Punjab-Haryana High Court
Hem Chander And Ors. vs State Of Haryana on 12 February, 2007
Equivalent citations: (2007)147PLR116
Author: Mehtab S. Gill
Bench: Mehtab S. Gill
JUDGMENT Arvind Kumar, J.
1. The appellants are aggrieved with the judgment and order of their conviction and sentence dated 27.1.2004 passed by Addl. Sessions Judge, Rohtak in Sessions Case No. 7 of 2003, by virtue of which all the appellants have been convicted under Sections 304B and 498A read with Section 34 of Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life for committing an offence under Section 304B I.P.C. Each of them were required to pay a fine of Rs. 10,000/- and in default thereof, further imprisonment for a period of three years has been awarded. Since the appellants were convicted for major offence i.e. Section 304B I.P.C, so, in view of the law laid down by the Hon'ble Apex Court in Smt. Shanti and Ors. v. State of Haryana , the trial court did not impose any sentence upon the appellants for committing an offence under Section 498A I.P.C.
2. First of all, prosecution version needs to be noticed.
3. Reena Devi (since deceased) was married with appellant No. 2 Sunil Kumar somewhere in the mid of year 1999, according to Hindu rites and ceremonies. Appellant Nos. 1 and 3 are the father and mother respectively while appellant No. 4 is brother of Sunil Kumar appellant. According to the prosecution, sufficient dowry was given in the said marriage, but the appellants dissatisfied with the same, started harassing and maltreating Smt. Reena Devi. A demand of cash for purchasing plot and motorcycle was put forth by all the appellants. The aforesaid demand as well as harassment, meted out to her at the hands of her husband and in-laws, was conveyed by Smt. Reena to her brother Dinesh and mother Sona Devi, since her father Randhir had already expired. As a consequence of said demand, a Panchayat was convened and the matter was settled. Smt. Reena was sent to her nuptial home along with appellant No. 2 Sunil Kumar. But there was no change in the circumstances and Smt. Reena was again harassed and beaten up by all the appellants in relation to demand of dowry in the shape of cash of Rs. 20,000/- or sometimes they demanded Rs. 30,000/-.
4. The prosecution version further highlights the instance when Smt. Reena Devi was again given beatings for not satisfying the demand of dowry of her in-laws. This time again, the matter was settled with the intervention of Panchayat and Smt. Reena was sent to her matrimonial home with Sunil Kumar.
5. Thereafter, now what the prosecution version is that on 22.10.2002 Smt. Reena was admitted in P.G.I.M.S., Rohtak with 95% burns. A VT message (Ex.PR) was received in the police station Sampala, upon which A.S.I. Mahender Singh (PW. 14) along with other police officials went to P.G.I.M.S., Rothak. After obtaining the opinion about the condition of patient Smt. Reena Devi from Dr. Pardeep Kumar (PW.2), who declared her fit to make statement vide Endst. Ex.PC/1, A.S.I. Mahender Singh approached the Illaqa Magistrate and moved application (Ex.PB) for recording the statement of Smt. Reena, upon which Smt. Kanchan Nariala (PW.1), who was posted as J.M.I.C, Rohtak reached P.G.I.M.S., Rohtak. After obtaining opinion about the fitness of Smt. Reena and taking her consent, she recorded the statement of Smt. Reena Devi, in the presence of attending doctor. In her statement, which was in question-answer form, Smt. Reena had disclosed that her marriage was taken place about three years ago and except her and her husband, her father-in-law, mother-in-law and brother-in-law are also residing in the house. When asked about the occurrence, she told PW. 1 that on that every day at about 9.15 a.m. she was given beating by her husband, father-in-law, mother-in-law and brother-in-law. Thereafter, they all poured kerosene oil on her and sat her ablaze. None of them took her to hospital rather her neighbourers forcibly took her to hospital. She further replied that all of them had taken her jewellery and asked her to bring money sometimes Rs. 20,000/- or Rs. 30,000/-; all of them have burnt her and were demanding money. Prior thereto she also made oral dying declaration before Dinesh, Vijaypal and Smt. Sona Devi stating that Sunil poured kerosene oil and set her on fire whereas others caught hold of her.
