Punjab-Haryana High Court
Munish Chawla And Others vs State Of Haryana on 7 January, 2011
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Crl. Appeal No.775-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.775-SB of 2001
Date of decision:7.1.2011
Munish Chawla and others
...Appellants
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.D.S.Bali, Sr. Advocate with
Ms. Neha Mann, Advocate,
for the appellants.
Mr. Kshitij Sharma, AAG, Haryana.
JITENDRA CHAUHAN, J.
1. The present Criminal Appeal has been preferred by the appellants challenging their conviction passed by the Court of Ld. Additional District Judge, Ambala vide which judgment dated 28.4.2001 held all the four accused/ appellants guilty under section 304 B and 498 A IPC.
2. Vide order dated 30.4.2001, the appellants were sentenced to undergo 10 years rigorous imprisonment for commission of offence u/s 304 B IPC and a fine of `5000/- each, in default of which they were ordered to further suffer RI for a period of 1 year. The Ld. Trial court also sentenced the appellants to suffer RI for 2 years under section 498 A IPC and a fine of `1000/ - each, in default of which they were further sentenced to undergo RI Crl. Appeal No.775-SB of 2001 2 for a period 3 months.
3. The brief facts of the prosecution case as disclosed by Ascharaj Lal Chopra, PW8 are that his daughter Ruchika was married to Munish Chawla on 1.2.1998. He gave sufficient dowry at the time of her marriage. In addition to this, he also gave `35,000/- in cash for purchasing furniture. After some time of marriage, his daughter informed him on telephone about the ill treatment meted out to her at the hands of accused. She further informed that her husband Munish Chawla, N.K.Chawla (father-in-law) Sudesh Chawla (mother-in-law) and Alka Kakkar (sister-in-law) were not satisfied with the dowry as no furniture was given at the time of marriage. She further informed him that she was not even being provided food properly. On receipt of this message, he alongwith his wife went to her matrimonial home. He requested the accused not to maltreat or harass his daughter Ruchika as he had already paid a sum of `35,000/- for the purchase of furniture. On that accused/appellant No.2 N.K.Chawla, father- in-law, got angry and said that some furniture is needed by Munish Chawla at Rewari i.e. the place of his posting. Initially, he (father of deceased) expressed his inability to provide furniture being a poor person but upon insistence by the accused, he went to Rewari and purchased furniture for accused Munish. He further disclosed that he also handed over a sum of `7800/- in cash for purchasing the invertor. His daughter was kept nicely for 2-3 months. But after some time, his daughter informed him on telephone that the accused again made a demand for computer. On receipt of this information, he alongwith one Mangat Ram Sharma went to the matrimonial home of his daughter at Karnal, where all the accused met him. Crl. Appeal No.775-SB of 2001 3 He again agreed to pay a sum of `36,000/-, which was given to accused N.K.Chawla (father-in-law of the deceased) in the presence of all the remaining accused and said Mangat Ram. In the month of September 1998, when he (father of deceased) was coming back from Ajmer, he stopped on his way at Rewari, where at that time his daughter Ruchika was residing. Then the accused Munish Chawla raised a demand of gold karra. The complainant gave a sum of `8,000/- to him in order to purchase the same. In the month of November 1998, he again received a telephonic message from his daughter that the accused raised a demand of sum of `50,000/-. On that, he expressed his inability to pay such an huge amount. On 6.12.1998, accused/appellant Munish Chawla and Ruchika, the deceased, came to his house. The accused Munish Chawla told him that he was going to Chandigarh and would take Ruchika on his return journey. But he did not turn up thereafter and deserted Ruchika. On the next day i.e. 7.12.1998, accused Munish Chawla filed a petition under Section 13 of Hindu Marriage Act, annulment of the marriage and the case was fixed for on 4.2.199 for reconciliation. When the matter could not be patched up, the complainant approached Munish Chawla and his father N.K.Chawla and requested them to patch up the matter but they flately refused to keep Ruchika with them in case `50,000/- was not paid to them. On account of the harassment and cruelty meted out to her daughter, she consumed poison on 21.2.1999 at her parental home.
4. Ruchika was immediately taken to General Hospital, Ambala, where doctor sent ruqa. ASI Baldev Singh reached at the hospital and moved an application seeking opinion of the doctor whether she is fit to Crl. Appeal No.775-SB of 2001 4 make a statement or not. The doctor opined that the patient was not responding to the verbal commands. On that ASI Baldev Singh immediately approached the then CJM and moved an application, Exhibit PD, requesting him to record the statement of Ruchika under Section 164 Cr.P.C. Sh. A.K.Tyagi, the then CJM recorded the statement of Ruchika.
