Punjab-Haryana High Court
Roshan Lal vs State Of Haryana on 20 October, 2011
Author: L. N. Mittal
Bench: L. N. Mittal
Criminal Appeal No.1161-SB of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1161-SB of 2001
Date of Decision : 20th October, 2011
Roshan Lal
.... Appellant
Versus
State of Haryana
.... Respondent
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL.
Present: Mr. Tapan Yadav, Advocate for the appellant.
Mr. Anil Kumar, Deputy Advocate General, Haryana.
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L. N. MITTAL, J. (Oral)
Convict Roshan Lal has filed the instant criminal appeal to assail his conviction and sentence ordered by learned Sessions Judge, Gurgaon vide judgment dated 15.09.2001and order dated 18.09.2001 thereby convicting the appellant under Sections 498A and 304B of the Indian Penal Code (in short, 'IPC') and sentencing him to undergo rigorous imprisonment for seven years under Section 304B IPC and to undergo rigorous imprisonment for two years and to pay Rs.2,000/- and in default thereof, to undergo further rigorous imprisonment for three months under Section 498A IPC. Both the substantive sentences have been ordered to run concurrently. By the same judgment, appellant's father and co-accused Jiwan Lal stands acquitted.
Prosecution case in brief is as under:
Marriage of Shimla since deceased was performed with the Criminal Appeal No.1161-SB of 2001 -2- appellant on 20.04.1996. Sufficient dowry as per status of her father Chander Pal-complainant was given in the marriage. But the appellant and his father were not satisfied with the dowry. Immediately after the marriage, they started making demand of scooter from Shimla. She was subjected to beatings for the same. In the winter of 1998, appellant left Shimla at her parental home in village Aklimpur and told the complainant that if scooter was not given in dowry, the complainant should keep his daughter with him. In November 1998, the complainant left his daughter Shimla at the house of appellant in Devi Lal Colony, Gurgaon after persuading both the accused with the plea that the complainant has other issues and is poor and unable to give scooter. However, again in January 1999, the appellant again left his wife Shimla at her parental home. The complainant and his family members pleaded with the appellant without any result. On 24.06.1999, the complainant and his younger brother Rajpal along with Shimla went to appellant's house in Devi Lal Colony, Gurgaon and tried to persuade the appellant and his father but they did not agree. However, Shimla was left in the matrimonial home. The appellant and his father had even sold the dowry articles of Shimla for purchase of liquor because they are drunkards. On 27.07.1999, on receiving information that Shimla had been burnt to death, the complainant and his brother Rajpal and wife Chandro visited house No.2067, Sector 10A, Gurgaon where the accused had shifted in rented premises for the last few days. Shimla was found lying dead with burns. The complainant reported the matter to the police by making statement alleging that both the accused had burnt Shimla to death for not satisfying their demand of scooter. On the said statement, Criminal Appeal No.1161-SB of 2001 -3- FIR was registered and investigated. Inquest report of the dead body was prepared. Post-mortem was conducted on the dead body. There were dermo-epidermal burns all over the body except both soles and small part in middle front of right thigh. Cause of death was ante mortem burns which were sufficient to cause death in natural course of life. Statements of witnesses were recorded. Both the accused were arrested on the same day. On completion of investigation, report under Section 173 of the Code of Criminal Procedure (in short, 'Cr.P.C.') was presented for prosecution of appellant Roshan Lal and his father Jiwan Lal under Section 304B read with Section 34 IPC.
Charge under Sections 498A/34, 304B and 302/34 IPC was framed against both the accused. They pleaded not guilty and claimed trial.
To prove the guilt of the accused, the prosecution examined 12 witnesses.
SI Daya Nand PW-1 stated that he recorded formal FIR in this case.
Head Constable Jagdish Chand PW-2 and Constable Inder Parshad PW-3 tendered their affidavits in evidence being formal witnesses.
Dr. Mahesh Parkash, PW-4 stated that he conducted post- mortem examination on the dead body of Shimla.
Amit Kumar, Photographer PW-5 proved photographs snapped by him.
Constable Naresh Kumar, Draftsman, PW-6 stated that he prepared scaled site plan of the place of occurrence.
Head Constable Surat Singh, PW-7 stated that he had handed Criminal Appeal No.1161-SB of 2001 -4- over special report of the case to Ilaqa Magistrate without delay.
