Punjab-Haryana High Court
Ram Niwas vs State Of Haryana on 2 November, 2011
Author: K.C. Puri
Bench: K.C.Puri
Criminal Appeal No. 749 SB of 2001 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 749 SB of 2001
Date of decision : 2 .11.2011.
Ram Niwas
................ Appellant
vs.
State of Haryana
................. Respondent
CORAM :- HON'BLE MR. JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Sh. Anmol Partap Singh, Advocate for the appellant.
Sh. Munish Deswal, Deputy Advocate General, Haryana.
K.C. PURI, J.
Accused/appellant Ram Niwas has directed the present appeal against the judgment 12.6.2001 and order dated 13.6.2001 passed by Shri G.L.Goyal, the then learned Sessions Judge, Narnaul vide which the accused/appellant has been convicted under Sections 498-A and 304-B of the Indian Penal Code ( in short - the IPC ) and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Criminal Appeal No. 749 SB of 2001 2 Rs.1000/- under Section 304-B, IPC, in default of payment of fine to further undergo rigorous imprisonment for a period of six months and further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/-, under Section 498-A, IPC and in default of payment of fine to further undergo rigorous imprisonment for a period of one month. However, both the sentences were ordered to run concurrently. The trial Court acquitted the other co-accused-Smt.Chandro after giving her benefit of doubt.
2. The brief facts of the prosecution case are that Smt. Vinod, deceased daughter of complainant Om Parkash, was married with accused Ramniwas. After her marriage, she gave birth to two children, namely, Banti daughter and Kalia son. At the time of the marriage, complainant spent the amount as per his capacity and he also gave dowry articles, which included scooter, bed, utensils, clothes, jewellery etc. However, after the marriage Ramniwas and his mother Smt. Chandro kept on demanding more and more dowry articles. When Smt.Vinod failed to fulfill the demand of the accused, the deceased was given beatings by the two accused and the deceased told these facts to her father Om Parkash. Smt. Vinod also told her father that the two accused threatened to kill her in case she failed to fulfill their dowry demand.
3. On 23.12.1999, four -five persons of village Kotia came to village Ganiyar and they informed the complainant that his daughter Smt. Vinod and her two children have died. Receiving this information, Om Parkash accompanied by Bhagirath, Sada Nand came to village Kotie and they saw Smt Vinod and her two children lying dead in their house. Since Criminal Appeal No. 749 SB of 2001 3 the complainant knew about the harassment of the deceased at the hands of the accused, so he suspected that his daughter has committed suicide along with her two children due to harassment at the hands of the accused and, therefore, he made a written report to the police against the two accused on 24.11.1999. In this report, the complainant levelled allegations that the marriage of his daughter Smt. Vinod took place with accused Ramniwas on 07.12.1993 as per Hindu rites and ceremonies and he gave dowry articles according to his capacity. However, the two accused were not satisfied with the dowry articles and they kept on harassing Smt. Vinod and they also gave beatings to Smt. Vinod, when Vinod failed to fulfill their illegal demand of dowry. He further mentioned in the application that when daughter and son were born to the deceased even at that time the accused demanded fridge, gold chain and this demand was fulfilled by the complainant. Similarly, at the time of marriage of sister of Ramniwas accused, an amount of Rs.20,000/- was demanded by the accused and even this demand was fulfilled by the complainant but even then the two accused were not satisfied. In November 1999, the complainant received a letter from his daughter and the complainant came on leave to his village Ganiyar and he came to village Kotia on 21.11.1999 to meet his daughter. At that, Smt. Vinod told the complainant that the accused were demanding Rs.1,00,000/- from her. Smt.Vinod also told the complainant that the accused had threatened her that in case she failed to pay the amount, she would be killed. The complainant told his daughter that he would try to arrange for Rs.10,000/- or Rs.20,000/- within 5/7 days and he also made his daughter to understand that she should not fear from the accused. Thereafter, he also Criminal Appeal No. 749 SB of 2001 4 made to understand accused Ramniwas and his mother Smt. Chandro to keep and maintain his daughter well and that he was not in a position to pay cash amount or to give more dowry articles and he requested not to give beatings to Smt. Vinod in future. Upon this, the accused assured the complainant that in future they would not give beatings and they would not demand dowry articles. So the complainant assured Smt. Vinod that the matter stands settled. However, even thereafter the two accused compelled Smt. Vinod to commit suicide.