5. On the basis of statement of Ruchika, Exhibit PE, formal FIR was recorded. After some time at about 6.55 p.m. on 21.2.1999, Ruchika died.
6. On completion of investigation, final report under Section 173 Cr.P.C. was prepared and presented. On its basis, the accused/appellants were charge sheeted for the offence under Sections 304-B and 498-A IPC to which, they pleaded not guilty and claimed trial.
7. To prove its case, the prosecution examined as many as ten witnesses.
8. Manohar Lal, PW1 and Dharam Pal, PW2, Ravinder Kumar, PW3 and Surinder Singh, PW6 are formal witnesses.
9. Dr. Sunanda Jindal, PW4, has deposed that on 21.2.1999 she was posted as a Medical Officer in General Hospital, Ambala. Ruchika. On that day Ruchika was brought to the casuality under a suspected history of poisoning. She further deposed that after admitting the patient in the hospital, she sent ruqa to the police station regarding admission of Ruchika.
10. Sh. A.K.Tyagi, PW5, has deposed that on 21.2.1999, he was posted as CJM at Ambala. On that day, ASI Baldev Singh met him and moved an application, Exhibit PD. He went to the General Hospital, Ambala City and recorded the statement, Exhibit PE, of Ruchika. Crl. Appeal No.775-SB of 2001 5
11. Dr. R.C.Jindal, PW7, has deposed that on 22.2.1999, he alongwith Dr. Avan Chaudhary, conducted the post-mortem examination on the dead body of Ruchika.
12. Ashcaraj Lal, PW8 (father of the deceased) has reiterated the facts as mentioned in para 1 of judgment.
13. Mangat Ram, PW9 (friend of Ascharaj Lal) has corroborated the statement of his friend Ascaraj Lal, PW8 (father of the deceased), regarding the ill- treatment being meted out by the accused/appellants to Ruchika on account of less dowry.
14. ASI Baldev Singh, PW10, has deposed that on 21.2.1999, he received a V.T. message from Police Station Baldev Nagar to the effect that Ruchika was admitted in the hospital under a suspected history of poisoning. On that he alongwith Constable Sham Lal went there. He further deposed that he went to the residence of CJM, Ambala, where he moved an application to record the statement of Ruchika under Section 164 Cr.P.C.
15. After completion of prosecution evidence, the accused- appellants was examined under Section 313 of the Code of Criminal Procedure in which they denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent.
16. In defence, the accused examined as many as witnesses, namely, Shri M.N.Sharma, Document Expert, Patiala, as DW1; Meenu Tiwari, resident of Rewari, as DW2; Ramesh Chand Pathak, as DW3; Mohan Singh as DW4; T.D.Dhamija, as DW5; R.N.Bhatia as DW6; Dr. Crl. Appeal No.775-SB of 2001 6 Kuldip Chand, Kuldip Hospital, Ambala City, as DW7; Sh.Sandeep Khirwar, S.P. Ambala as DW8; Chander Kant, Receptionist as DW9; Sh.D.K.Gandhi, Clerk, Allahabad Bank, Sector-6, Karnal, as DW10 and Sh.S.C.Makkar, Clerk, Punjab National Bank, GT Road, Karnal, as DW11.
17. After hearing the parties, the learned trial Court convicted and sentenced the accused/appellanst as noticed at para 1 of this judgment.
18. Feeling aggrieved by the judgment and order of learned trial Court, the appellants have preferred the present appeal, which was admitted by this Court on 14.8.2001. The appellants were enlarged on bail 27.11.2001.
19. I have given my thoughtful consideration to the arguments advanced by the Ld. counsels appearing for the Appellants and the State of Haryana respectively, and also gone through the LCR with their able assistance.
20. The appellants were convicted under section 304 B and section 498 A of the IPC. The chief incriminating evidence appearing against the appellants is in the form of the dying declaration of the deceased Ruchika which is Ex. PE and the testimonies of the father and uncle (a close friend of the deceased's father) of the deceased who were witnesses to the alleged dowry demands made by the appellants and the resultant harassment of the deceased at the hands of the appellants. The ld. trial court found the dying declaration truthful and worthy of reliance as also the testimonies of the father and uncle of the deceased to return a finding of guilt against the appellants, as already stated at the outset.
