Punjab-Haryana High Court
Bhupinder Kumar And Another vs State Of Punjab on 29 August, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Crl.Appeal No.984-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Appeal No.984-SB of 2003
Date of Decision:29.08.2013
Bhupinder Kumar and another .....Appellants
Versus
State of Punjab .....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.M.S.Rakkar, Senior Advocate,
with Mr.Jagdeep Singh, Advocate, for the appellants.
Mr.K.S.Aulakh, Assistant Advocate General, Punjab.
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MEHINDER SINGH SULLAR , J.(oral) Concisely, the facts & evidence, unfolded during the course of trial, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant appeal and emanating from the record, as claimed by the prosecution are that, the marriage of appellant-Bhupinder Kumar alias Bhupi was solemnized on 23.01.1998 with Alka, younger daughter of complainant-Kanta Devi (PW2)(for brevity "the complainant"). After solemnization of the marriage, they resided together and cohabited as a husband & wife and one son was born out of their said wedlock. According to the complainant that, some time after the marriage, appellants-Bhupinder Kumar(husband), Savitri Devi(mother-in-law), Anita wife of Narinder Kumar and Sunita Kumari wife of Harish Kumar(sister-in-laws) of the deceased, started taunting, insulting and beating her for bringing insufficient dowry. They did not allow Alka to visit her parental house. Even she was harassed and tortured in the presence of the complainant. Alka used to narrate her tale of woe to her. Three/four months prior to the Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 2 present occurrence, Bhupinder Kumar was stated to have left Alka at her parental house at Sunam and proclaimed that he will not take her back. After two months, he along with his mother's sister came to Sunam and requested to send Alka to her matrimonial home at their responsibility. Consequently, he took Alka in his house on the responsibility of his mother's sister Mohan Devi. However, the accused did not mend their ways and continued treating her with cruelty. Alka had narrated the harassment given by the accused to her brother Rakesh Kumar and requested him to take back, but the accused did not allow her to accompany Rakesh Kumar to Sunam.
2. The story of the prosecution is that, one day the complainant was telephonically called by appellant-Bhupinder Kumar on the false pretext of illness of his son. She came to his house and noticed that he was armed with a knife. He and his mother-Savitri Devi were quarreling with Alka. He threatened Alka with dire consequences to kill her with the knife. The complainant made them understand, but in vain and they started insulting her as well. A Biradri Panchayat was convened at the instance of the complainant and the matter was pacified thereafter.
3. The version of the prosecution further proceeds that on 18.06.2000 at 2.30 PM, the complainant received a telephonic message that Alka has been murdered by the accused. They reached the house of the accused and noticed that the dead-body of Alka was lying on the 2nd floor(Chaubara) having blue marks on her neck. She suspected that Bhupinder Kumar(husband), Savitri Devi(mother-in-law), Anita and Sunita Kumari(sister-in-laws) have murdered Alka by strangulating her. Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 3 Consequently, she reported the matter to the police and made her statement(Ex.PA), which was attested by ASI Karam Chand(PW-5). He made his endorsement(Ex.PA/1) and sent the same to the Police Station for registration of the case, on the basis of which, formal FIR(Ex.PA/2) was recorded by ASI Sakatar Singh.
4. Levelling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that her daughter Alka died unnatural dead within a period of seven years of the marriage in her matrimonial home. She was subjected to cruelty and harassment by her husband and other pointed relatives in connection with and on account of demand of dowry. Thus, they have committed the offences of dowry death. In the background of these allegations and in the wake of statement(Ex.PA) of the complainant, the present criminal case was registered against appellants Bhupinder Kumar(husband), Savitri Devi (mother-in-law) and Anita & Sunita Kumari, acquitted accused(sister-in- laws), vide FIR No.465 dated 18.06.2000, on accusation of having committed the offences punishable under Sections 304-B and 34 IPC, by the police of Police Station Sadar Patiala, in the manner depicted here-in- above.