6. Her said statement was made the basis of registration of first information report (Ex.PM) against all the appellants initially for offences under Sections 498A, 307 read with Section 34 I.P.C. PW.1 Mahender Singh then reached the place of occurrence photographed from Harish Sharma (PW.13) and took into possession broken pieces of bangles of Reena, a match box, burnt piece of her clothe, one plastic cane of 5 litres having about half litre kerosene oil in it, so recovered from the spot. He also prepared the rough site plan (Ex.PQ) of the place of occurrence and on return deposited the case property in the police station. Thereafter, he recorded the statements of witnesses by means of Section 161 Cr.P.C.
7. On 28.10.2002 Smt. Reena succumbed to her burn injuries. Inquest report (Ex.PG) of the dead body of Smt. Reena was prepared by A.S.I. Mahender Singh and post-mortem examination on the dead body was conducted by Dr. Kulpratibha (PW.4) and one Dr. Paramjit. In her opinion, Smt. Reena had died due to ante mortem burns and its complications which were sufficient to cause death in ordinary course of nature.
8. The accused persons were arrested and thereafter, on completion of usual formalities of investigations, the prosecution filed challan against all the accused-appellants under Sections 498A/304B read with Section 34 I.P.C.
9. After commitment, charges under Sections 498A/304B read with Section 34 I.P.C. was framed by the Court of Sessions against all the accused-appellants.
10. In order to prove its case the prosecution examined PW.l Ms. Kanchan Nariala, J.M.I.C, Rohtak, PW.2 Dr. Pardeep Kumar Subramaniyam, PW.3 Dr. Vivek Ahuja, PW.4 Dr. Kulpratibhiya, P.W.5 Const. Sumit Kumar, PW.6 H.C. Ram Bhagat, PW.7 Const. Jagbir Singh, PW.8 Const. Satpal, PW.9 H.C. Dharambir Singh, PW.10 Dinesh, PW.11 Vijay Pal, PW.12 Sona Devi, PW.13 Harish Sharma, PW.14 A.S.I. Mahender Singh and PW.15 Dr. Amarjit Singh. Besides, report of F.S.L. (Ex.PP) was tendered in evidence.
11. When examined under Section 313 Cr.P.C, all the accused-appellants pleaded their false involvement in the case. According to appellant Sunil his marriage with Smt. Reena was a simple marriage. Smt. Reena was having mental problem for which she was treateb d at P.G.I.M.S., Rohtak. Smt. Reena mis-behaved with him and his family members as well. At one point of time, he was forcibly retained at his matrimonial house and beaten and after rescuing he lodged a complaint against the family members of Reena. However, he withdraw the case on their begging pardon. He also filed divorce petition against Smt. Reena. Smt. Reena had already taken away all the jewellery and ornaments due to strained relations. A day prior to the occurrence, Smt. Reena was left at his house by 4-5 persons forcibly, where, the next day, she committed suicide by pouring kerosene oil on her. He further pleaded that at the time of occurrence he was at his working place and that he and his wife were residing separately with his parents and his brother. Due to strained relations, his father had divested him and his wife from his properties and liabilities. The family members of Smt. Reena demanded for depositing Rs. 1,50,000/- and asked for parting some property in her name, to which his father had not agreed. On account of this, he and his family members have been falsely implicated.
12. The other appellants-accused also took almost similar stand in their statements under Section 313 Cr.P.C. They also claimed to be not present at the spot, at the time of occurrence.
13. In their defence, the accused-appellant got examined DW.l Rajinder Sikka, DW.2 Satto @ Satnarain and DW.3 Suraj Bhan and DW.4 Satbir Singh. Besides, document i.e. copy of petition filed under Section 13 of Hindu Marriage Act, instituted on 2.92002 (Ex.DG) had been tendered.
14. The learned trial court vide the impugned judgment held all the appellants guilty under Section 498A/304B read with Section 34 I.P.C. and sentenced them in the manner indicated above, which has necessitated the filing on instant appeal by the appellants.
15. We have heard the learned Counsel for the appellants as well as learned State counsel at length and have also gone through the record carefully.