SI Murari Lal PW-8 partly investigated the case and stated about the same.
Chander Pal-complainant PW-9 (father of the deceased) and Rajpal PW-10 (uncle of the deceased) broadly stated according to the prosecution version.
Kishan Singh PW-11 was witness of alleged extra judicial confession made to him by both the accused, but this witness did not support the prosecution case. He stated that Jiwan Lal had come to him and told that his daughter-in-law had died of burns. On his request, the witness accompanied him to his house where police was already present. Police arrested both the accused. The accused had not told him as to in what manner Shimla had died. He was declared hostile and was cross-examined by Public Prosecutor, but he denied the prosecution version that both the accused had made extra judicial confession to him that they had poured kerosene oil on Shimla and burnt her during preceding night as their demand of scooter was not met.
SI Inderjeet PW-12 stated about investigation of the case conducted by him.
The accused in their examination under Section 313 Cr.P.C. admitted that marriage of Shimla was solemnized with appellant Roshan Lal on 20.04.1996, but denied all the other incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent.
They did not lead any evidence in their defence.Criminal Appeal No.1161-SB of 2001 -5-
Learned Sessions Judge, Gurgaon vide impugned judgment dated 15.09.2001 acquitted accused Jiwan Lal but convicted Roshan Lal under Sections 498A and 304B IPC and vide order dated 18.09.2001, imposed sentence on convict Roshan Lal as already noticed hereinbefore. Feeling aggrieved, convict Roshan Lal has filed the instant criminal appeal.
I have heard learned counsel for the parties and perused the case file with their assistance.
Learned counsel for the appellant by referring to statement of complainant Chander Pal PW-9 contended that demand of scooter was allegedly made in January 1999 whereas marriage of the deceased with appellant had taken place on 20.04.1996 and there was no demand prior to it. It was also contended that both the parties were labourers and no dowry was given in marriage which was a simple marriage. It was also submitted that there was no demand of dowry even at the time of marriage. It was also argued that no Panchayat was convened regarding alleged demand of dowry and cruelty nor any complaint was made to the police about it. It was canvassed that there is no allegation that any dowry article was entrusted to the accused or any dowry article was recovered from them. Learned counsel for the appellant also contended that there is contradiction in the statement of prosecution witnesses regarding time of intimation given by the complainant to the police and regarding time of arrest of the accused persons. According to complainant Chander Pal, he received information at about 6.30 am and immediately telephoned the police and both the accused were arrested at about 10.00am, but SI Inderjeet PW-12 stated that he received VT message at 12 noon and the accused were arrested by him at Criminal Appeal No.1161-SB of 2001 -6- about 6 pm. It was thus contended that this time was consumed to concoct false story. It was also pointed out that deceased had studied upto 5th standard and, therefore, she could have written letter to her father as well as to the police, but no such letter was written by her. It was also pointed out that an empty can was seized by the police from the spot vide memo Exhibit PH after sealing the can. SI Inderjeet PW-12 stated that after sealing the can, he had handed over the seal to Rajpal, but this fact of giving seal to Rajpal is not mentioned in the memo. It was also contended that no smell of kerosene oil was coming from the dead body. It was pointed out that it was accidental fire as the deceased was working on stove. Learned counsel for the appellant also submitted that appellant and his father earlier lived in a small colony, but their financial position having improved, they shifted to rented premises in house No.2067, Sector 10A, Gurgaon and therefore, there was no question of demand of dowry. Reliance has been placed on judgment of Hon'ble Supreme Court in the case of Durga Prasad & another versus State of M.P., 2010(3) RCR (Criminal) 219.
On the other hand, learned State counsel contended that all ingredients of the offence of dowry death are proved from the statements of Chander Pal PW-9 and Rajpal PW-10 coupled with other evidence.
I have carefully considered the rival contentions. Necessary ingredients of dowry death as defined under Section 304-B IPC are:
(i)Death of woman by burns or badly injury or occurs otherwise than under normal circumstances;
(ii) Death within seven years of her marriage; Criminal Appeal No.1161-SB of 2001 -7-
(iii)Soon before her death, she was subjected to cruelty or harassment by her husband or his relative for or in connection with, any demand for dowry.