4. ASI Ramswarup was present at the turning of village Kotia on 24.11.1999 at 12.10 p.m. when Om Parkash complainant produced a written application before him, who made his endorsement thereon and sent the same to the Police Station for registration of the case, on the basis of which the present case was registered. ASI Ramswarup went to the spot and he saw the three dead-bodies lying in the house of the accused. The first dead body was of Smt. Vinod wife of Ramniwas accused, the other dead bodies were of Banti aged 5 years female child and Kalia, two years male child. The Investigating Officer prepared inquest reports in respect of the three dead bodies and also scribed three separate applications for getting the post- mortem examination on the three dead-bodies conducted and sent the three dead-bodies through Rajender to Community Health Center, Mahendergarh. The Investigating Officer correctly prepared rough site plan. The two accused were not present in the house at the time when ASI reached the house. The Investigating Officer recorded statements of PWs Parbhati Lal and Leela Ram and thereafter SI Kurda Ram reached the spot. So, he took up the investigation of this case from the ASI. SI Kurda Ram recorded Criminal Appeal No. 749 SB of 2001 5 statements of Pws Sada Nand, Bhagirath and Smt. Rishalo on 25.11.1999 and thereafter the investigation was taken up by Siri Ram Yadav, District Welfare Inspector, Narnaul.
5. On 26.11.1999 Siri Ram Yadav District Welfare Inspector went to village Kotia for investigation of this case under orders of Superintendent of Police, Narnaul. He verified the investigation. On 28.11.1999, he went to P.S. Kanina, where constable Rajender Singh produced before him three postmortem reports, three envelopes, three boxes containing viscera and three sample seals, which he took into possession vide memo attested by the witnesses. The Investigating Officer recorded statements of the witnesses. On 01.12.1999, Hoshiar Singh PW produced before him accused Ramniwas and he arrested the accused in this case. He recorded statements of PW Subhash and Constable Beer Singh. Accused Ramniwas was interrogated by the Inspector in the presence of constable Madan Lal and Karan Singh and accused Ramniwas made his disclosure statement and thereafter he got recovered the dowry articles from his house and the same were taken into possession vide memo attested by the witnesses. He also prepared rough site plan of the place of recovery. PW Subhash son of Om Parkash produced before him one marriage card and a list of kanyadan, which he took into possession vide memo attested by the witnesses. The Investigating Officer recorded the statements of various witnesses u/s 161 of the Code of Criminal Procedure, 1973 and thereafter he sent the papers to P.S. Kanina for preparation of report under Section 173 of the Cr.P.C. The SHO prepared the report u/s 173 Cr.P.C.
6. Viscera etc. were sent to the Director, FSL, Madhuban and after Criminal Appeal No. 749 SB of 2001 6 examination the Director FSL opined that 'aluminum phosphate' was detected in the viscera of all the three deceased. Scaled site plan was got prepared. After completion of the investigation, accused Ramniwas was challaned by SHO PS Kanina. However, Smt. Chandra was neither arrested nor challaned by the Police because she was found innocent.
7. After supplying the copies of the documents relied upon by the prosecution, Sh.Pardeep Kumar, the then Judicial Magistrate Ist Class, Mahendergarh, committed this case to the court of Session because offence punishable under Sections 304 B & IPC was triable by the said Court
8. After hearing learned counsel for the parties and going through the record, the learned Sessions Judge, Narnaul vide his order dated 21.4.2000 framed charges against accused Ramniwas under Sections 498A and 304-B, IPC to which he pleaded not guilty and claimed trial.
