Punjab-Haryana High Court
Dinesh And Others vs State Of Haryana on 1 June, 2011
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No. 569 SB of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 569 SB of 1999
Date of decision 1.6.2011.
Dinesh and others
...... Appellants.
versus
State of Haryana
...... Respondent.
Present :- Mr. Gaurav Mahunta, Advocate and
Ms. Sonia Jain, Advocate for the appellants.
Mr. Amandeep Singh, AAG, Haryana.
Ms. Neha Mann, Advocate for the complainant.
Criminal Revision No.1309 of 1999
Sanjit Singh
...... Appellant.
versus
Dinesh and others
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Ms. Neha Mann, Advocate for the petitioner.
Mr. Amandeep Singh, AAG, Haryana.
Mr. Gaurav Mahunta, Advocate and
Criminal Appeal No. 569 SB of 1999 2
Ms. Sonia Jain, Advocate for the respondents.
K.C.PURI, J.
By this common order, I intend to dispose of Criminal Appeal No. 569 SB of 1999 titled as Dinesh and others versus State of Haryana and Criminal Revision No.1309 of 1999 titled as Sanjit Singh versus Dinesh and others, as both these cases arose out of the same judgment and incident. For convenience facts are being taken from Criminal Appeal No. 569 SB of 1999.
2. Appellants have directed the present appeal against the judgment dated 2.6.1999 and order dated 5.6.1999 passed by learned Sessions Judge, Sonipat vide which accused-appellants Dinesh, Nafe Singh and Ompati have been convicted under Sections 306 read with section 34 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 `.5,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of one year each. The trial Court, however, acquitted accused Sunita Kumari and Sita Rani of the charges levelled against them.
3. To unfold the prosecution case, in nut-shell, the facts as ascertained from the judicial record, particularly from statements of PW 5 Sanjit Singh-brother of Babita and PW 6 Harpal Singh-father of Babita, are that Babita was married to Dinesh accused on 25.12.1992. Sufficient dowry was given by Harpal Singh in the marriage to his daughter, but none of the accused were satisfied from the dowry. They started ill-treating her. Whenever, Babita used to visit to her parents she used to tell the Criminal Appeal No. 569 SB of 1999 3 woeful tale of her torture, harassment and cruelty. Accused raised demand of a tractor. Harpal Singh purchased a tractor for Nafe Singh bearing registration No. HR-06/8643 from Kali Ram son of Ram Chander of village Pawti for a sum of Rs.1,80,000/-. Out of that amount Rs.1,00,000/- were paid by the accused and Rs.80,000/- were paid by Harpal Singh father of Babita (since deceased). When Harpal Singh demanded Rs.80,000/- back, on that score, harassment of Babita increased. Accused told Babita that since her father had not given dowry at the time of marriage or even thereafter, so, Rs.80,000/- be adjusted against the dowry. This fact was brought to the notice of Sanjit, Harpal etc by deceased. 10 months prior to death of Babita, Sanjit etc. went in the shape of Panchayat at the house of accused and persuaded the accused not to harass Babita and they assured to behave properly. But in spite of that, ill-treatment did not come to an end. About 10-12 days prior to death of Babita, Sanjit PW5 again visited house of accused and he requested that Babita be sent with him, but accused declined to send her with him. He noticed certain marks of beating on her person. Accused told Sanjit Singh that he should not tell his parents that Babita was beaten and there were certain marks of violence on her person. On 6.6.97 parents of Babita came to know that Babita had died. Then Sanjit and Harpal went to village Kasandi. They found dead-body of Babita. Sanjit left his father Harpal Singh in village Kasandi and he himself went to police station and submitted application Ex.PG to the police i.e. to Sub Inspector Parkash Chand, on which DDR No.12, dated 6.6.1997 was recorded, which is Ex.PH. SI Parkash Chand dispatched HC Ram Kumar for getting dead body of Babita post mortem. On 9.6.1997, SI Parkash Chand went to Criminal Appeal No. 569 SB of 1999 4 hospital, moved application Ex.PJ for obtaining opinion of the doctor regarding cause of death of Babita. Then he registered case against the accused under offence 304-B, 306 read with section 34 IPC, reached at the spot, inspected the same, prepared rough site-plan Ex.PK, recorded statements of witnesses. On 11.6.1997, Badlu Ram came at police station and made statement to him. On 24.6.1997, accused Dinesh and Nafe Singh were arrested. On 4.7.1997 accused Ompati was arrested and on 19.8.1997, arrest of Kumari Sunita and Sita were effected. On 20.8.1997, he recorded statement of Diwan Singh H.C who had taken special report and also recorded statement of H.C Ram Kumar, who got conducted autopsy of the dead body. On the same day, statements of Siri Kishan, Balbir Singh and Inderpal Constable were also recorded and after completion of investigation, accused were challaned.
