Punjab-Haryana High Court
Tahir vs State Of Haryana on 12 July, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 519-SB of 2000 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 519-SB of 2000
Date of Decision: 12.7.2011
Tahir
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Vikas Kumar, Advocate
for the appellant.
Mr. Anoop Sharma, Assistant Advocate
General, Haryana, for the respondent.
Kanwaljit Singh Ahluwalia, J.
Appellant Tahir was tried along with his mother Nafisa in the case arising out of FIR No. 238 dated 7.4.99 registered at Police Station NIT Faridabad, under Section 304B IPC. The Court of Additional Sessions Judge (I), Faridabad, vide its judgment dated 15.5.2000, acquitted Nafisa and held appellant Tahir guilty for the offence under Section 304-B IPC. Vide a separate order dated 19.5.2000, appellant Tahir was sentenced to undergo rigorous imprisonment for a period of seven years for causing death of his wife Afroz. The finding whereby appellant Tahir was convicted and Nafisa was acquitted is in the concluding portion of the judgment and the same reads as under:-
"32. As a result of my aforesaid discussion, I hold that the prosecution has proved beyond Criminal Appeal No. 519-SB of 2000 2 reasonable doubts that Afroz died an unnatural death on 6.4.1999 well within seven years of marriage with the accused Tahir and it is shown that soon before this unnatural death this accused had been subjecting her to harassment by persistently raising the demand of a cash amount of Rs.10,000/-. This accused has, therefore, to be held guilty under Section 304-B IPC. I hold him guilty accordingly. However, benefit of doubt has to be given to the other accused Nafisa, inasmuch as, she was residing separately from the deceased and the accused Tahir for the last about 1½ months prior to the death of the deceased and the allegations with regard to harassment of the deceased against this accused in connection with the demand of Rs.10,000/- are not direct. I, therefore, extend benefit of doubt to this accused and order her acquittal hereby..."
This appeal is directed against the above said findings contained in the judgment of conviction and order of sentence pronounced by the Court of Additional Sessions Judge, Faridabad. On 6.4.1999, Afroz died within a period of seven years of her marriage due to burn injuries in her matrimonial home. Deceased Afroz was daughter of PW.5 Saliman. She was married with appellant Tahir about 1½ years before the occurrence at Faridabad.
Rattan Deep Bali, Assistant Sub Inspector, on 6.4.1999 was Criminal Appeal No. 519-SB of 2000 3 the Incharge of Police Post Sector 4, Faridabad. On the said date, he received a ruqa Ex.PH at about 10.00 P.M. from B.K. Hospital, Faridabad. It was stated in the ruqa Ex.PH by the Medical Officer that on 6.4.1999 Tahir, present appellant, aged 22 years, was admitted in the hospital at about 5.35 P.M. On the receipt of ruqa, on the same day, Rattan Deep Bali, Assistant Sub Inspector, submitted an application Ex.PI before the Medical Officer, asking as to whether Tahir is fit to make a statement or not. On the opinion Ex.PI/1 given by the doctor, that appellant Tahir was fit to make the statement, his statement Ex.PJ was recorded. In his statement, appellant Tahir stated that he was a tenant in House No. E-286, S.G.M. Nagar, Faridabad and was plying a hired Auto rickshaw. He further stated that he was married one year ago with Afroz, no issue has been born from the wedlock and he was residing separately from his parents. Due to accident, he had suffered an injury in left ankle and therefore, was unable to ply three wheeler. After taking his afternoon meals he and his wife had slept. His wife, after asking him to cook rice had gone to the kitchen. He saw smoke coming from the kitchen and found that his wife had caught fire. He had made an attempt to douse the fire and had suffered the burn injuries.
However, in the present case, FIR Ex.PC/2 has been registered on the statement of PW.5 Saliman, mother of deceased Afroz.