9. In order to establish its case, prosecution has examined Constable Mahesh Kumar (PW-1), HC Nafe Singh (PW-2), SI Kurda Ram (PW-3), Constable Rajender Kumar (PW-4), Om Parkash (PW-5). Thereafter, learned Public Prosecutor moved an application under Section 319 of the Code of Criminal Procedure for summoning Smt. Chandro mother of the accused Ramniwas, as an accused in this case. The trial Court after hearing the learned counsel for the parties, allowed the said application and ordered to summon Smt.Chandro as an accused vide order dated 11.10.2000. After appearance of the accused Smt.Chandro, the trial Court framed fresh charges against both the accused and they denied the charges and claimed trial. In order to prove its case, the prosecution examined PW-1 Om Parkash, PW-2 Subhash and PW-3 Rishalo, PW-4 Criminal Appeal No. 749 SB of 2001 7 Sada Nand, PW-5 Dr.Sanjay Bishnoi, Medical Officer, General Hospital, Narnaul, PW-6 Constable Rajender Singh, PW-7 Head Constable Nafe Singh, PW-8 Constable Beer Singh, PW-9 SI Kurda Ram, PW-10 Constable Mahesh Kumar, PW-11 ASI Ramsarup, PW-12 Inspector Siri Ram Yadav in support of its case.
10. The accused were examined under Section 313 of the Code of Criminal Procedure, both the accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded their innocence. However, they examined Hoshiar Singh, draftsman as DW-1 in their defence evidence and close the same after tendering certain documents.
11. The learned trial Court after appraisal of the evidence found the accused-Ram Niwas guilty under Sections 498-A and 304-B, of the IPC and sentenced him to undergo imprisonment and to pay a fine, as narrated above. However, the trial Court, acquitted accused Smt.Chandro, who was later on summoned on an application under Section 319 Cr.P.C., from the charges levelled against her.
12. Feeling dissatisfied with the above said judgment dated 12.6.2001 and order dated 13.6.2001 passed by Shri G.L.Goyal, the then learned Sessions Judge, Narnaul the appellant-Ram Niwas has preferred the present appeal.
13. I have heard submissions made by learned counsel for the appellant and have also gone through the records of the case.
14. Learned counsel for the appellant has submitted that appellant along with Smt.Chindro were put to trial for offences under Sections 304-B Criminal Appeal No. 749 SB of 2001 8 498-A and 34 of the IPC. On the same set of allegations, Smt.Chindro has been acquitted. The appellant is also entitled for the same treatment as that of Smt.Chindro and should have been acquitted by giving him benefit of doubt. The ingredient of offence under Section 304-B, of the IPC are not made out. The prosecution evidence is self-contradictory. PW-1 Om Parkash father of the deceased Vinod has stated that an amount of Rs.1,50,000/- was spent on the marriage whereas the other material witnesses PW-2 Subhash, brother of deceased and PW-3 Smt. Rishalo mother of the deceased have stated that the amount of Rs.1,00,000/- has been spent on the marriage of the deceased and the appellant. Similarly, these witnesses are discrepant regarding the amount paid to the appellant on his demand. The material evidence in the shape of letters written by the deceased to the complainant Om Parkash has been withheld. However, the letters Ex.D-1 to Ex.D-7 proved the fact that there were cordial relations between the appellant and deceased. The story of demand of dowry articles and cash is concocted one. The very fact that in respect of insurance policy, the deceased has been nominated, goes a long way that there were cordial relations between deceased Vinod and the appellant. The trial Court has not appreciated the oral evidence in its right prospective. Mere fact that Vinod deceased and her two children were found dead by consuming aluminum phosphate does not prove the ingredient of offence under Section 304-B, IPC.
15. Learned counsel for the appellant has further submitted that in order to prove the ingredient of offence under Section 304-B, IPC, the prosecution has to prove the following ingredients :- Criminal Appeal No. 749 SB of 2001 9
(i) The death of a woman is caused by burns or
bodily injury or otherwise than under a normal
circumstances.
(ii) that a death should have occurred within seven years of
her marriage.
(iii) Soon before her death, woman is subjected to
cruelty or harassment by her husband or any relative of her husband for or in connection with demand of dowry.
