Punjab-Haryana High Court
Narender Kumar vs State Of Haryana on 25 July, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Appeal No.352-SB of 1996
{1}
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.352-SB of 1996
Date of Decision: 25th July, 2013
Narender Kumar
...Appellant
Versus
State of Haryana
...Respondent
Criminal Appeal no.209-DBA of 1997
State of Haryana
...Appellant
Versus
Smt.Shanti Devi & Others
...Respondents
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.A.S.Cheema, Advocate,
for the appellant -Narender Kumar
in CRA-352-SB-1996 and for respondents
in CRA-209-DBA-1997.
Mr.Anupam Sharma, AAG, Haryana.
***
Naresh Kumar Sanghi, J.
By way of this judgment, Criminal Appeal No.352-SB of 1996 (Narender Kumar vs. State of Haryana) and Criminal Appeal No.209-DBA of 1997 (State of Haryana vs. Smt.Shanti Devi & Others) are being disposed of since both the appeals are arising out of one and the same judgment dated 09/12.04.1996 Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {2} passed by the learned Sessions Judge, Rohtak.
Criminal Appeal No.352-SB of 1996 has been filed by Narender Kumar (appellant) challenging his conviction and sentences for the offences punishable under Sections 306 and 498-A, IPC which are as under:-
Sections Sentence (R.I) Fine In default (R.I) 306, IPC Five years Rs.250/- Three months 498-A, IPC Three years Rs.250/- Three months Both the substantive sentences were ordered to run concurrently.
In Criminal Appeal No.209-DBA of 1997 filed by the State of Haryana, a prayer has been made for setting aside the judgment of acquittal qua Shanti Devi (mother-in-law), Mitter Sain and Raj Kumar (brothers-in-law i.e. Jeth and devar), Usha and Poonam (sisters-in-law i.e.Jethani and Devrani). The appeal was admitted qua Shanti Devi (mother-in-law) only vide order dated 18.02.1997 passed by the Hon'ble Division Bench of this Court.
Before narrating the facts of the case, it is essential to know the names and their inter-se relations of the concerned persons. Narender Kumar (appellant) is husband of Sarla (since deceased); Ms. Ansul, aged about 10 years, was daughter of Narender Kumar and Sarla, who had also died in the same Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {3} incident; Roop Chand (PW6) is father of Sarla while Rajender Jain (PW7) is her brother; Parkash Chand Jain (PW8) is the maternal uncle of Sarla; Shanti Devi, who is respondent-accused in the appeal filed by the State of Haryana, is the mother-in-law of Sarla; Mitter Sain and Raj Kumar are brothers-in-law (Jeth and Devar) while Usha and Poonam are sisters-in-law (Jethani and Devrani) of Sarla (since deceased).
The marriage of Narender Kumar (appellant) was solemnized with Sarla (since deceased) in the year 1983. On the intervening night of 24th and 25th September, 1994, Sarla put herself and her daughter, Ansul, on fire and as such, both of them had died.
On 25th September, 1994, Roop Chand (PW6) suffered the following statement before the police:-
"I am resident of the above address. I have three daughters and two sons. Sarla Devi was youngest amongst the daughters. The marriage of my daughter Sarla was solemnized with Narender Kumar, son of Ram Chander Jain r/o Shastri Nagar, Rohtak, in the year 1983 according to Hindu rites and rituals. I had given the dowry according to my capacity. After marriage, Narender Kumar husband of Sarla, Mitter Sain, brother-in-law("Jeth"), Raj Kumar brother-in-law ("Devar"), Shanti Devi mother-in-law, Usha sister-in- law ("Jethi) and Poonam sister-in-law ("Deverani") Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {4} used to tease and gave beating to my daughter Sarla for demand of dowry and thrown her out of the matrimonial house. In the presence of my brother Tara Chand, I had given cash to them on their demands. In spite of that they all used to pass comments and beat my daughter. Brotherly Panchayat had assembled about four years ago at Rohtak and when the above mentioned people did not agree to the proposal then a divorce petition was presented in the Court of Sh.R.S.Bhatia in the year 1988, as per the advise of brotherly Panchayat, At the intervention of learned Sessions Judge they promised not to harass Sarla in future, the petition was withdrawn. Sarla along with minor daughter, Ansul was sent with her in- laws. After keeping seven/eight months peacefully, they again started harassing and beating her and asked her to bring twenty thousand rupees. When my daughter refused, Narender Kumar, Mitter Sain, Raj Kumar, Shanti Devi, Usha and Poonam gave beatings and thrown Sarla out of the house. Sarla along with her girl come to our house at Jind in three clothes. Sarla told the whole story to me, my wife Nainawati and her brother Rajender. After hearing the story my brother Tara Chand came to Rohtak then the above mentioned accused asserted that the money was needed for the business of Narender and you must pay the money. I showed my inability to pay the money but when they said that the girl would not be settled then I agreed to pay an amount of Rs. 15,000/-Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh
Criminal Appeal No.352-SB of 1996 {5} so that my daughter may be settled. I paid the money to Narender and sent my daughter to Rohtak. After having kept my daughter peacefully for a short while, they again started taunting and giving beatings to my daughter. Sarla also told that Narender used to sleep in a separate room and dance on the fingers of her sister-in-law, Usha wife of Mitter Sain as he had illicit relations with her. They had been continuously harassing my daughter. A month earlier my son Rajender visited Rohtak to see his sister. At that time, Sarla told him that she was living in a hell and she should be taken away but Rajender pacified her and returned home. On reaching home, Rajender told that Sarla was saying that to get rid of her, she might be killed. Then I came to Rohtak and Ram Chander, father of Narender, told that there would not be such thing in future and it would not be proper to see Narender and others as feud would be increased. Today, in the morning my brother-in-law Parkash Chand who lived at Rohtak rang up me at Jind and told that he had come to know that Sarla and her daughter, Ansul, had been set on fire. The incident took place at night. Narender etc did not inform me about the burning of Sarla and Ansul. On hearing the said news, we reached Rohtak at the house of Narender but they did not tell about the incident and directed us to go to the Medical College and Hospital, Rohtak, where we came to know about the said facts. I reached there and heard that my daughter and Ansul Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {6} had been killed by Narender etc. by setting them on fire."
On the basis of the said statement, FIR No.408, dated 25.09.1994, for the offences punishable under Sections 306, 406 and 498-A read with Section 34, IPC, was registered at Police Station, Civil Lines, Rohtak. After conducting the inquest proceedings, the dead bodies were subjected to postmortem. The Forensic Experts examined the scene of crime; photographs of the spot were clicked; rough site plan was prepared; burnt pieces of clothes, mattress (gadella), a tin containing kerosene oil, match sticks, match box etc. were taken into police possession. Statements of the witnesses were recorded; after arrest of the appellant, Narender Kumar and his co-accused, the investigation was completed; the charge-sheet was prepared and presented before the learned Area Judicial Magistrate. Finding that offence under Section 306, IPC, was exclusively triable by the Court of Session, the case was committed to the latter court.
Learned Sessions Judge framed the charges for the offences punishable under Sections 306, 406 and 498-A read with Section 34, IPC, against the appellant, Narender Kumar and Shanti Devi besides four others accused persons, to which they pleaded not guilty and claimed trial.
Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {7} In order to substantiate its allegation, the prosecution examined the following witnesses:-
PW-1 Sub Inspector Satbir Singh: He had partly investigated the matter and deposed in detail about the investigation conducted by him.
PW-2 Randhir Singh: He deposed that on 25.09.1994, on receipt of a writing, he recorded the formal FIR (Ex.PD/1). He has proved the writing (Ex.PD) with endorsement (Ex.PD/2).
PW-3 Dr.K.C.Aggarwal: He deposed that on 25.09.1994, at about 4.30 p.m., he along with Dr.R.K.Chaudhary conducted the postmortem examination on the dead body of Sarla wife of Narender. He found that there were superficial to deep burns all over the face, front and back of the neck, front and back of chest and abdomen, both upper limbs and both lower limbs except over soles. Scalp hair were partly burnt. Axillary and pubic hair were also partly burnt. Skin was pealed off at most of the places. It was a case of 95% fresh burns.
In their opinion, the cause of death was shock due to extensive burns and their complications. These burns were ante-mortem in nature and sufficient to Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {8} cause death in the ordinary course of nature. He had proved the copy of postmortem report (Ex.PE) conducted on the police requests (Ex.PE/1 and Ex.PE/2).
On the same day, he along with
Dr.R.K.Chaudhary, conducted postmortem
examination on the dead body of Ansul, daughter of Narender. He found that there were burns all over the scalp, face, neck, chest, abdomen, both upper and lower limbs. It was a case of 100% burns.