21. The learned. Senior counsel appearing for the appellants has Crl. Appeal No.775-SB of 2001 7 assailed the findings of the ld. trial court by arguing that the dying declaration Ex PE was neither convincing and nor was it truthful. The learned. senior counsel further argued that in fact the medical condition of the deceased, right from the time of her arrival at the hospital till the time of her death, was such that she was not in a position to even give the statement. For substantiating his arguments, the learned senior counsel has relied on the Bed head ticket of the deceased which was not produced by the prosecution but was exhibited by the defence before the trial court. On the basis of the notings made in the bed head ticket and the testimony of the treating doctor Dr. Sunanda Jindal, PW4, the learned senior counsel argued that the deceased was not responding to verbal commands and there was no change in her medical condition from the time of her admission till the time of her death. The learned senior counsel submitted that she was on oxygen throughout the time of her admission in the hospital. He further submitted that the blood pressure of the deceased was not recordable after 4.30 pm whereas the dying declaration was recorded at 5.30 pm and as such the deceased was just not in a position to get a statement recorded or was in such a fit state of mind that she could have been fully alive to the situation, while getting the statement recorded, knowing the contents of what she is dictating.
22. Regarding the allegations of specific and persistent dowry demands and their fulfillment, which appear in the testimony of the father of the deceased and her uncle, the learned senior counsel submits that they are merely an afterthought and are not supported by any evidence or proof. In order to rebut the allegations of dowry demands, the learned senior counsel Crl. Appeal No.775-SB of 2001 8 has referred to the testimony of DW 2, who has categorically deposed on oath that the deceased and her husband were leading a very cordial married life and they never witnessed any harassment of the deceased at the hands of her husband, appellant no. 1 Munish Chawla.
23. The learned State counsel on the other hand has argued that the dying declaration was recorded by following the due procedure of getting the opinion of the treating doctor regarding the deceased's fitness to make statement and also getting an endorsement from the treating doctor that she was fit and remained in senses during the recording of her statement. The learned State counsel thus argues that there is hardly any doubt regarding the veracity of the dying declaration and the learned trial Court has rightly relied on the same to hold the appellants guilty. the learned State counsel has further referred to the testimonies of the father of the deceased and her uncle to buttress the prosecution case that the deceased was repeatedly asked to bring more and more dowry and was also harassed on that account by the appellants.
24. The requirement of law for proving the commission of an offence under section 304B IPC and section 498 A IPC are very different even though both sections relate primarily to harassment on account of dowry demands. Section 498 A IPC talks about the offence of causing physical and/or mental harassment to the bride on account of dowry demands by the husband or his relatives. Section 304 B deals with a specific situation wherein a bride has died an unnatural death within 7 years of her marriage and such death was a result of harassment caused to her by the husband or any his relatives on account of dowry demands provided that Crl. Appeal No.775-SB of 2001 9 such harassment/ dowry demands occurred soon before her death. However, unlike section 304 B IPC, Section 498 A IPC does not restrict the time period within which harassment could be classified as falling under section 498 A IPC or not. It is in this backdrop that the evidence appearing in the present case has to be evaluated so as to reach a finding of guilt or innocence of the appellants.
25. Reverting firstly to the issue of truthfulness and veracity of the dying declaration, it has come on record that the ld. CJM, Sh. A.K. Tyagi, who also appeared as PW5, was requested by ASI Baldev Singh, PW10, to record the statement of the deceased Ruckika. The learned CJM recorded the time of his leaving for the hospital. Thereafter, on reaching the emergency ward of the hospital, he made an endorsement that he has sought the opinion of the treating doctor Dr. Sunanda Jindal, PW4, regarding the condition of the injured (now deceased) who gave her opinion that the patient was fit to make a statement. Again, time was recorded specifically as to when the opinion was sought and when was it given by the treating doctor. Thereafter, the learned CJM proceeded to record the statement/ dying declaration of Ms. Ruchika. After recording the same, the treating doctor again made an endorsement that the patient remained conscious throughout the time of recording the statement. An endorsement was also made by the learned CJM to the effect that during the recording of the statement, no one was present with the patient except himself and the treating doctor. At this juncture it is important to refer to the evidence of the treating doctor Dr. Sunanda Jindal PW 4.
26. Dr. Sunanda Jindal, PW4, specifically deposed before the trial Crl. Appeal No.775-SB of 2001 10 court that the patient did not respond to verbal commands at 4.30 pm but after 5 pm she was responding to verbal commands occasionally. She further deposed that the blood pressure of the patient (deceased) was not recordable from 4.30 pm to 5.00 pm. She also deposed that when the blood pressure of the patient starts to fall that does not mean that the patient's condition is like that of a dead person. The cumulative effect of Dr. Sunanada Jindal's deposition is that the condition of the deceased was serious for a while only i.e. between 4.30 pm to 5 pm. The patient seemed to have improved thereafter. Moreover, she has specifically deposed that falling blood pressure does not mean that the person is dead or in a similar state. All this becomes relevant in the face of the admitted fact that the dying declaration was recorded at 5.30 pm.