16. It is submitted that prosecution has been able to prove only the ingredient No.1 i.e. the death of Vinod and the minor children have taken place other than in normal circumstances. So, far as the fact that death has taken place within seven years of her marriage and that Vinod was subjected to cruelty on account of dowry articles at the hands of appellant are not proved. Continuing with the above said argument, learned counsel for the appellant has further submitted that according to the case of the accused, the marriage has taken place on 7.12.1991 whereas according to the case of the prosecution the marriage between Vinod and appellant has taken place on 7.12.1993. The prosecution has not produced the invitation card at the first instance but later on relied upon the invitation card Ex.PC. On the other hand, the appellant has placed on file the invitation card Ex.DD in which the date of marriage is shown as 7.12.1991. The death has taken place in the present case on 23.11.1999. In case the date of marriage is taken as 7.12.1991 in that case it is not proved that death has taken place within seven years of the marriage of Vinod with appellant. The defence taken by the appellant stands proved from the statement of the prosecution witnesses themselves. As per admitted facts of the parties, Banti daughter of Vinod Criminal Appeal No. 749 SB of 2001 10 was aged five years whereas Kalia son of Vinod and appellant was aged two years at the time of occurrence i.e. on 23.11.1999.
17. The postmortem report Ex.PL and Ex.PP relating to Banti and Kalia also proved their age as five years and two years respectively. The prosecution witnesses have admitted that Banti has taken birth after three years of the marriage. If three years added to the age of Banti, in that case the marriage would have taken place eight years prior to the occurrence. So, the stand taken by the appellant before the trial Court that death has taken place more than seven years after the marriage stands proved and similar arguments were raised before the trial Court but the same had been ignored on flimsy grounds.
18. It is further submitted that the prosecution witnesses have made material improvements while appearing in the Court. In case these improvements are ignored, in that case ingredients of offence under Section 304-B, IPC or harassment in connection with dowry articles are not proved.
19. It is further submitted that mother of the deceased Rishalo was not feeling well and deceased wanted to go to her parental village to look after her mother. It has also come on the record that Rishalo was not feeling well. The appellant requested Vinod not to insist to go to her parental house but to serve Chindro her mother-in-law and Vinod has committed suicide on that account after administering the aluminum phosphate to the children. It is further contended that since the prosecution has failed to prove that death of Vinod has taken place within seven years of the marriage with the appellant and as such no presumption under Sections Criminal Appeal No. 749 SB of 2001 11 113-A or 113-B of the Evidence Act, can be made. So, it is submitted that in case the Court is not inclined to acquit the appellant in that case at the most offence under Section 306 of the IPC is made out. The appellant has already undergone incarceration for a period of two years three months and sixteen days, as per conviction slip. So, prayer has been made for reduction of sentence under Section 306 IPC to the period already undergone.
20. Learned State counsel on the other hand supported the judgment and order passed by the trial Court. It is submitted that the marriage has taken place on 7.12.1993. The deceased was subjected to cruelty on account of demand of dowry articles and various specific instances have been mentioned in the testimony of the witnesses. The factum of unnatural death of Vinod has been admitted. So, in these circumstances, the ingredient of offence under Section 304-B, IPC are clearly made out against the accused/appellant.
21. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case.
