guilty of offence of abetment to suicide committed by the deceased.
The learned Apex Court in 'Kans Raj versus State of Punjab and others' AIR 2000 Supreme Court 2324, has held as under:-
"A tendency has, 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 as appears to have happened in the instant case."
Thus, in the present case the prosecution has failed to establish that there was cruelty and harassment in connection with demand of dowry soon before the death of deceased Malti and, thus, the conviction of the accused under Section 304-B IPC was not justified but in view of the facts and circumstances of the present case, appellant Gianender is found guilty of commission of offence under Section 306 IPC.
Although no charge was framed against appellant Gianender Kumar under Section 306 IPC but charge has been framed against him for commission of offence under Section Crl. Appeal No. 925-DB of 2008 - 12- 304-B IPC which is an offfence of higher degree. Since the offence under Section 306 IPC is of a lesser degree than offence under Section 304-B IPC, appellant Gianender Kumar can be convicted and sentenced for commission of offence under Section 306 IPC.
Their Lordships of Supreme Court in 'K Prema S.Rao and another versus Yadla Srinivasa Rao and others' (2003) 1 Supreme Court Cases 217, while dealing with the similar question, came to a conclusion that even though the charge was framed only under Section 304-B IPC, the person can be convicted under Section 306 IPC in a case where all ingredients necessary for framing of a charge under that section are available on record. Hon'ble the Supreme Court, after discussing facts in that case, had opined as under:-
"22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304-B and in the alternative Section 498-A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306 IPC with 498-A IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate Crl. Appeal No. 925-DB of 2008 - 13- charge framed under Section 498-A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 Cr. P.C. needs reproduction:-
"221. Where it is doubtful what offence has been committed-(l) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-
section (I), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
23. The provision of sub-section (2) of Section 221 read with sub-section (1) of the said Section can be Crl. Appeal No. 925-DB of 2008 - 14- taken aid of in convicting and sentencing the accused 1 of offence of abetment of suicide under Section 306 IPC along with or instead of Section 498-A IPC.
24. Section 215 allows criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 Cr. P.C. which reads:-
"215. Effect of errors - No error in stating either the offence or the particulars required to be stated in the charge, and no ommission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice."
The Apex Court in Pandharinath versus State of Maharashtra (2009) 14 Supreme Court Cases 537, has held as under:-
"It is a well-settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. Reference in this regard may be made to the decisions of this Court in State of Maharashtra versus Rajendra Jawanmal Gandhi and Crl. Appeal No. 925-DB of 2008 - 15- Tarekshwar Sahu versus State of Bihar."
"This Court in Shamnsaheb M. Multtani versus State of Karnataka had an occasion to deal with Section 222 Cr.P.C. The court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The court observed as follows in the relevant para:
(SCC p. 584, para 16).
16. What is meant by 'a minor offence' for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well.
Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis- a-vis the other offence."
Accordingly, this appeal is partly allowed. Appellants Jai Singh and Shyama Devi are acquitted of the charges framed against them. So far as appellant Gianender is concerned, his conviction and sentence qua commission of offence under Section 304-B, 498-A IPC are set aside. He is held guilty of Crl. Appeal No. 925-DB of 2008 - 16- commission of offence under Section 306 IPC and is convicted thereunder. He is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/- and in default of payment of fine, he shall further undergo rigorous imprisonment for six months.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
May 28, 2012
Gurpreet