16. At the very outset it is noticed that despite there being dying declaration as well as oral dying declarations, there is no charge under Section 302 I.P.C. It has been pointed out by learned State counsel that since the imprisonment for life has been awarded and as such, it causes no prejudice either to the prosecution or to the complainant party.
17. Section 304B of the Indian Penal Code lays down that where the death of a woman is caused by any bums 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 in connection with any demand of dowry, such death shall be called "dowry death". Section 113B has also been inserted in the Indian Evidence Act. It deals with the presumption of "dowry death" and proclaims that when the question is whether a person has committed a dowry death of a woman and it is shown that soon before her death, such woman had been subjected by such person to demand of dowry, the court shall presume that such person had caused "dowry death". It can, therefore, be seen that irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the "dowry death" provided the other requirements mentioned above are satisfied. The very thrust of the counsel for the appellants is that there is no evidence that soon before the death the deceased was subjected to cruelty and harassment in connection with demand of dowry, hence such evidence falls short of the requirement to establish the offence punishable under Section 304B I.P.C. The contention is meritless. A conjoint reading of Section 113B of the Indian Evidence Act and Section 304B I.P.C. show that there must be material to show that soon before death, victim was subjected to cruelty or harassment. Expression "soon before" is very relevant where Section 113B of the Indian Evidence Act and Section 304B I.P.C. are pressed into service. But, at the same time, "soon before" is relative terms which is required to be considered under specific circumstances of each case and no straight jacket formula can be laid down by fixing any time limit. These words imply that the interval should not be too long between time of making the demand and the death. It contemplates reasonable time which as earlier noticed, has to be understood and determined under the peculiar circumstances of each case. In other words, demand of dowry, cruelty or harassment based upon such demand and the date of death should not be too remote in time, under the circumstances, be treated as having become stale enough. The deceased Smt. Reena had a married life of little more than 3 years. In the instant case, apart from the dying declaration, which not only relates to the event of the date of occurrence, but also regarding demand of money the prosecution has examined PW.10 Dinesh, PW.11 Vijaypal and PW.12 Smt. Sona Devi, the brother, maternal uncle and mother of the deceased respectively. The tenor of their evidence suggests that though there was no demand prior to the marriage or at the time of marriage but after 15 days of the marriage, the demand of cash for the purpose of motorcycle and a plot was raised and the said demand of Rs. 20,000/- - 30,000/- continued till a compromise was effected in the year 2001 and even after that it persisted. Subsequently, a quarrel having been taken place between Sunil appellant and Dinesh (PW.l) on 18.8.2002 i.e. about two months prior to death of Smt. Reena, at the parental house of the deceased on the issue of expenses upon the studies of the deceased. No doubt, PW. 10 Dinesh, PW.11 Vijaypal and PW.12 Sona Devi, after having been recalled for further cross-examination, resiled from their previous statements made in the Court, stating that their previous statements were made under police pressure. Reena was tutored. There was also threat to the deceased by the police and the death of Reena was accidental, but no undue importance can be given to such like statements and this puts Court to guard as to which of the statement is correct and the statement which is corroborated from other reliable evidence can be used against the accused. The relations between the deceased and her husband i.e. appellant Sunil were not cordial after the marriage. This led Hem Chandra to make it publicise through a news item published in daily newspaper "Punjab Kesari" (Ex.DE) to the effect of having no concern with his son Sunil and his wife Reena and further divesting them from his moveable and immovable properties. Further, Sona Devi, mother of the deceased had moved an application against appellant Sunil at police post Dighal relating to harassment and demand of money from her daughter Reena. A compromise had been affected and Sona Devi moved another application Mark A in relation to the compromise to the effect that Sunil has felt apology and assured that he will not harass his daughter in future. This compromise has not been disputed by the defence and the appellant Sunil in his statement recorded under Section 313 Cr.P.C. has also mentioned about the compromise and a clear cut suggestion has also been put to PW.10 Dinesh that a compromise was effected in the year 2001 in the police post Dighal. The matter does not rest here. Admittedly, on 