22. The first and foremost point for determination is whether the death has taken place within seven years of marriage of Vinod with appellant or after seven years of that marriage. The learned trial Court, after appreciating the evidence and arguments of counsel for the appellant, as detailed in para No.20 of the judgment, reached to the conclusion that death has taken place within seven years of marriage of Vinod with appellant. The first reasoning given by the trial Court is that after the death of Vinod, the date of marriage has been mentioned as 7.12.1993 in the FIR itself. The Criminal Appeal No. 749 SB of 2001 12 other reasoning given by the trial Court is that as per post mortem examination report age of deceased has been mentioned as 23 years. In case the stand taken by the accused that marriage has taken place eight years prior to the death is taken in that case marriage would have taken place at the age of 15 years and that fact is not possible. The reasoning given by the trial Court that death has taken place within seven years of the marriage is correct and appeal to the reason. So far as the testimony of the witnesses to the effect that first child has born after three years of the marriage is concerned, the same has been duly appreciated by the trial Court. The prosecution witnesses are rustic villagers and cannot give the exact period of birth of the child. The invitation card Ex.PC also proved the fact that marriage has taken place on 7.12.1993. The invitation card Ex.DD produced by the accused has been rightly discarded by the trial Court. Hoshiar Singh (DW-1) is the real cousin brother of the accused/appellant and except his testimony regarding the date of marriage, no other evidence to prove that marriage has taken place in the month of December 1991 has been produced. Hoshiar Singh (DW-1) being the near relative of appellant has wrongly stated that marriage has taken place in the month of December, 1991. A specific suggestion was given to this witness that marriage has taken place on 7.12.1993. The remaining part of his testimony in which he has stated that the relation between the parties are cordial has been rightly discarded by the trial Court. Hoshiar Singh (DW-1) has simply come forward being the uncle's son of the appellant. So, testimony of the prosecution witnesses regarding marriage has to be accepted. The testimony about the birth of child after three years cannot be given much Criminal Appeal No. 749 SB of 2001 13 due importance. So, I have no hesitation in affirming the finding of the trial Court that the prosecution has been able to prove the fact that death has taken place within seven years of the marriage.
23. The fact that death of Vinod, Banti and Kalia has taken place by unnatural way has not been disputed. Otherwise also the testimony of the doctor proved that 'aluminum phosphate' was found in various parts of body of Vinod, Banti and Kalia.
24. So far as the arguments advanced by the counsel for the appellant that Vinod has committed suicide on account of the fact that appellant stopped her to go to her parental house to serve her mother, does not appeal to the reason. No lady would commit suicide along with two infant children on such a trifle matter. The finding of the trial Court to the effect that it is on account of persistent demand of dowry articles which led to suicide by Vinod stands affirmed. The minor improvements made by the prosecution witnesses even if ignored, would not make the case of the prosecution doubtful. The material witnesses PW-1 Om Parkash father of the deceased, PW-2 Subhash, brother of the deceased and PW-3 Rishalo, mother of the deceased have categorically given specific instance of demand of dowry articles including cash and payment thereof. PW-4 Sada Nand independent witness has also supported the testimony of PW-1-Om Parkash, PW-2 Subhash and PW-3 Rishalo. According to the testimony of these witnesses even soon before death payment of Rs.20,000/- was made by the appellant.
25. So far as the contention raised by the learned counsel for the appellant in respect of case of Smt.Chandro is concerned, the same has no Criminal Appeal No. 749 SB of 2001 14 merit as Smt.Chandro had been declared innocent during the course of investigation and was summoned only under Section 319 Cr.P.C. The culpability of Smt.Chandro was not proved beyond reasonable doubt and on that account she had been acquitted. The appellant is the husband of deceased Vinod and father of deceased Banti and Kalia. So, the persistent demand of dowry articles compelled Vinod to commit suicide and causing death of two minors. The minor discrepancies regarding amounts spent on the marriage between Om Parkash father of the deceased, PW-2 Subhash, brother of the deceased and PW-3 Rishalo, cannot be given much importance. How much amount was spent could be correctly narrated by the father. So, in fact the said discrepancy regarding amount spent on marriage is immaterial. The letter Ex.D-1 to D-7 do not disprove the case of prosecution. Normally a lady who wanted to live in her matrimonial house does not write against her husband and his family members.
26. So far as the quantum of punishment awarded by the trial Court is concerned that cannot be said to be excessive on the facts of the present case. A young lady along with her two infant children was compelled to commit suicide on account of persistent demand of dowry articles. Mere fact that appellant has nominated deceased in the insurance policy does not prove that relation between the deceased and the appellant were cordial.
27. So, in view of the above discussion, the appeal is without any merit and the same stands dismissed.
28. The accused be taken in the custody to undergo the remaining part of the sentence awarded by the trial Court. The period of detention of the accused during investigation, trial and during the pendency of the Criminal Appeal No. 749 SB of 2001 15 appeal, shall be set off against the substantive sentence of imprisonment as provided under Section 428 of the Cr.P.C. Both the sentences shall, however, be run concurrently.
29. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI )
JUDGE
November 2 , 2011
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