In their opinions, the cause of death was due to shock as a result of extensive severe burns and its complications. These burns were ante-mortem in nature and sufficient to cause death in ordinary course of nature. He had proved the postmortem report (Ex.PF).
PW-4 Dr.Amarjit Singh: On 25.09.1994 at 2.50 a.m., he medico-legally examined Sarla Devi, wife of Narender, who was brought by Pawan Jain. He found deep and superficial burns all over the body. It was a case of 100% burns. He had proved the MLR (Ex.PJ). PW-5 Dr.S.K.Sangwan, Senior Scientific Officer, Forensic Science Laboratory, Madhuban: He deposed Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {9} that on 26.09.1994, on receipt of message from the police, he visited the scene of crime, clicked the photographs of the surroundings and examined the place in the presence of Sub Inspector Hawa Singh. PW-6 Roop Chand: He is the complainant and father of Sarla (since deceased). He had reiterated his version as had been narrated to the police. PW-7 Rajender Jain: He is the brother of Sarla (since deceased). He too deposed in consonance with the statement suffered by Roop Chand (PW6). PW-8 Parkash Chand Jain: He deposed that Sarla (since deceased) was daughter of his sister and her marriage was solemnized with Narender in the year 1983. After marriage for some time, Narender and Sarla were happy and thereafter their relations remained strained. He had come to know that accused used to beat and harass Sarla. He further deposed that Sarla used to visit them and tell them that she was being harassed by Narender. In the year 1988, Sarla and Narender decided to break the marital ties by mutual consent by filing a petition for divorce but later on when the accused persuaded the parents of Sarla, the petition for divorce was withdrawn and Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {10} Sarla returned to her matrimonial home. For sometime, she was kept well but again differences started. He also deposed that on the day of death of Sarla, he came to know from some unknown person that Sarla and her daughter had been set on fire and their burnt bodies were lying in the Medical College & Hospital, Rohtak.
PW-9 Head Constable Dharam Singh: He was tendered for cross-examination.
PW-10 Head Constable Nafe Singh: He produced the daily diary register and proved entry No.39, (Ex.PQ). PW-11 Sub Inspector Hawa Singh: He is the Investigating Officer and deposed in detail about the investigation conducted by him.
PW-12 Sub Inspector Raghbir Singh: He proved list of articles (Ex.PN/1) and some letters produced by Roop Chand vide memo (Ex.PN). He recorded the statement of Roop Chand, arrested Raj Kumar and Mitter Sain on 01.10.1994. He also joined Usha and Poonam in the investigation and then formally arrested them as they were already on anticipatory bail. PW-13 Ravinder Parkash, Draftsman: He deposed that on 26.10.1994, he prepared the scaled site plan Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {11} (Ex.PT).
Learned Public Prosector gave up the prosecution witnesses, Chander Bhan, Des Raj and Naresh as having been won over while Inspector Bhup Singh, Dr.R.K.Chaudhary, Nainavati and Tara Chand were given up being unnecessary. He also tendered in evidence the affidavits of Head Constable Jagram and Constable Rajbir (Ex.PG) and (Ex.PH) respectively. He further tendered into evidence the report (Ex.PU) of the Forensic Science Laboratory and thereafter, closed the prosecution evidence.
Statements of the appellant and his co-accused in terms of Section 313, Cr.P.C., were recorded wherein they denied the incriminating evidence appearing against them and pleaded false implication. In answer to the last question, appellant Narender Kumar submitted as under:
"I am innocent. Roop Chand (PW6) had telephone number 3753 during those days whereas telephone number of my father was 73937. Roop Chand was informed by my father on telephone. I have my separate shop known as Narender Traders. My father is separate, so my brother Mittar Sain. Raj Kumar is also separate. My wife had suspicion that I had illicit relation with my bhabhi. She had also suspicion that I was having love-affairs with a girl, namely, Sonia. I had met with an accident in 1987. My leg was Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {12} fractured and I could not properly indulge in sex with my wife. She had a wrong grievance of my sex affairs with others. Because of all this, it appears that she poured kerosene oil on her daughter and thereafter committed suicide along with her daughter. In fact, there was no demand of dowry and no harassment. Letters are fabricated, false allegations have been levelled to extract money from me."
Shanti Devi-respondent/accused in answer to the last question submitted as under:-
"I am innocent. I along with my husband Ram Chander residing separate from Narender. I have been falsely implicated in this case."