18.8.2002 on the occasion of the birth of a son to PW.l Dinesh, accused-appellant Sunil and deceased Reena had gone there and situation aggravated there as the accused-appellant Sunil refused to finance the further studies of Reena. This led a quarrel between Dinesh and Sunil, for which Sunil was detained over-night and the next day he got a case registered against Reena, Dinesh and other on the basis of statement Ex.DF. Then filing a divorce petition by Sunil on 2.9.2002 seeking dissolution of marriage against Reena also strengthen the factum of their strained relationship. Subsequent thereof the present occurrence had taken place on 22.10.2002 resulting into death of Smt. Reena on 28.10.2002. Therefore, the chain of events suggest that she was not living in a congenial atmosphere in her matrimonial home, obviously on account of mal-treatment, harassment etc. and of course for demand of dowry, for which a compromise, referred earlier thereto,had been affected. Thus, her death cannot be said to be too remote and stale enough which could not attract the ingredients of "soon before" her death. The words "soon" embrace the series of incidents forming part of the same transaction which culminated in the death of the concerned woman and the word "soon" cannot be interpreted to mean that cruelty or harassment should be just before death. In other words, if the bride is given disrespect from time to time and being tortured or harassed on account of the demand, no hard and fast rule can be fixed by the Court of law while interpreting the words "soon before the death". The sequence of events suggests that cruelty and harassment, for said reasons, were alive till her death. The argument that, admittedly, there was no demand before or at the time of marriage and as such, there was no occasion to demand the same, is also of no avail. There cannot be a thumb of rule that the demand of dowry could not be raised after the marriage. Where there was no demand of dowry at the time of marriage, it does not mean that demand cannot be raised after the marriage by the greedy husband, if the dowry was not to his satisfaction.
18. The learned Counsel for the appellants has assailed the genuineness of the dying declaration on the ground that there is no certification of the Doctor concerned with regard to the state of mind of the declarant. The same is not sustainable. This controversy has now been set at rest by a Constitution Bench of Hon'ble Supreme Court in Laxman v. State of Maharashtra , holding that certificate of the doctor that the patient was conscious is sufficient and it is not necessary that the certificate should indicate that patient was in a fit state of mind to make the statement. The essentials are the fitness and the certificate of the doctor in the form of certificate and the memorandum before recording the dying declaration. In the instant case, apart from the certificate Ex.PA of PW.2 Dr. Pardeep Kumar Subramaniyam about the fitness of the patient Reena to make Court statement, there is also evidence of PW.1 Ms. Kanchan Nariala, the then J.M.I.C., Rohtak, who was deputed to record the statement of patient Smt. Reena. A close scrutiny of her statement suggests that after obtaining the certification from the doctor, she also obtained the willingness of patient Reena to make the statement and made her endorsement Ex.PA/2. After satisfying herself that patient is willing to make her statement voluntarily, she recorded her statement Ex.PA/4, after sending relations and the police officials outside except the attending doctor i.e. PW.2 Dr. Pardeep Kumar, who remained throughout during the course the statement of Smt. Reena was recorded and had also given certificate Ex.PA5 that she remained fit during the statement. Prior thereto the Magistrate had put certain questions from her to know her mental faculty and only recorded her statement after finding her fit to make the statement. The evidence of PW.1 coupled with endorsement Ex.PA/6 suggests that Smt. Reena made her statement voluntarily and it was read over to her and she thumb marked it after admitting its correctness. PW.1 Ms. Kanchan Nariala, a Judicial Magistrate is disinterested witness and a responsible officer. There is no circumstance or material on record to suspect that she had any animus against the accused or in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Judicial Magistrate cannot be doubted. However, dying declaration should be free from chances of tutoring and prompting. Learned Counsel for the appellant has referred to the statements of PW.10 Dinesh and PW.11 Vi-jaypal recorded after recalled for further cross-examination wherein they claimed to have tutored Reena and on the strength of the same, it has been argued that no reliance can be placed on the dying declaration. We have scanned this aspect of arguments. Leaving apart the statements of PW.10, PW.11 and PW.12, so recorded after they were being recalled for further cross-examination, it is itself the case of the prosecution, as emerged from the statements of PW. 1 Ms. Kanchan Nariala and PW.2 Dr. Pardeep Kumar Subramaniyam that the relations were