27. Dr. RC. Jindal, PW7, who conducted the post mortem examination stated that in case of poisoning by Aluminium Phosphate/ phosphide, as in the present case, the patient is likely to remain conscious till death and then suddenly collapse. He further deposed that a person with unrecordable pulse and blood pressure can still be conscious.
28. Sh. AK. Tyagi PW5, who was the then ACJM Ambala deposed on oath that when he recorded the statement of deceased Ruchika, she was not on oxygen. He further deposed that he had informed Ruchika of the purpose of her visit and also that prior to recording her statement, he had directed all the relatives of the deceased/ patient to go out of the room.
29. In the face of consistent testimonies of Dr. Sunanda Jindal, PW4, Dr. R.C. Jindal, PW7 and Sh. A.K. Tyagi, PW5, and the documentary evidence available on record i.e. the endorsements/ opinion of the treating Crl. Appeal No.775-SB of 2001 11 doctor and the Magistrate, it is clear that the statement of Ms. Ruchika was recorded when she was in senses and in a position to get it recorded, notwithstanding her medical condition which might have deteriorated earlier to recording the statement but at the time of recording the statement, she was in a position to do so. The arguments developed by the ld. senior counsel are not based on any medical evidence or medical jurisprudence but is purely by way of deduction. No doctor was produced by the defence to rebut the statements of PW 4 and PW 7. The Court is, thus, of the opinion that the argument of the learned counsel for the Appellants that the statement of the deceased could not have been recorded, given the medical condition of the deceased/ patient, is liable to be rejected.
30. This Court is to see that dying declaration is free and spontaneous statement by the declarant without any suggestions or tutoring. Sh.A.K.Tyagi, PW5, directed all the relatives of the deceased/patient to go out of the room is suggestive of the fact that before arrival of this witness in the hospital she was surrounded by her relatives. They might be knowing or the police might have intimated to them that a Magistrate would be coming to record the statement of the patient. There is every possibility of the patient/deceased of tutoring or suggesting by the relatives or people surrounding her to make particular allegations against entire family members of her in-laws. In such a situation, the Court has to carefully scrutinise the contents of dying declaration to satisfy that the dying declaration is true and voluntary.
31. However, having held that the statement of the deceased Ms. Ruchika was infact recorded when she was in a fit state, it is important to Crl. Appeal No.775-SB of 2001 12 analyse the contents of the said dying declaration. A perusal of the statement which is in the form of questions and answers, it is clear that Ms. Ruchika nowhere implicated her husband or her in laws/ appellants on account of dowry harassment till the time a specific and leading question is put by Sh. A.K. Tyagi to that effect. Till that question is put, there is nothing in her statement to suggest that the appellants were harassing and maltreating her for dowry demands. Once the leading question was asked, the patient thought it fit to implicate them on this count also. Even if for a moment it is believed that the deceased was infact being harassed as per her reply to the question put by Sh. A.K. Tyagi, it still does not bring this case within the ambit of Section 304 B IPC since the crucial ingredient of harassment on account of dowry demands "soon before her death" is not proved by any stretch. In view of this fact, this Court is unable to conclude that charge under section 304 B IPC against the Appellants has been proved beyond all doubts.
32. In so far as the charge under section 498 A IPC is concerned, there were three chief demands for dowry that appear in the statement of the father of the deceased and on the basis of which charge u/s 498-A IPC was sought to be proved by the prosecution. The first allegation pertains to handing over of `35000/- by the father of the deceased to the father (Appellant no. 2) of the husband of the deceased at the time of the marriage. The second allegation is regarding handing over of `36000/- in cash by the father of the deceased again to Appellant no. 2. The third allegation pertains to demand of a gold "Karra" by Appellant no. 1 from the father of the deceased. It is important to analyse these allegations to see whether these Crl. Appeal No.775-SB of 2001 13 allegations, if proved, would constitute an offence u/s 498 A IPC.