In defence evidence, the following witnesses were examined:-
DW-1 Sat Narain, Accounts Officer, Telephone Revenue, Rohtak: He deposed that as per their record, from telephone No. 73937 Rohtak, a call was booked on 25.09.1994 at 4.30 a.m., for telephone No.3753 at Jind but the call could not be matured.
Again at 6.50 a.m., the similar call was booked and the same was matured which continued for three minutes.
Yet another call was booked at 5.00 a.m and the talk continued for three minutes. He had produced the Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {13} record (Ex/DA).
DW-2 Jasbir Singh: He deposed that Mitter Sain Jain had a gas connection in his name.
DW-3 Sish Pal Malik, Clerk, Telephone Department:
He deposed that on 31.03.1986, a telephone connection was released in favour of Rajender s/o Roop Chand Jain. Initial telephone Number was 3093 which was subsequently changed to 3753 on 12.04.1990. Thereafter, on change of electronics exchange, telephone number was further changed to 72053 w.e.f. 31.01.1995. He has proved the record (Ex.DB).
DW-4 Om Parkash, Building Inspector: He deposed that on 01.6.1997, Mitter Sain had submitted a site plan for approval of construction of a house and the same was sanctioned on 23.08.1997.
DW-5 Head Constable Amarjit Singh: He had brought the record of FIR No.331, dated 15.05.1986, for the offences punishable under Sections 420, 483, 485, IPC, and Section 63 of the Copyright Act, registered against Narender (appellant). DW-6 Mohinder Singh: He had produced the summoned record i.e CR No.553501 relating to Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {14} N.K.Jain.
DW-7 D.S.Narwal, Upper Division Clerk, from Income Tax Department: He deposed that he had brought the record pertaining to firm M/s Ballu Ram Ganpat Rai and that of M/s Narender Traders. He further deposed that Ram Chander had a separate firm, i.e M/s Luxmi Iron Store, Jhajjar Road, Rohtak.
DW-8 Ravi Dutt a Clerk, from the office of Deputy Excise and Taxation Commissioner, Rohtak: He produced the sales tax record for the different firms owned by co-accused of the appellant, Narender Kumar.
DW-9 Anil Kumar, a Clerk, from the office of District Food and Supply Officer, Rohtak: He proved that Ram Chander had separate ration card while Narender, Sarla and Ansul had separate ration card which was issued in the year 1992. He further proved that the different ration cards were issued in favour of the brothers of Narender and their families. DW-10 Dr.Rajesh Jain: He deposed that Narender suffered a fracture in his leg and the treatment for the same was administered by him.
Appellant Narender Kumar tendered into evidence a Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {15} copy of the petition (Ex.DG) filed under Section 13-B of the Hindu Marriage Act titled as Sarla Devi vs. Narender Kumar and closed the defence evidence.
After hearing the learned counsel for the parties, the learned trial Court convicted the appellant Narender Kumar for the offences punishable under Sections 306 and 498-A IPC, while all his co-accused were exonerated from the charges levelled against them.
Learned counsel for the appellant, Narender Kumar, and respondent, Shanti Devi, submits that Sarla had breathed her last after 11 years of her marriage, therefore, presumption under Section 113-A of the Indian Evidence Act was not available hence, the prosecution was required to prove its case beyond the reasonable doubt but it miserably failed to do so. There were deliberate wrong statements by the prosecution witnesses with regard to the fact that after marriage of Sarla in the year 1983, Raj Kumar and his wife Poonam as well as Mittar Sain and his wife, Usha, were jointly living with Sarla and Narender (appellant) while it was well proved on record that the marriage of Raj Kumar and Poonam was solemnized in the year 1989; it was well proved on record by defence that Mitter Sain along with his family was living separately from Ram Chander much prior to 1983; that from the defence evidence, it was well proved that on the fateful day, Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {16} telephone calls were made at the telephone installed at the house of the complainant and the said facts were deliberately concealed by the complainant side. He further submits that the critical analysis of the depositions of Roop Chand (PW6), Rajender Jain (PW7) and Parkash Chand Jain (PW8) would show that the same were full of improvements; the letters produced by the prosecution were forged and fabricated; that the defence evidence was more probable then that of defence version; that the learned trial court had recorded sound reasons in favour of acquittal of the respondent-accused Shanti Devi and as such, there was no force in the appeal filed by the State of Haryana for setting aside the judgment of acquittal qua her (Shanti Devi).