In the instant case, marriage of deceased Shimla with appellant Roshan Lal having taken place on 20.04.1996 is proved from the prosecution evidence and has also been admitted by the appellant in his statement under Section 313 Cr.P.C. Death of Shimla took place on 27.07.1999 i.e. 3 years 3 months after her marriage. In other words, her death took place within 7 years of her marriage. It is proved and is also undisputed that her death took place on account of burns. Accordingly first two ingredients of the offence of dowry death as noticed hereinbefore are fully established and are not in controversy.
As regards the remaining third ingredient of the offence of dowry death, the same is also fully proved against the appellant from the statements of Chander Pal PW-9 (father of the deceased) and Rajpal PW-10 (uncle of the deceased). Both of them categorically stated that the appellant and his father had been demanding dowry from the deceased and had been subjecting her to cruelty for the same. The said demand and cruelty continued till soon before the death of Shimla. In or about November 1998, the deceased was left her parental home after giving beading by the appellant and even at that time, the appellant reiterated his demand of scooter. She was then left in matrimonial home by the complainant in November 1998 by pleading with the appellant and his father that the complainant being poor could not afford to give scooter. However, again in January 1999, the appellant dropped the deceased at her parental home and Criminal Appeal No.1161-SB of 2001 -8- reiterated the demand of dowry. On 24.06.1999 i.e. about a month before the death, the complainant and his brother Rajpal left the deceased in her matrimonial home by pleading with the appellant and his father who, however, did not agree to the entreaties of the complainant and his brother. Thereafter Shimla met her fiery death on 27.07.1999 in the matrimonial home. It is thus manifest from the sequence of events that the deceased was consistently and constantly subjected to cruelty for and in connection with demand of dowry i.e. scooter till soon before her death. Thus all ingredients of the offence of dowry death are fully proved from the cogent evidence led by the prosecution. There is also presumption in this regard under Section 113 B of the Evidence Act as it has been proved that soon before her death, the deceased was subjected to cruelty and harassment for and in connection with demand of dowry by the appellant.
In the aforesaid context, it is highly significant to notice that if there had been all well for the deceased in the matrimonial home, there is no reason why father and uncle of the deceased would have lodged false case against the appellant and his father and would have deposed falsely against them. No suggestion was even put to them in this regard in their cross- examination. Even the appellant and his father in their statements under Section 313 Cr. P.C. did not allege any ground for their false implication. There is, therefore, no reason to discard the statements of Chander Pal PW- 9 and Rajpal PW-10. Their testimonies could not be impeached in their cross-examination.
It would also not be out of place to notice that since January 1999 till 24.06.1999 i.e. for about five months, the deceased had to live in Criminal Appeal No.1161-SB of 2001 -9- her parental home. This fact has not been seriously disputed by the accused in cross-examination of Chander Pal PW-9 and Rajpal PW-10. It would also depict that all was not well for the deceased in the matrimonial home.
It is also worth noticing that the deceased had a daughter aged about one and half years and was also pregnant at the time of death. She would not have committed suicide without any reason, leaving her one and half years' old daughter at the mercy of the appellant and his father and causing death of her other baby (foetus) in the womb.
FIR in this case was also lodged with promptness lending credence to the prosecution case. Chander Pal has stated that he reached the spot at about 9.30 am. Statement of Chander Pal along with police endorsement thereon concluded at 12.30 pm. Recording of statement and endorsement must have consumed some time. The FIR was thus lodged very promptly. Even special report of the FIR reached the Magistrate at 4.35pm i.e. without any delay. Consequently, it cannot be said that any time was consumed in concocting the version of the prosecution as sought to be argued by counsel for the appellant. It may be added that delay in lodging FIR is frowned upon by the courts because on account of delay, the complainant party gets time for consultation and concoction to rope in innocent persons along with the real culprit and to introduce false witnesses. In the instant case, however, appellant Roshan Lal is the sole convict. He is husband of the deceased. Consequently, question of his false implication on account of alleged delay does not arise. Question of introducing false witnesses also does not arise in the instant case because father and uncle of the deceased are the material witnesses and obviously Criminal Appeal No.1161-SB of 2001 -10- they are natural witnesses to prove the prosecution case. The discrepancy in time of giving information to the police and time of arrest of the accused is completely irrelevant because even if the accused were rounded up at 10 am as stated by Chander Pal or were arrested at 6 pm as stated by SI Inderjeet, it would not make any difference when the statement of the complaint was recorded and FIR was registered on its basis.
The contention that demand was for the first time made in January 1999 cannot be accepted. It is the prosecution case that the demand started soon after the marriage. Rajpal PW-10 has specifically stated that appellant and his father were not happy with the dowry and were protesting that scooter and fridge had not been given in the marriage. They used to maltreat the deceased. Whenever the deceased visited the parental home, she used to narrate it to her family members. Rajpal has also stated that the accused used to drop the deceased at her parental home for not meeting the demand and they i.e. complainant party used to drop back the deceased at the matrimonial home after persuading the accused. It is thus manifest from the prosecution evidence that there was constant demand of dowry and cruelty to the deceased for the same since soon after her marriage till her death. Statements of Chander Pal PW-9 and Rajpal PW-10 have to be read as a whole and holistic view thereof has to be taken. On doing so, the third ingredient of the offence of dowry death is also found proved.
Non-convening of Panchayat would mot demolish the prosecution version. It is not always necessary to convene Panchayat in such cases, although some persons do convene Panchayat. However, the complainant and his brother themselves used to drop back the deceased in Criminal Appeal No.1161-SB of 2001 -11- her matrimonial home by pleading with the appellant and his father. Non- lodging of any complaint with the police earlier is also immaterial because lodging of any such complaint with the police would have eliminated the chance of rehabilitation of the deceased in the matrimonial home.
Non-recovery of dowry articles from the appellant and his father also has no adverse bearing on the prosecution case. It is the prosecution version that the accused had in fact sold the dowry articles to satisfy their vice of consumption of liquor. Moreover, the dowry articles given in the marriage or thereafter are not in issue. The issue is regarding demand of further dowry i.e. scooter and cruelty to the deceased for the same. Accordingly non-recovery of dowry articles already given has no bearing on the instant case.
Learned counsel for the appellant himself stated that complainant's village Aklimpur is also adjacent to Gurgaon where the accused were putting up. In these circumstances, the deceased would not have written any letter to her father or other family members regarding her harassment for dowry. Moreover, the appellant used to drop the deceased at her parental home and for this reason also, there was no necessity for the deceased to have written any letter to her family. The question of writing any letter by the deceased to the police did not arise at all. If she had to make any complaint to the police, she herself could have gone to the police. However, if she had made any complaint to police, she could not have settled in the matrimonial home.
Alleged omission in the recovery memo regarding handing over of seal to Rajpal is completely immaterial. The can was empty Criminal Appeal No.1161-SB of 2001 -12- although smelling of kerosene. Even if the can had not been recovered at all, it would not have had any bearing on the prosecution case. Similarly if the seal had been kept by the Investigating Officer himself, it would also not have made any adverse effect, much less material difference, on the prosecution case. On the contrary, as per report of Forensic Science Laboratory, kerosene residues were detected in small pieces of partially burnt clothes of the deceased. It would depict that kerosene oil had been sprinkled on the deceased either by herself or by the appellant and/or his father. The occurrence took place in the house of the appellant before 6am. Only the appellant could have special knowledge of the occurrence. However, the appellant or his father did not come out with any version of the occurrence. They did not state as to how the deceased suffered such extensive burns leading to her instant death. They did not even state in their statements under Section 313 Cr.P.C. that the deceased caught accidental fire nor any such suggestion was given to the prosecution witnesses in their cross-examination. There is also not even a shred of material on record to even remotely suggest that it was accidental fire.
Judgment in the case of Durga Prasad (supra) is not applicable to the facts of the instant case. In that case, because of poverty of the couple, their marriage had been performed as part of community marriage. In the instant case, however, marriage of the deceased with the appellant was solemnized by the father of the deceased and not as part of community marriage.
For the reasons aforesaid, I conclude that the prosecution evidence is cogent and creditworthy and is sufficient to prove the guilt of Criminal Appeal No.1161-SB of 2001 -13- the appellant beyond reasonable doubt. Conviction of the appellant is thus well founded. Accordingly impugned judgment of conviction of appellant is affirmed.
As regards quantum of sentence, minimum sentence of imprisonment for 7 years as prescribed by Section 304 B IPC has been imposed on the appellant. Consequently, the question of any reduction in sentence also does not arise.
As a necessary consequence of the discussion aforesaid, I find no merit in the instant criminal appeal, which is accordingly dismissed. The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining sentence.
( L. N. MITTAL ) JUDGE 20th October, 2011 'raj'