4. Documents relied upon by prosecution under Section 173 Cr.P.C were supplied to the accused. The trial Court framed charges under Sections 304-B, 34 and 306 IPC against the accused. They pleaded not guilty and claimed to be tried.
5. In order to establish its case, the prosecution examined Dr.S.S.Gupta (PW-1), Narender Singh (PW-2), HC Diwan Singh (PW-3), HC Ram Kumar (PW-4), Sanjit Singh (PW-5), Har Pal Singh (PW-6), Duli Chand (PW-7), SI Parkash Chand (PW-8) and closed the prosecution evidence.
6. The accused were examined under Section 313 Cr.P.C., they denied the prosecution version and pleaded their innocence. However, the accused examined in their defence Gopi Chand, Medical Record Clerk Criminal Appeal No. 569 SB of 1999 5 (DW-1), Dr.V.S.Malik (DW-2), Daya Nand Arora (DW-3), Harbans Lal (DW-4) and Dr.Tajender Talwar (DW-5) and closed their evidence.
7. The learned Sessions Judge, Sonipat, after hearing the learned counsel for the parties, convicted and sentenced the accused/appellant vide judgment dated 2.6.1999 and order dated 5.6.1999, as aforesaid. However, Sunita Kumari and Sita Rani accused were acquitted vide said judgment.
8. Feeling dissatisfied with the aforesaid judgment and order, the appellants have preferred the present appeal.
9. Complainant-Sanjit Singh has preferred revision petition titled as Sanjit Singh versus Dinesh and others for convicting the accused- appellants under Section 304-B, IPC and for enhancement of the sentence.
10. I have heard learned counsel for the appellants and learned Assistant Advocate General for the State of Punjab and counsel for the complainant/revisionist and have also carefully perused the case file.
11. Learned counsel for the appellants has submitted that the prosecution has miserably failed to prove the necessary ingredients of offence under Section 306 IPC against any of the appellants. To prove the ingredient of offence under Section 306 IPC, the prosecution is required to prove that there is immediate abatement/instigation to the deceased for committing suicide. The alleged demand for purchase of tractor, according to the prosecution was two years back and that cannot be said to be a cause of death of Babita. As per prosecution, Rs.1,00,000/- was paid by the accused whereas Rs.80,000/- was stated to be paid by the complainant for purchase of tractor bearing registration No. HR-06/8643 from Kali Ram. However, the said tractor was not in the name of any of the appellants. It is Criminal Appeal No. 569 SB of 1999 6 admitted case of the parties that no dowry was given at the time of marriage. So, in these circumstances, the demand of money to purchase tractor is not proved.
12. Learned counsel for the appellants has further submitted that so far as case of appellants-Nafe Singh and Ompati-mother-in-law are concerned, there are general allegations against them. In a criminal case, the accused cannot be convicted on the basis of general allegations. Similarly situated accused Sunita Kumari and Sita Rani, as that of appellants Nafe Singh and Ompati-herein, have been acquitted by the trial Court.
13. Learned counsel for the appellants has submitted that the trial Court has observed in paragraph No.31 of the judgment that the allegations regarding demand of dowry are shaky. So, in the presence of this finding, the appellants cannot be convicted for offence under Section 306 IPC.
14. Learned counsel for the appellants has further submitted that the prosecution has even utterly failed to prove the fact that the death has taken place due to poison. The report of Forensic Science Laboratory, Madhuban Ex.PB cannot be taken as gospel truth in which it is mentioned that small and large intestines, stomach, lungs, liver, spleen and kidney and heart of the deceased contained phosphide (celphos). The medical evidence itself discarded the theory of death of Babita by taking aluminum phosphide (Celphos). Dr.Tajender Talwar (DW-5) has stated that on 5.6.1997 Babita was admitted in the hospital where he was working Registrar. As per history, Ex.DM Babita was patient of piogenic managitis and there was no symptoms of poisoning. Dr.V.S.Malik (DW-2), Criminal Appeal No. 569 SB of 1999 7 who attended Babita at the first instance on 4.6.1997 has stated that Babita was suffering from piogenic managitis. He has further submitted that the possibility of cerebral malaria were also there but there were no symptom of poisoning.