33. In so far as the first allegation of payment of dowry of `35000/ - is concerned, it is relevant to highlight that the same was handed over to N.K.Chawla, appellant no. 2, at the time of the marriage i.e. of the deceased with Appellant no. 1. Examination in chief of Ascharaj Lal Chopra, PW8 (father of the deceased), reveals that no demand of dowry was raised by the appellants at the time of solemnisation of marriage and whatever was given by the father of the deceased was a result of his own wish. Infact, PW 8 even stated that for the first couple of months, his daughter was kept very nicely. In view of this statement, the handing over of `35000/- to N.K.Chawla, appellant no. 2, by the father of the deceased at the time of the marriage can neither be said to be a dowry demand on behalf of the Appellants nor can it be said to be an act of harassment of the deceased on account of dowry.
34. The second specific allegation is regarding handing over of `36000/- to N.K.Chawla, appellant no. 2, for purchase of a computer on account of his persistent demand from the father of the deceased to the effect that his son needs a computer, being an engineer. The said money was handed over by the father of the deceased to appellant no. 2 in the month of September 1998. In order to rebut this allegation, the defence had produced the receipts regarding the purchase of the said computer by way of demand draft and also produced in evidence, the accountant of the shop from which the computer was purchased. A perusal of the purchase receipt as well as evidence of Mohan Lal, DW 4, shows that the purchase price of the computer was over `50000/- and the same was paid by way of demand draft Crl. Appeal No.775-SB of 2001 14 from the account of N. K. Chawla, appellant no.2. Ascharaj Lal, PW-8 (father of the deceased) has not been able to produce any proof that he paid `36000/- in cash to N. K. Chawla, appellant no.2. Although he has tendered the proof in regard to withdrawal of `35000/- which was paid at the time of the marriage but no proof was tendered regarding the withdrawal of `36000/- which was allegedly handed over to N. K. Chawla, appellant no.2. It seems that the allegation of demand of money for purchase of a computer has been very carefully crafted so as to make it comparable to the purchase price of the computer, which was `52,000/-. Going further, if the demand for computer money had actually been met by the father of the deceased, there was no requirement for N. K. Chawla, appellant No.2, to prepare a demand draft for purchasing the computer. He could have added the remaining money and brought the computer by tendering cash to the vendor. In view of the above, this Court is unable to believe that the demand of computer was ever raised by the appellants.
35. The third allegation is in the form demand of a gold 'Karra' By appellant no. 1 from the father of the deceased. As per Ascharaj Lal, PW 8, the same was made by appellant no.1 from PW 8 when he visited them at Rewari and further that he immediately paid up `8000/- for the same. Although this allegation seems to be doubtful and appears to have been made only to buttress the prosecution case but if taken to be proved, even then no harassment is proved of the deceased on account of this demand since it was made and immediately paid up by Ascharaj Lal, PW 8; so where is the question of harassment? Moreover, there is no suggestion in the examination in chief of PW 8 that such a demand was ever made prior to Crl. Appeal No.775-SB of 2001 15 his visit to Rewari.
36. Another allegation that appeared in the evidence of Ascharaj Lal, PW 8, and Mangat Ram, PW 9 is regarding demand of `50000/- at about the time when Appellant no. 1 had filed a petition for annulment of the marriage. The allegation on the face of it seems to be false since what is sought be proved is that the annulment petition was filed so as to secure the payment of `50000/-. This is not believable that having filed an annulment petition, the Appellants would still ask for dowry as a precondition for withdrawing the said petition.
37. It seems that the real genesis of the dispute between the deceased and her in laws, including Appellant no. 1 was her apparent illness i.e. epilepsy. It has come on record that she was prone to fits and that seems to be the probable reason as to why even the annulment petition was filed. Moreover, referring back to the dying declaration of the deceased, it is clear that she was very upset at the fact of her having been left by her husband and not because of her harassment on account of dowry demands. The real driving force behind her consuming poison is, in all probability, the shock of her husband filing a marriage annulment petition. If a person is proceeding as per law, he cannot be said to have committed any crime. So, the dying declaration is to be ignored.
38. It also needs to be pointed out that Ms. Alka Kakkar, appellant No.4, has been made to suffer the agony of a criminal trial only on account of her relation of being the sister of appellant no. 1 i.e. the husband. There is no evidence at all against her except the bald statement of Mangat Ram, PW 9, that she had accepted a part of such dowry demand, when the same Crl. Appeal No.775-SB of 2001 16 was fulfilled by Ascharaj Lal, PW 8. In fact, the father of the deceased made no such allegation at all which further makes this Court to believe that Ms. Alka Kakkar, appellant no. 4, had no role at all to play in the dowry demands of her parents and her brother.
39. In view of the foregoing discussion, this appeal is accepted and the appellants are acquitted of the charges for which they were convicted by the learned trial court.
7.1.2011. (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes / No