Punjab-Haryana High Court
Dalbir And Another vs State Of Haryana on 22 February, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.68-SB of 2003
Date of decision: 22nd February, 2011
Dalbir and another
... Appellants
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Sudhir Sharma, Advocate for the appellants.
Mr. Anoop Sharma, Assistant Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Present appeal has been filed by Dalbir and his brother Narbir. They, along with their another brother Manoj, sisters namely Saroj and Babli, and husband of Saroj namely Jagbir, were nominated as accused in a case FIR No.61 dated 29.01.2000 registered at Police Station Sadar Gurgaon under Section 304-B/34 IPC. They were tried by the Court of Sessions Judge, Gurgaon, which vide its judgment dated 13th December, 2002, acquitted Manoj, Jagbir, Saroj and Babli, but held the appellants guilty of an offence punishable under Section 304-B IPC and vide a separate order of even date, sentenced them to undergo rigorous imprisonment for a period of ten years.
Savita alias Sunita was married with appellant Dalbir on 1st February, 1998. On 29th January, 2001 in her matrimonial home, she committed suicide by hanging herself, within seven years of her marriage. The appellants, along with the acquitted accused, were tried for an Criminal Appeal No.68-SB of 2003 2 offence punishable under Section 304-B IPC. In the present appeal, conviction recorded and the sentence awarded to the appellants by the trial Court is under challenge.
Urmila PW-7 made a statement Ex.PC to Inspector Vijay Singh PW-10. It has come in the evidence that Inspector Vijay Singh PW-10 on the night intervening 28th and 29th January, 2001 at about 12 O' Clock was present in village Gurgaon in connection with patrol duty, when Urmila PW-7 along with various persons arrived and made a statement Ex.PC, whereon an endorsement Ex.PC/1 was given and a formal FIR Ex.PD was registered. In her statement Ex.PC, Urmila PW-7 stated that she is a resident of Delhi. Her elder sister Usha was married with Sube Singh son of Lekh Ram. Usha gave birth to two daughters, namely Sunita and Poonam and thereafter she died. Thereafter, family of the complainant married her with Sube Singh. Two daughters and a son were born to her. Husband of the complainant was posted in CRPF. On 1st February, 1998, both the sisters namely Sunita and Poonam were married with two brothers namely Dalbir and Narbir respectively according to Hindu customary rites. At the time of marriage, the girls were sent to their matrimonial home. Family of the complainant had given dowry according to its capacity. After the marriage, both the girls namely Sunita and Poonam disclosed that they were married in a family of useless (nikammey) people. Sunita also told that her husband Dalbir was married earlier also and he had given divorce to his earlier wife. After the marriage, Sunita and Poonam visited their parental house and told the complainant, her husband Sube Singh and brothers Varinder and Narinder, that their in-laws used to harass them. They stated that Dalbir, Narbir and Manoj sons of Nand Ram, Saroj and Babli daughters of Nand Ram, and Jagbir husband of Saroj used to maltreat them for not bringing sufficient dowry. They further reported that all the accused used to taunt Criminal Appeal No.68-SB of 2003 3 them. But the complainant made both the girls understand and sent them back to their matrimonial home. Once upon a time, Poonam informed that her husband Narbir had given her electric shocks, due to which she was kept at her parental home. Dalbir was also not having a good character. He was addicted to alcohol and was a drunkard. In the year 1999, after the festival of Holi, Dalbir had taken Rs.1.00 lakh from the family of complainant saying that he had to pay the installment of truck loan and assured that the amount shall be repaid. About one month thereafter, Dalbir had taken another amount of Rs.50,000/-. About 20 days before the occurrence, Sunita visited the house of complainant and stated that her in-laws were demanding two scooters. The complainant assured her that as and when the family will have the money, they will purchase scooters and with this assurance Sunita was sent back to her matrimonial home. The complainant never wanted to send Sunita back to her matrimonial home, but Dalbir assured to the relations that he will take care of his wife Sunita and therefore, she was sent to her matrimonial home. On 28th January, 2000 at about 8.00 p.m. Dalbir came and informed that Sunita was not feeling well. However, at about 9.30 p.m., uncle (mama) of the complainant Braham Parkash came and informed about the death of Sunita. The complainant along with her brother and maternal uncle, came to the investigating officer to lodge a report. She expressed her apprehension that Sunita has been killed by her husband Dalbir, his two brothers namely Narbir and Manoj, and his sisters namely Saroj and Babli for not bringing dowry to their expectations.
The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. The case was committed to the Court of Additional Sessions Judge, Gurgaon.