15. As per authority Anita vs. State of Haryana 2010(3) R.C.R. (Criminal) 112, the report of Forensic Science Laboratory cannot over weight the other medical evidence.
16. Dr.V.S.Malik (DW-2) and Dr.Tajender Talwar (DW-5) were the witnesses for the prosecution but they have not been examined by the prosecution and appellants had to examine these witnesses as defence witnesses to unfold the prosecution story that Babita has not died due to poisonous substance. Further elaborating the said argument, Mr. Mahunta has submitted that Alum Phitkari, book on medical jurisprudence, the following should be the symptoms :-
"Symptoms are burning pain in the mouth, throat and stomach, vomiting mixed with blood, dyspnoea, rapid pulse, subnormal temperature, loss of co-ordination, convulsions of a clonic nature and death. In the solid form, it acts as a corrosive in the mouth and throat as it precipitates proteins."
17. Appearance in the post-mortem examination as per said book should be as under :-
"The tongue, mouth and oesophagus are oedematous and corroded. The mucous membrane of the stomach is corrugated, loosened or hardened and is stained red or velvety. The intestines are inflamed."
It is submitted that all these symptoms were missing."
18. On the other hand, there is a definite opinion given by the Criminal Appeal No. 569 SB of 1999 8 Dr.V.S.Malik (DW-2) and Dr.Tajender Talwar (DW-5) that the deceased was suffering from managitis.
Managitis has been defined as under :-
"It is the inflammation of meninges. Viral managitis is relatively mild than bacterial. Symptoms including vomiting, headache and impaired mental function. In meningococcal meningities the main symptom develops very quickly within hours. It is followed by drowsiness and loss of consciousness."
19. These symptoms were found and as such the prosecution has failed to prove the death of Babita due to poisonous substance. The case of the prosecution dashes to ground on these grounds.
20. Lastly, the learned counsel for the appellants has submitted that in case the Court is not inclined to accept the prayer for any of the appellants for acquittal, in that case, the punishment of ten years is very harsh. The appellants are facing trial since 1997 i.e. for the last about 14 years. So, prayer has been made for taking a lenient view in respect of quantum of sentence.
21. Counsel for the State has supported the judgment of the trial Court.
22. I have carefully considered the rival contentions raised by the learned counsel for the parties and have gone through the records of the case with their able assistance.
23. So far as the attack of the learned counsel for the appellants on the prosecution story that it has failed to prove the fact that death of Babita has taken place due to phosphide (celphos) is not proved is concerned, that submission is without any substance. The testimony of Criminal Appeal No. 569 SB of 1999 9 Dr.S.S.Gupta (PW-1), Medical Officer, General Hospital, Gohana is relevant in this regard. This witness has stated that after Forensic Science Laboratory report Ex.PB, the cause of death, in his opinion, is aluminum phosphide poisoning. The report of Chemical Examiner Ex.PB is also relevant. As per this report. aluminum phosphide poisoning was detected in stomach, small and large guts, lungs, liver, spleen kidneys and heart. So, this fact clearly shows that all the major organs of deceased Babita contained aluminum phosphide poisoning.
24. So far as the reliance of counsel for the appellants on the testimony of Dr.V.S.Malik (DW-2) is concerned, this witness has stated that Babita wife of Dinesh-appellant was admitted in his hospital on 4.6.1997 and was discharged on 5.6.1997 and she was referred to Medical College Hospital, Rohtak. She was suffering from piogenic meningities and second possibility was of cerebral malaria. This witness has not advised the patient for any test determination whether she was having any symptom of poisonous substance or not. Similarly, the testimony of Dr.Tejinder Singh (DW-5) is to the effect that Babita was admitted in the MCH, Rohtak on 5.6.1997 and expired on 6.6.1997 and she was having history of piogenic meningities and there was no symptoms of poisoning. In the cross- examination this witness has stated that Babita was examined by him. So, his testimony is of secondary nature. Moreover, no test to determine the factum of poison was conducted in the said hospital also. In the cross- examination, this witness has stated that it was not impossible that it was a case of poisoning.