5. After completion of the investigation, the final police report (challan) was submitted by the police against the appellants and acquitted accused, to face the trial for the offences in question.
6. Having completed all the codal formalities, they were charge-sheeted for the commission of an offence punishable under Section 304-B IPC by the trial Court. As, they did not plead guilty and Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 4 claimed trial, therefore, the case was slated for evidence of the prosecution.
7. The prosecution in order to substantiate the charges framed against the accused, examined PW2-complainant Kanta Devi, who has deposed in the following terms:-
"My husband is a heart patient. I have one son namely Rakesh Kumar and two daughters namely Alka and Rekha. About 3½ years ago my daughter Alka was got married with accused Bhupinder Kumar present today in the Court. My daughter was also blessed with a son and he was about 1¼ years old at the time of occurrence. Soon after the marriage Bhupinder Kumar my son-in-law and her mother-in-law Savitri Devi, sister-in-law Anita and Sunita started torturing and taunting her for bringing insufficient dowry. They also started beating and harassing her for bringing less dowry. Savitri Devi and Bhupinder Kumar are present today in the Court. However, Anita and Sunita are not present today in the Court. All the accused were not allowing my daughter to visit Sunam. Prior to the occurrence at Patiala my daughter told me that the above named accused were beating, harassing and taunting her for bringing insufficient dowry by taking me to one side. 3-4 months prior to the occurrence Bhupinder Kumar left my daughter at Sunam and told us that he will not come again to take her back. After two months Bhupinder Kumar came with Mohan Devi with his mother's sister at Sunam. Mohan Devi took her back to Patiala on her responsibility and we sent our daughter Alka at the responsibility of Mohan Devi with my son-in-law Bhupinder Kumar. After some time(two months) I received a telephone call from my son-in-law that his son is serious and is admitted in Rajindra Hospital, Patiala and I was asked to reach immediately. When I reached Patiala in the house of the accused I found that the boy was normal and healthy and was playing. The accused were beating my daughter Alka. Bhupinder Kumar accused was armed with knife. Savitri Devi was also present there and both of them were beating my daughter. I advised the accused to maintain harmony at home but they did not take any heal to my advise and continued troubling my daughter. Then I went to the house of my brothers Nand Lal and Kamlesh Kumar who are residing in Bishan Nagar, Patiala and then we all went to the house of the accused. Then we asked the accused Bhupinder Kumar and Savitri Devi not to harass Alka but proved futile. Alka my daughter Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 5 told me that the accused used to beat her and harass her and were threatening to kill her. Afterwards my son Rakesh Kumar went to the house of the accused to bring my daughter. The accused separated my daughter and made her to stay in the room upstairs and asked my son to leave the house. My son narrated the whole occurrence to me. About one year three months, I received a telephone call at about 2.30 PM from my brother Nand Lal and Kamlesh Kumar that my daughter had died. Then I immediately rushed to the house of the accused. I saw that the dead-body of my daughter was lying on the floor in the room upstairs. There were blue marks on the neck of the dead body of my daughter. I believe that Bhupinder Kumar, Savitri Devi accused present in the Court along with Anita and Sunita had killed my daughter by strangulating her. My statement was recorded by the police. My statement was read over to me and I signed the same in token of correctness and the same is Ex.PA and I identify my signatures at point Ex.P1."
8. Sequelly, PW3-Kamlesh Kumar, brother of the complainant has also supported the case. Instead of reproducing his statement in toto and in order to avoid the repetition, suffice it to say that he has also corroborated the statement of PW2 on all vital counts.
9. Likewise, PW1-S.S.Oberoi conducted the post-mortem examination on the dead-body of Alka on police request(Ex.PC) accompanied with the inquest report(Ex.PD) vide report(Ex.PB). He opined that the cause of death of Alka was asphyxia due to ligatures strangulation, which was ante-mortem and was sufficient to cause death in the routine course of nature. PW4-Indresh Khanna, Draftsman has prepared the scaled site plan(Ex.PE) of the place of occurrence at the instance of the complainant.