already with the deceased prior to recording of the dying declaration. It can also be not forgotten that just two months prior when Sunil and deceased Reena visited her parental house on the occasion of birth of son Dinesh, as a result of a quarrel between Sunil and Dinesh, appellant Sunil got registered a case against Dinesh, Reena and other family members. In such a situation tamper runs high and an every attempt must be possibly made to rope in the entire family of the husband. As in this case almost all the family members of the husband are attributed one role or the other so as to implicate them. Under these circumstances, duty is cast upon the Court to rift the grain from the chaff and find out if some of the accused have been falsly roped. Conviction can be recorded on the basis of dying declaration alone but the same must be wholly reliable. When suspicion arises as regards the correctness of the dying declaration or the dying declaration does not reveal the real truth it can only be considered as piece of evidence in which event conviction may not be rested only on the basis thereof and the Court before convicting may not be rested only on the basis thereof and the Court before convicting an accused on the basis thereof would look for some corroborative evidence. In the present case, the dying declaration with the backdrop of possible tutoring can't be said to be of impeachable character. No doubt PW.10 Dinesh, PW.11 Vijaypal and PW.12 Sona Devi, when recalled for further cross-examination had resiled from their previous statements made before the police and in the Court on 4.4.2003 and thus, were confronted with their previous statements made by them before the Court in cross-examination by the Public Prosecutor, which is otherwise requirement under law and the said statements are admissible in evidence. The witnesses claimed to have made their previous statements under police pressure, is not believable as no explanation has been given as to which of the police official had pressurized from to make the statements on 4.4.2003 in the Court. They have also not submitted any explanation as to what had prompted them to make statement volte face and what circumstances made them released from the police pressure. The Court cannot overlook the fact that they had resiled from their previous statements either having been won over by the accused for monetary gain or under pressure. Their said statements are suggestive of the harassment, beatings to Smt. Reena for the purpose of demand of cash for purchasing motor-cycle and plot and even after a compromise taken place with the intervention of Panchayat, the demand of Rs. 20-30,000/- persisted. This obviously for the purpose of purchasing either the motor cycle or the plot, for which there is also a reference in the dying declaration made by the deceased Smt. Reena, which has been referred earlier. However, with the available evidence, referred to above, some of which is otherwise not disputed, the case of Hem Chandra, Raj Kalan and Anil appellants, is distinguishable from that of Sunil. Apart the allegations levelled against them are omnibus. Hem Chandra appellant, by way of publication had already shown no concern with his son Sunil and his wife Reena. Sona Devi, the mother of the deceased, by way of an application had levelled allegations only against appellant Sunil in which, as discussed above, admittedly a compromise had taken place. As referred to above, just about two months prior to the present occurrence, a quarrel had taken place between Dinesh and Sunil alone in connection with further studies of Reena and then filing of divorce petition by Sunil himself against Smt. Raj Kalan, father-in-law and mother-in-law respectively as well as brother-in-law i.e. appellant Anil had nothing to do with the said demand of money for motor cycle or a plot. Therefore, as a measure of abundant precaution, extending benefit of doubt to appellants Hem Chandra, Raj Kalan and Anil, they are acquitted of the charges levelled against them. They be set at liberty if not required in any other case. The instant appeal, to the extent of aforesaid appellants is allowed.
19. So far as husband of the deceased i.e. accused-appellant Sunil is concerned, the sequence of events, referred to above, points out accusing finger towards him. He, in his statement recorded under Section 313 Cr.P.C. took the stand that Smt. Reena had committed suicide whereas in the cross-examination of the witnesses, a specific suggestion has been put to them regarding the death of Smt. Reena, accidentally. Thus, he himself is not sure with regard to his defence as to how Smt. Reena died. The death of Smt. Reena occurred otherwise than under normal circumstances. Admittedly, she died within 7 years of her marriage. It is duly proved that soon before her death she was subjected to cruelty and mal-treatment in connection with demand of dowry. All the essential ingredients of Section 304B I.P.C. are fully satisfied with the availability of the presumption in terms of Section 113B of the Indian Evidence Act. Therefore, the instant appeal, qua the appellant Sunil is dismissed.