25. So far as the reliance of learned counsel for the appellants on Criminal Appeal No. 569 SB of 1999 10 Medical Jurisprudence, as detailed above, and in authority of Anita's case (supra) is concerned that authority does not help the case of the appellants. In the later authority, it has been observed that on the facts, the FSL report in that case was not properly made and the Division Bench of this Court directed the higher officers of Forensic Science Laboratory to pin point the negligence/carelessness of the erring official. In that case, the death was due to aluminium phosphide poisoning. The learned Sessions Judge convicted the accused holding that it was a case of murder. The appeal by the Division Bench was dismissed. So, that authority is not helpful to the appellants in any manner. It cannot be said that it is not a case of aluminium phosphide poisoning. The major limb as per report of the Chemical Examiner, contained aluminium phosphide. So, the unnatural death stands proved in the present case beyond reasonable doubt.
26. So far as the argument raised by learned counsel for the appellants to the effect that in paragraph No.31 of the judgment, it has been held by the trial Court that the demand of dowry is shaky and on that account the prosecution story is doubtful is concerned, that submission is without any substance. The trial Court has appreciated the evidence in right prospective. Since the factum of demand of dowry was not proved and as such the trial Court returned that findings against the prosecution and the accused were acquitted under Section 304-B, IPC. That findings, on re- appreciation of the evidence, does not call for any interference and the same stands affirmed.
27. So far as the revision petition filed by the complainant for convicting the accused under Section 304-B, IPC and for enhancement of Criminal Appeal No. 569 SB of 1999 11 sentence is concerned, in view of the above said discussion, the revision petition is without any merit and as such the same stands dismissed.
28. There are two set of accused in the present case. One is Dinesh- accused, husband of the deceased and another set of accused is Nafe Singh and Ompati father-in-law and mother-in-law respectively of deceased. Case of each set of accused is being taken up separately.
29. So far as accused Dinesh is concerned, he is the husband and would have been benefitted by the demand of money in connection with the purchase of tractor. Otherwise also, there are allegations against him that he used to beat Babita. So, in these circumstances, the ingredient of offence under Section 306 IPC stands proved against him beyond reasonable doubt. So, the conviction recorded by the trial Court in respect of offence under Section 306 IPC against him stands affirmed.
30. So far as the other set of accused-appellants Nafe Singh father- in-law and Ompati mother-in-law is concerned, there is no specific demand of dowry nor any act of cruelty against them. Accused Sunita Kumari and Sita Rani were arrayed as accused and against them also there were general allegations of cruelty and those accused have been acquitted by the trial Court. The case of accused-appellants Nafe Singh and Ompati is not distinguishable to that of Sunita Kumari and Sita Rani, who have been acquitted.
31. In authority Ramji Lal vs. State of Punjab 2010(4) R.C.R. (Criminal) 924, the accused was acquitted where there is no allegation of any instigation, provocation or positive act on the part of the accused regarding abating the woman to commit suicide.
Criminal Appeal No. 569 SB of 1999 12
32. Even Hon'ble Apex Court in authority Mankamma vs. State of Kerala 2010(1) R.C.R. (Criminal) 227, acquitted the mother-in-law against whom there were allegations of ill-treatment. The Hon'ble Apex Court has held that in the absence of what was the ill-treatment, how often she has ill-treated by the mother-in-law has remained mystery and in these circumstances, conviction of mother-in-law under Section 306 IPC cannot be upheld.
33. So, keeping in view the above said circumstances, I have no hesitation in holding that the prosecution has failed to prove the ingredient of offence under Section 306 IPC against Nafe Singh and Ompati appellants and consequently the appeal qua them stands accepted and the judgment of conviction qua them stands set aside and they stand acquitted of the charges levelled against them by giving them benefit of doubt.
34. So far as the sentence awarded to Dinesh appellant is concerned he has been ordered to undergo incarceration for a period of ten years and to pay a fine of `.5,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year. The occurrence in the present case relates to the month of June 1997 i.e. about fourteen years ago and since then Dinesh has undergone mental pain and agony since then. So, keeping in view the totality of the circumstances, his sentence under Section 306 IPC stands reduced to rigorous imprisonment for a period of five years instead of ten years awarded by the trial Court. However, the sentence of fine stands maintained.
Criminal Appeal No. 569 SB of 1999 13
35. The appeal stands partly accepted to the extent mentioned above.
36. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI ) JUDGE June 01, 2011 sv