10. Similarly, PW5-ASI Karam Chand has maintained that on 18.06.2000, he was present in the Bajwa Colony, Canal Bridge, where complainant-Kanta Devi met and made her statement(Ex.PA). It was Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 6 read over and explained her and she signed the same in token of its correctness. He made his endorsement(Ex.PA/1) over it and sent the same to the police station for registration of the case, on the basis of which, formal FIR(Ex.PA/1) was recorded by ASI Sakatar Singh. Thereafter, he visited, inspected the spot, prepared the inquest report (Ex.PD) and recorded the statements of the witnesses. He prepared the rough site plan(Ex.PF) of the place of occurrence with its correct marginal notes. He has also testified his remaining investigation.
11. After close of the prosecution evidence, statements of the appellants and acquitted accused were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as envisaged under section 313 Cr.PC. However, appellant-Bhupinder Kumar has stoutly denied the prosecution evidence in its entirety and pleaded false implication in the following manner:-
"I am innocent. The case is false. I was residing separate from my mother Smt.Savitri Devi and was also having separate business. My mother Savitri Devi along with my mentally retarded sister Miss Suman were residing on the ground floor. My mother was making both her ends meet by selling eatables etc. in a separate shop.
Smt.Kanta Devi, my mother-in-law her son and my wife advised me to sell out my property at Patiala and settle at Sunam. I and my mother were not agreeing to it. My wife also advised me in this behalf but I did not agree to her advice as well. Alka threatened me to commit suicide if I did not agree with her proposal. I refused to oblige Alka in this behalf. She committed suicide on that account. Relations of Alka were feeling offended with me for disagreeing with their advice. They have falsely involved me and my other family members in the case.
My sister Sunita Rani alias Poonam was married in the year 1990 and have three children. Similarly, my sister Anita was married in the year Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 7 1995 and have two children. They were residing in the houses of their in- laws. They never interferred in our personal life. They have been falsely involved in the case on account of being my sisters. An enquiry was conducted by Senior police officers and they were found to be innocent and were shown in Col.No.2. They are innocent in the case. I am also innocent in the case."
12. Similarly, the same line of defence was adopted by the remaining accused. They(appellants) and acquitted accused in order to prove their defence, examined DW1-HC Rattan Singh, who has only produced the inquiry file. DW2-DSP Rachhpal Singh, during the course of investigation found Anita and Sunita(sister-in-laws) as innocent. DW3-Dr.Ashwani Kumar has proved that Suman daughter of Santosh Kumar had moved an application for getting handicap certificate. The case was referred to Psychiatry Department and it was found to be a case of mental retardation of severe clinical category and was declared unable to take care of herself. DW4-Rajesh Kumar has proved the separate residence of Anita. This is the total evidence brought on record by the parties.
13. Taking into consideration the entire evidence brought on record by the parties, the trial Court acquitted accused Anita and Sunita (sister-in-laws). At the same time, appellants-Bhupinder Kumar(husband) and Savitri Devi(mother-in-law) were convicted and sentenced, to undergo rigorous imprisonment for a period of seven years under Section 304-B IPC, by virtue of impugned judgment of conviction and order of sentence dated 12.05.2003.
14. Aggrieved thereby, the appellants have preferred the instant appeal. That is how, I am seized of the matter.
Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 8
15. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the present appeal deserves to be partly accepted in this respect.
16. As indicated here-in-above, the appellants were charge- sheeted and convicted for the commission of offence punishable under Section 304-B IPC. Section 304-B IPC posits that "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."
17. A conjoint and meaningful reading of this provision, would reveal that the prosecution is legally required to prove the following essential ingredients before invoking the provision of Section 304-B IPC:-
(i) The death of wife should be caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such death should have been occurred within seven years of the marriage;
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(iv)Such cruelty or harassment should be for or in connection with demand of dowry soon before her death.
18. At the same time, the distinction between legally required and appreciation of relevant evidence brought on record by the Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 9 prosecution in dowry death case against the main accused & husband on the one hand and his relatives on the other hand, was considered by Hon'ble Apex Court in a celebrated judgment in case Kans Raj v. State of Punjab and others AIR 2000 Supreme Court 2324(1), which was subsequently followed in a line of judgments, wherein it was ruled that for the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases, where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry death. 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. Again the same very view was reiterated by Hon'ble Supreme Court in case Preeti Gupta & Another v. State of Jharkhand & Another 2010(7) SCC667.
19. Above being the legal position and evidence on record, now the foremost and important question, that arises in this appeal, which invites an immediate attention of this Court is, as to whether all the essential ingredients of the offence in question are complete or not ?
20. Having regard to the rival contentions of learned counsel for Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 10 the parties, to me, the prosecution was successful in proving all the essential ingredients as regards main accused appellant-Bhupinder Kumar (husband) is concerned. At the same time, it has miserably failed to prove any specific role or overt-act in respect of appellant-Savitri Devi (mother-in-law) of the deceased, in this relevant context. She deserves the benefit of doubt and acquittal as well, for the reasons described here- in-below.
21. It is not a matter of dispute that Alka died unnatural death in her matrimonial home within a period of three years of her marriage. In this manner, the initial two premises of indicated offence stand established on record. However, it has to be seen as to whether the prosecution has led sufficient and reliable evidence to establish the indicated 3rd and 4th ingredients i.e. soon before her death, the deceased was subjected to cruelty in connection with and on account of dowry articles by whom or not?
22. As regards, the role of main accused(husband) is concerned, although, there is a legal presumption as contemplated u/s 113-B of the Indian Evidence Act, but still, there is an ample positive evidence of cruelty against him on record. He and the deceased were residing as a husband & wife under the same roof. She died unnatural death in his (Bhupinder Kumar) house. In that eventuality, it was his duty to explain the reasons as to how and in what manner, she died in his house, which he has utterly failed to do so in this relevant behalf. On the contrary, there is an acceptable evidence of PW2 and PW3 that soon after the marriage, appellant and others started taunting, torturing, harassing and gave Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 11 beating to Alka for bringing insufficient dowry. PW2 has maintained that 3-4 months prior to the present occurrence Bhupinder Kumar left her daughter at Sunam and told them that he will not come again to take her back Patiala. He was the person, who called the complainant on false pretext of illness of his son. He had attacked the deceased with the knife in the presence of the complainant. It has come in evidence that the complainant and the deceased put pressure on Bhupinder Kumar to sell his property at Patiala and to re-settle at Sunam, where the complainant would help him. But he showed his inability to leave her widowed old mother alone at Patiala. Such like demand of dowry can originate from the mouth of husband only, who individually might be interested in enhancing his status by the dowry articles. There are direct allegations against the husband that he used to beat and treat the deceased with cruelty in connection with and on account of demand of dowry, even soon before her death. The evidence of PW2 and PW3 is reliable and trustworthy, as regards cruelty of appellant(husband) on account of demand of dowry is concerned. They were cross-examined at length, but no substantial material could be elicited in their searching cross- examination. Meaning thereby, it stands proved on record that it was only appellant-Bhupinder Kumar(husband), who has drived the deceased to unnatural death. The prosecution has duly proved the case against him beyond reasonable doubt in this relevant direction.
23. Faced with this grave situation, learned counsel for the appellants has fairly acknowledged that in view of the above-mentioned acceptable evidence, he has nothing to urge, to assail the conviction of Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 12 main accused appellant (husband). Not only that, even learned counsel for the appellants did not further press the appeal of appellant(husband) on the ground that as per latest custody certificate dated 28.08.2013, he (Bhupinder Kumar) was released from jail on 21.09.2004 after completion of the substantive sentence in the present case. It is also so recorded in the order dated October 07, 2004 of a Coordinate Bench of this Court(Satish Kumar Mittal, J.). Since, no other legal infirmity has been pointed out by the learned Counsel, so, the impugned judgment of conviction and order of sentence relatable to Bhupinder Kumar(husband), is hereby maintained under the present set of circumstances.
24. Be that as it may, ex facie, the argument of the learned senior counsel that there is not an iota of acceptable evidence against appellant
-Savitri Devi(mother-in-law), has considerable force.
25. The perusal of the evidence brought on record would reveal that, very vague and general allegations of cruelty in connection with and on account of demand of dowry are assigned to Savitri Devi(mother-in- law). In this regard, the crux of evidence of PW2 and PW3 is that soon after the marriage, Bhupinder Kumar(husband), mother-in-law and sister- in-laws starting torturing, taunting and beating the deceased for bringing insufficient dowry. How, when and in what manner, mother-in-law has demanded any particular articles, remains an unfolded mystery. Besides it, the grounds of acquittal of sister-in-laws, recorded by the trial Court are more deeply applicable to the case of mother-in-law on similar allegations.
26. Not only that, appellant-Savitri Devi is an old lady and was Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 13 of 65 years of age at the relevant time. Her husband had died, much prior to the marriage of Alka(deceased). PW2 has categorically admitted in her cross-examination that the house of Bhupinder Kumar had two shops towards its front and Chaubara over it. Their residence is behind the shop. Appellant-husband was running a separate shop of cycle-repair, whereas his mother used to sell eatables such as toffees etc. in the other shop. PW2 has further admitted that Bhupinder Kumar and Alka were residing in the 1st floor(Chaubara) separately from Savitri Devi, who was residing in the ground floor. She did not mention any specific demand of dowry articles by mother-in-law. It has come in evidence that the complainant and the deceased put pressure on Bhupinder Kumar to sell his property at Patiala and to re-settle at Sunam, where the complainant would help him. Meaning thereby, the core reason for dispute of the deceased was with her husband and not with her mother-in-law, who was residing separately. When, it is so admitted/proved on record that Savitri Devi was residing separately from Bhupinder Kumar and Alka(deceased), in that eventuality, it cannot possibly be saith that mother-in-law would have ever treated the deceased with cruelty on account of demand of dowry articles soon before her death.
27. As indicated earlier, very vague and general allegations of cruelty and demand of dowry are assigned to her. No specific role, overt- act or demand of dowry, except vague allegations, are assigned to her. She was not going to be benefitted from dowry articles meant for husband of Alka(deceased) because she was residing separately. Such like demand can originate from the mouth of husband only, who individually might be Rani Seema S 2013.09.03 13:55 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.984-SB of 2003 14 interested in enhancing his status by the dowry articles.
28. Therefore, she(Savitri Devi)-mother-in-law appears to have been falsely implicated by the complainant in this case, in order to wreak vengeance by leveling the pointed very vague and general allegations. Thus, the ratio of law laid down by Hon'ble Apex Court in Kans Raj and Preeti Gupta's cases (supra) 'mutatis mutandis" is applicable to the case of appellant(mother-in-law) and is the complete answer to the problem in hand. In this manner, to my mind, it would not be safe to convict her, in the absence of any acceptable evidence of specific role, overt-act and demand of dowry, soon before the death of the deceased. Hence, she is entitled to the benefit of doubt and deserves to be acquitted as well.
29. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
30. In the light of aforesaid reasons, the instant appeal is partly accepted. The impugned judgment of conviction, relatable to appellant- Savitri Devi(mother-in-law), is set aside. Having extended the benefit of doubt, she is acquitted of the charges framed against her. At the same time, the appeal of appellant-Bhupinder Kumar (husband) is dismissed as such. Consequently, the impugned judgment of his conviction & order of sentence are hereby maintained in the obtaining circumstances of the case.
Needless to mention that the necessary compliance and procedural consequences would naturally follow.
August 29, 2013 (MEHINDER SINGH SULLAR)
seema JUDGE
Whether to be referred to reporter? Yes/No
Rani Seema S
2013.09.03 13:55
I attest to the accuracy and
integrity of this document
High Court Chandigarh