The investigating agency had kept Saroj, Babli and Jagbir in column No.2 as they were found innocent. Subsequently, they were Criminal Appeal No.68-SB of 2003 4 summoned under Section 319 Cr.P.C. to stand trial. Appellants were again charged on 11th January, 2001 for an offence punishable under Section 304-B IPC.
Autopsy on the dead body of deceased Sunita was performed on 29th January, 2000 by Dr.S.K. Sharma PW-1. He found a ligature mark around the neck of deceased. Two chunnis bearing ligature material were also found tied around the neck, one was of red colour and the other of greenish blue colour. After the post-mortem was conducted, Dr.Sharma opined that cause of death was due to hanging. The doctor further gave an opinion that the duration between injury and death was immediate and between death and post-mortem was within 24 hours.
Complainant Urmila appeared as PW-7 and reiterated as to what was stated in her statement Ex.PC. She further stated that both Sunita and Poonam had disclosed that accused Dalbir and Narbir were addicted to alcohol. She further stated that accused were raising a demand of cash and accordingly, Rs.1.00 lakh was given to Dalbir to pay the installment of a truck loan. The complainant stated that the payment was made as she wanted her daughters to live in peace. About 20 days before the occurrence, Sunita came to the complainant and informed her that accused were demanding two scooters and in case the same are not given the accused have threatened to kill her.
Poonam, wife of appellant Narbir, appeared as PW-8. She also corroborated the testimony of her step-mother Urmila PW-7.
Having taken note of the evidence of material witnesses, the testimonies of other witnesses can be quickly noticed as under:
ASI Daya Ram PW-2 had recorded the formal FIR Ex.PD after ruqa Ex.PC was received. SI Satbir Singh PW-3 had recorded the statement of Sarwan Kumar Draftsman under Section 161 Cr.P.C. He had also recorded statement of Sube Singh and Poonam. Criminal Appeal No.68-SB of 2003 5
Constable Sarwan Kumar Draftsman PW-4 had prepared the scaled site plan Ex.PE of the spot. DSP Fateh Singh PW-5 at the relevant time was posted as an Inspector/SHO Police Station Sadar Gurgaon. He had prepared and submitted a report under Section 173 Cr.P.C. Radhy Sham PW-6 had taken photographs Ex.P10 to Ex.P13 of the place of occurrence. The negatives were proved as Ex.P14 to Ex.P17.
Rishi Pal, Additional Ahlmad in the Court of V.P.Sirohi, JMIC, Gurgaon appeared as PW-9. He proved FIR No.99 dated 16.02.2000 registered at Police Station Sadar Gurgaon under Sections 498-A, 406 IPC read with section 34 IPC at the instance of Poonam. Vijay Singh retired Sub Inspector PW-10 proved various facets of the investigation.
Thereafter, prosecution closed its evidence and statements of the accused appellants were recorded under Section 313 Cr.P.C. They denied all the incriminating circumstances put to them and pleaded false implication. Appellant Dalbir gave the following version:
"I am innocent. I am a driver by profession, drawing about 6500/- salary. Occasionally, I used to come late in my house and had also some times used to take drinks due to which my wife remained intentionally aggrieved with me. She and her family members also suspected that I had also previously married and had abandoned my wife and this fact was concealed by me although I had never so married. My wife Sunita deceased was a highly sensitive woman. I, my brother Ranbir or any of my family member had never demanded any dowry, scooter or cash from them as alleged, nor took any money from them as we were economically very well of. My brother Ranvir ran a dairy and was keeping four- five buffaloes for the purpose and was earning handsome. We never demanded any dowry. Poonam was made by her parents to make a false report after 16 or 18 days of the death of Sunita. It was due to these reasons that Sunita on account of mental stress, committed suicide, because of my drinking sometimes and suspicion of a marriage earlier. It is Criminal Appeal No.68-SB of 2003 6 incorrect that the case against us has been registered to blackmail us.
Saroj and Babli my sisters are married for more than 10/15 years each and live with their husband and in-laws. Jagbir is the husband of Saroj. The question of demanding anything does not arise. Manoj my younger brother is a student and is unmarried and similar is his case."
A similar plea has been taken by co-accused appellant Narbir.
In defence, the accused had examined Surender as DW-1, who stated that the accused had not raised any demand and no panchayat was convened in his presence.
From the testimonies of Urmila PW-7 and Poonam PW-8, following facts emerge:
(a) Both sisters Sunita and Poonam were married with two brothers Dalbir and Narbir, present appellants;
(b) Poonam was given electric shocks and she had returned to her parental home. She had not come back to her matrimonial home before the occurrence;
(c) According to the complainant, a grievance was made by the deceased that her husband Dalbir was earlier married and was a divorcee;
(d) Appellant Dalbir was addicted to liquor and was a drunkard;
(e) Dalbir had taken an advance of Rs.1.00 lakh from the complainant to pay installments of a loan taken by him for purchase of a truck;
(f) Dalbir had taken another advance of Rs.50,000/- from the complainant with a promise to return the same;
(g) The accused were taunting, maltreating and harassing Sunita and Poonam for bringing less dowry;Criminal Appeal No.68-SB of 2003 7
(h) At instance of Poonam, estranged wife, appellant Narbir was separately tried for offences under Sections 406 and 498-A IPC.
Mr. Sudhir Sharma, Advocate appearing on behalf of the appellants, has stated that except the solitary allegation that Narbir had given electric shocks to his wife Poonam much prior to the occurrence, there is no allegation against him to infer that soon before the death of Sunita, he was responsible for any act, which may have led the deceased to commit suicide. Learned counsel has further stated that since omnibus, general and vague allegations were leveled against all the accused, Narbir was also entitled to the benefit granted by the trial Court to co- accused Manoj, Jagbir, Saroj and Babli. It is further submitted that the appellants were only charged for an offence punishable under Section 304-B IPC for causing cruelty to Sunita to commit suicide. Mr.Sharma has further submitted that for causing electric shocks to Poonam, no separate charge under Section 498-A IPC has been drawn in the impugned FIR against appellant Narbir as he is already facing trial in a separate FIR lodged at the instance of his wife Poonam.
Mr.Anoop Sharma, Assistant Advocate General, Haryana has stated that the testimonies of Urmila PW-7 and Poonam PW-8 aspire confidence. It is submitted that Poonam was living in the same matrimonial home and thus, she was a witness to the acts of cruelty, maltreatment and harassment on the part of the accused.
I have considered the rival submissions advanced by counsel for the parties. The role assigned to the acquitted accused and that of appellant Narbir is almost identical except that much before the occurrence, he had given electric shocks to his wife Poonam PW-8. On this count, no charge under Section 498-A IPC has been drawn against Criminal Appeal No.68-SB of 2003 8 appellant Narbir in the present case. Even if it is stated in the FIR that Sunita had told that accused were demanding two scooters, it has not been specified for whom they were required. Thus, it will not make a distinction in the case of acquitted co-accused and that of the present appellant Narbir. Hence, as a matter of abundant caution, benefit of doubt is extended to appellant Narbir and he is acquitted of the charges.
However, deceased Sunita has died within seven years of her marriage. The accused were demanding scooters. Section 113-B of the Indian Evidence Act, 1872 is attracted and a presumption can be drawn against appellant Dalbir. The deceased has died an unnatural death by hanging herself. Section 304-B IPC states that for the purposes of an offence punishable under this Section, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (hereinafter referred to as, 'the Act'). The Act was amended by Act No.43 of 1996 and in Section 2 of the Act, words 'or any time after the marriage' were added. Therefore, even if the accused had pressurized the complainant to part with Rs.1.00 lakh and later-on Rs.50,000/- as a loan, the same is to be considered as dowry falling within the ambit of Section 2 of the Act. Hon'ble the Apex Court in 'Prem Kanwar v. State of Rajasthan' 2009(3) SCC 726 has 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 Criminal Appeal No.68-SB of 2003 9 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 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."
Thus, all the ingredients of an offence punishable under Section 304-B IPC are fully established against appellant Dalbir.
Counsel for the appellants has submitted that Section 304-B IPC prescribes a minimum sentence of seven years rigorous imprisonment and there is no extraordinary circumstance in this case to award ten years rigorous imprisonment to appellant Dalbir. Counsel has submitted that occurrence, in the present case, pertains to the year 2000 and appellant Dalbir has suffered mental pain and agony of a protracted trial for more than eleven years. Furthermore, the trial Court in the order of sentence has given no specific reason to award the maximum sentence. Therefore, this Court is of the opinion that in case the sentence awarded upon appellant Dalbir is reduced from ten years to seven years rigorous imprisonment, it will serve the ends of justice. Ordered accordingly.
Criminal Appeal No.68-SB of 2003 10
To conclude, the appeal qua appellant Narbir is accepted. Conviction recorded and the sentence awarded to him by the trial Court is set aside and he is acquitted of the charges. However, there is no merit in the appeal qua appellant Dalbir and accordingly, the same is hereby dismissed, subject to the modifications in sentence noticed above.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 22, 2011 rps