It has been stated in the proceedings carried out by the police that after appellant Tahir had made a statement PW.5 Saliman was not able to make a statement as she was in perplexed condition. However, on the next day i.e. 7.4.1999 at about 11.30 A.M. at B.K. Hospital, Criminal Appeal No. 519-SB of 2000 4 Faridabad, she made a statement on the basis of which FIR Ex.PC/2 was registered. The statement of Saliman, when translated into English, reads as under:-
"Stated that I am residing at the above address along with my children. I have two sons and two daughters and eldest daughter is Afroz then sons Firoz, Kadar Khan and the youngest is daughter Nazrana. I had married my eldest daughter Afroz with Tahir s/o Liyakat R/o Chhata Distt. Mathura (U.P) about one year ago in Sector 7. I had given sufficient dowry as per my capacity. My husband expired some 7 months ago. After the marriage my daughter Afroz had gone to her in-laws five times. My son-in-law Tahir being an unemployed had been demanding cash amount of ` 10,000 for opening a cloth shop. I and my father-in-law Noor Mohd. expressed our inability to pay the aforesaid amount as we are poor person. Whenever my daughter Afroz came to meet me, every time she complained of the beating and harassment given to her by my son-in-law. Similarly, she also made complaint to me and my father-in-law regarding the harassment caused to her by her mother-in-law Nafisa for not giving cash of `10,000. Now-a-days, my son-in-law who was living in a rented House No. E-286, S.G.M. Nagar was residing with my daughter for the last Criminal Appeal No. 519-SB of 2000 5 about 2½ months separately from his parents and he was plying three wheeler on hire. About one month ago my son-in-law had met with an accident who raised the above demand i.e. cash of `10,000 again on which I sent cash of ` 400 to him through my son Firoz about 15 days ago. Yesterday, on 6.4.99 at about 6.00 P.M. Father's sister's husband of my son-in-law came to my house and told that my daughter Afroz had committed suicide by setting herself on fire after sprinkling kerosene and Tahir had also sustained some burn injuries while extinguishing the fire. Thereafter, I along with my father-in-law, my son Firoz and some neighbourers reached at the room of my son-in-law. I saw that dead body of my daughter Afroz was lying in burnt condition on the bed having its face downward. I have satisfied myself with regard to this incident. My daughter has committed suicide by setting herself on fire after sprinkling kerosene fed up with the beatings and harassment caused by my son-in-law and his mother Nafisa who were demanding a cash of Rs.10,000/-. Legal action be taken against both of them. R.T.I. Saliman..."
The above said FIR was investigated and the report under Section 173 Cr.P.C. was submitted. The case was committed and was entrusted to the Court of Additional Sessions Judge (I), Faridabad. Criminal Appeal No. 519-SB of 2000 6 Appellant Tahir and his mother Nafisa, were charged for the offence under Section 304-B IPC. The charge stated that on 6.4.1999 in the area of NIT Faridabad, Afroz died an unnatural death within seven years of marriage as she was subjected to cruelty. Thus, the appellant and his mother Nafisa had committed an offence punishable under Section 304- B IPC. The accused pleaded not guilty and claimed trial.
Dr. S.K. Mittal, PW.7 on 7.4.1999 at 2.15 P.M. along with Dr. P.S. Parihar and Dr. P.S. Yadav had conducted autopsy on the dead body of Afroz. As per the clinical observation, rigour mortis was present on all the four limbs. Burns were present on whole of her body except soles of the feet. Hair were burnt. There was deglowing of the skin of both the hands. The body was charred at a few places due to burns. The stomach contained semi-digested food and all the organs were congested. As per the opinion of the Board of Doctors, the cause of death was shock as a result of extensive burns which were ante mortem in nature and was sufficient to cause death in the ordinary course of nature. It was further opined that the duration between the injuries and death was a few hours and between death and post mortem examination was within 24 hours. This witness was not cross- examined.
PW.5 Saliman, mother of deceased Afroz, while appearing in the witness box, reiterated as to what was stated in the FIR. She stated in categoric terms that after marriage her daughter came to her house on 4-5 occasions and stated that her husband Tahir and his mother Nafisa were harassing her by demanding a sum of `10,000 so that Tahir could start some business of selling clothes. She had expressed Criminal Appeal No. 519-SB of 2000 7 helplessness in this regard as her husband had already died. Her daughter also told her that she was subjected to torture by the accused. She was also threatened that if the demand was not fulfilled she would be killed. She further stated that Tahir was a Driver of three wheeler and had met with an accident and thereafter he again made a demand of `10,000. She could only arrange `400 and the same was sent to her son-in-law through Feroz, son of the witness. On 6.4.1999 she came to know that her daughter had set herself on fire and had died. She made her statement to the police on 7.4.1999 at about 12 Noon at the Police Post.
PW.6 Nawab Khan stated that Afroz, since deceased, was a daughter of his real brother-in-law. He corroborated the testimony of PW.5 Saliman.
PW.1 Hari Chand, Head Constable and PW.2 Mohkam Singh, Constable, have placed on record their duly sworn affidavits Ex.PA and Ex.PB, respectively, to prove link evidence. PW.3 Chaman Lal, Assistant Sub Inspector, stated that on 7.4.1999 he was posted in Police Station NIT, Faridabad. He had received a statement Ex.PC of PW.5 Saliman from Rattan Deep Bali, Assistant Sub Inspector, through a Constable for registration of the case and on the receipt of the said statement, he had recorded a formal FIR Ex.PC/2. PW.4 Manoj Kumar, Constable, stated that he had prepared a scaled site plan Ex.PD of the spot. PW.8 Amar Singh, Inspector, stated that he had prepared report under Section 173 Cr.P.C. PW.9 Rattan Deep Bali, Sub Inspector/Investigating Officer, proved various facets of the investigation. Thereafter, the statement of accused was recorded under Criminal Appeal No. 519-SB of 2000 8 Section 313 Cr.P.C. All the incriminating evidence was put to the appellant. He denied the same and gave the following version:-
"...At no stage I and my co-accused ever harassed the deceased in connection with the demands of dowry or otherwise. This case has been falsely planted upon us by Saliman PW-5 with a view to extract money from us. At the time of incident, I and my co-accused were residing separately..."
No witness was examined in defence. In the present case, the following ingredients of Section 304-B IPC have not been disputed by learned counsel for the appellant during the course of arguments.
1) Afroz was legally wedded wife of appellant Tahir.
2) She was married 1½ years before the occurrence.
3) The death had taken place within seven years of the marriage and thus Section 113 B of the Indian Evidence Act is attracted.
However, Mr. Vikas Kumar, Advocate, appearing for the appellant has disputed another vital ingredient of the offence under Section 304-B IPC. According to him, the prosecution has miserably failed to prove that the death of Afroz was a result of harassment, torture or cruelty inflicted by the accused in connection with the demand of dowry. It has been vehemently contended that it has come in the evidence that Tahir himself was unemployed and due to accident he was not able to ply the Auto Rickshaw. Therefore, it is contended that the deceased could not reconcile to the poverty and misery which fell upon the family. It has been submitted that the prosecution has failed to Criminal Appeal No. 519-SB of 2000 9 lead any evidence that before the accident in which Tahir had suffered injury on the ankle, any complaint was made by the deceased to her mother. It has been canvassed before me that the prosecution has not led any evidence to prove that either any protest was made by the family of deceased to any authority or any Panchayat was convened for resolution of the dispute. Learned counsel for the appellant has submitted that these allegations regarding the demand of dowry itself surfaced after the death of Afroz and furthermore on the date of occurrence also PW.5 Saliman had not come forward to make any statement to the police on the false pretext that she was perplexed.
Another argument advanced by learned counsel for the appellant is that even if the prosecution case is taken at its face value, the allegation against the appellant is that he has been demanding Rs.10,000/- for commencing business for selling clothes. According to the learned counsel, this will not constitute demand of dowry as the deceased was only seeking financial help from his relation i.e. mother- in-law. In support of his contention, reliance has been placed upon the judgment rendered in Appasaheb & Another v. State of Maharashtra 2007(1) Apex Court Judgments 290 (S.C.). This Court in Makhan Singh v. State of Punjab (Criminal Appeal No. 697-SB of 1997 decided on 29.1.2010) considered the question whether seeking a financial help will constitute offence under Section 304-B IPC or not. Having noticed the judgment rendered in Appasaheb's case (supra), in Makhan Singh's cases (supra), this Court has observed as under:-
"...Another judgment cited for the consideration of this Court is 'Appasaheb and another v. State of Criminal Appeal No. 519-SB of 2000 10 Maharashtra' 2007(1) RCR (Criminal) 747 which says that where husband has asked his wife to bring Rs.1000/1200/- from parents for domestic expense on account that husband has no money, same will not constitute demand of dowry. Another judgment relied by the counsel was rendered in 'Bhim Singh and others v. State of Haryana and others' 2009 (2) RCR (Criminal) 558 which held that demand of Rs.1.50 lakh by in-laws for construction of house will not fall within the definition of dowry.
Section 304-B IPC reads as under:
"304 B. Dowry death (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.
Explanation- For the purpose of this sub-
section, "dowry" shall have the same Criminal Appeal No. 519-SB of 2000 11 meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
A perusal of the explanation added with the section reveals that meaning of dowry is to be construed as has been defined in section 2 of the Dowry Prohibition Act, 1961. Section 2 of the Dowry Prohibition Act, 1961 reads as under:
"2. Definition of dowry - In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly -
(a) by one party to a marriage to the
other party to the marriage; or
(b) by the parent of either party to a
marriage or by any other person, to either party to the marriage or to any other person.
at or before [or any time after the marriage] [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to Criminal Appeal No. 519-SB of 2000 12 whom the Muslim Personal Law (Shariat) applies.
Explanation II - The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860)."
What is material to be noticed is that by Act No.43 of 1986, in section 2 of the Dowry Prohibition Act, 1961, words "or any time after the marriage" were added. Therefore, the scope of this section was broadened. Giving of any property/valuable security now is not restricted "at or before the marriage". In order to attract section 304- B IPC, following ingredients are required to be proved by the prosecution:
(1) The death of woman had occurred in the circumstances other than normal.
(2) Such death occurred within seven years of her marriage.
(3) Soon before her death, the woman was subjected to cruelty or harassment by her husband or any relative of her husband.
(4) Such cruelty or harassment was in connection with the demand of dowry.
Criminal Appeal No. 519-SB of 2000 13This legal position was considered by Hon'ble Apex Court in 'Prem Kanwar v. State of Rajasthan' 2009 (3) SCC 726 and it was held as under:
"The offence alleged against the accused is under Section 304-B IPC which makes "demand of dowry" itself punishable.
Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry"
under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence.
That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to Criminal Appeal No. 519-SB of 2000 14 demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case.
The interpretation that the accused seek, that conviction can only be if there is agreement for dowry, is misconceived.
This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry."
It is further held in Prem Kanwar's case (supra) that no straight jacket formula can be laid down as to what would constitute a period of soon before the occurrence. The following words of the above said judgment are important to be noticed:
"Suffice, however, to indicate that the expression 'soon before' would normally Criminal Appeal No. 519-SB of 2000 15 imply that the interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence."
In 'Pawan Kumar v. State of Haryana' 1998 (3) SCC 309, it was held that in cases of dowry deaths and suicides, circumstantial evidence plays an important role and inference can be drawn on the basis of such evidence. The evidence could be either direct or indirect. In Pawan Kumar's case (supra), effect of amendment in Dowry Prohibition Act was considered".
It will be pertinent to notice here that recently the view taken by this court in Makhan Singh's cases (supra), has been approved in Bachni Devi and Another v. State of Haryana through Secretary, Home Department 2011(1) Criminal Court Cases 652 (S.C) wherein considering the entire case law, their Lordships have observed as under:-
"16. While dealing with the term `dowry' in Criminal Appeal No. 519-SB of 2000 16 Section 304B IPC, this Court in the case of Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, 2005(1) Apex Court Judgments 448 (S.C.):2005 (1) Criminal Court Cases 935 (S.C.):2005(2) SCC 388, held as under:
"14. The word "dowry" in Section 304-B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". As was observed in the said case "suicidal death"
of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused... or occurs otherwise than under normal circumstances" as expressed in Section 304-B IPC".
In Bachni Devi's case (supra) the judgment rendered in Appasaheb's case (supra), was not relied upon as it was held that the judgment rendered in Appasaheb's case (supra), cannot be read to be Criminal Appeal No. 519-SB of 2000 17 laying down a proposition of law that a demand of money or some property or valuable security on account of some business or financial help will not constitute demand of dowry.
Thus, the second argument advanced by learned counsel for the appellant stands rejected in view of the enunciation of law made in Makhan Singh's and Bachni Devi's cases (supra). So far as the first argument advanced by learned counsel for the appellant that earlier to the present occurrence, neither any protest was made nor any Panchayat was convened, therefore, the allegations has surfaced for the first time after the occurrence is concerned, the same is liable to be rejected as every parent try to save the marriage of their daughter. Therefore, this argument advanced by learned counsel for the appellant is not sufficient to discard the testimony of PW.5 Saliman which has been duly corroborated by PW.6 Nawab Khan. Furthermore, it has come in their evidence that the deceased was constantly tortured and harassed by the present appellant as he was persisting with the demand of `10,000-.
Thus, taking the totality of circumstances into consideration, there is no merit in the present appeal and the same is dismissed.
(Kanwaljit Singh Ahluwalia) Judge July 12, 2011 "DK"