Learned counsel further argues that even if the whole case of the prosecution is taken at its face value then also, the ingredients of Section 306, IPC, qua appellant, Narender Kumar, are not attracted and hence, his conviction and sentence for the said offence is also liable to be set aside. In support of his contentions, learned counsel has placed reliance on the following judgments:-
(i) S.S.Chheena vs. Vijay Kumar Mahajan & Anr. 2010(4) RCR(Criminal) 66 (SC);
(ii) Madan Mohan Singh vs. State of Gujarat & Anr. 2010(4) RCR (Criminal) 207 (SC);
(iii) Gangula Mohan Reddy Vs. State of Andhra Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {17} Pradesh 2010(1) RCR(Criminal) 603 (SC);
(iv) Amalendu Pal @ Jhantu vs. State of West Bengal 2010(1) RCR(Criminal) 643 (SC);
(v) Bhagwan Das vs. Kartar Singh & Ors. 2007(3) RCR(Criminal) 87(SC);
(vi) Ramesh Kumar vs. State of Chhattisgarh 2001(4) RCR(Criminal) 537 (SC) On the other hand, learned counsel for the State submits that from the depositions of Roop Chand (PW6), Rajender Jain (PW7), Parkash Chand (PW8) and the other material available on record, it is well proved that the appellant, Narender Kumar, abetted Sarla to commit suicide and also harassed and treated her with cruelty. As such, the mischiefs of Sections 306 and 498-A, IPC, were attracted and hence, the learned trial court had rightly held guilty and punished him for the said offences. He further submits that Shanti Devi, respondent-
accused in the appeal filed by the State, was equally liable for the said offences since she being mother-in-law had treated Sarla with cruelty and the same was to such an extent that Sarla had no option but to commit suicide, therefore, the judgment of acquittal qua Shanti Devi is liable to be set aside.
I have heard the learned counsel for the parties and with their able assistance gone through the material available on record.
Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {18} In the matter of S.S.Chheena's case (supra), Hon'ble the Supreme Court held as under:-
"Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under Section 306, IPC, there has to be a clear mens rea to commit the offence It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide".
In the matter of Madan Mohan Singh's case (supra), Hon'ble the Supreme Court held as under:-
"It is absurd to even think that a superior officer like the appellant would intend to bring about suicide of his driver and, therefore, abet the offence. In fact, there is no nexus between the so-called suicide (if at all it is one for which also there is no material on record) and any of the alleged acts on the part of the appellant. There is no proximity either. In the prosecution under Section 306, IPC, much more material is required. The courts have to be extremely careful as the main person is not available for cross-examination by the appellant- accused. Unless, therefore, there is specific allegation and material of definite nature (not imaginary or inferential one), it would be hazardous to ask the appellant-accused to face the trial. A criminal trial is not exactly a pleasant experience. The person like the appellant in the present case who is serving in a responsible post would certainly suffer great prejudice, were he to face prosecution on absurd allegations of irrelevant nature. In the similar circumstances, as reported in Netai Dutta v. State of W.B. (2005) 2 SCC 659, this Court had quashed the proceedings initiated against the accused."Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh
Criminal Appeal No.352-SB of 1996 {19} In the matter of Amalendu Pal alias Jhantu's case (supra), Hon'ble the Apext Court held as under:-
"Before holding an accused guilty of an offence under Section 306, IPC, the court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to commit suicide. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306, IPC is not sustainable.
In order to bring a case within the purview of Section 306, IPC, there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306, IPC."
Hon'ble the Supreme Court in the above noted case further held that though there was no direct evidence to show that the appellant by his acts instigated or provoked the deceased to commit suicide and no act was done by him which could be said to have facilitated the commission of suicide by deceased. Further fact that cruelty was meted out to the deceased, Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {20} sufficiently proved from the evidence on record that he did commit the offence punishable under Section 498-A,IPC.
In Bhagwan Das's case (supra), Hon'ble the Supreme Court held as under:-
"It often happens that there are disputes and discords in the matrimonial home and a wife is harassed by the husband or her in-laws. This, however, would not by itself and without something more attract Section 306, IPC read with Section 107, IPC. This mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107, IPC, if the wife commits suicide."
In Ramesh Kumar's case (supra), Hon'ble the Supreme Court held as under:-
"Merely because accused was found guilty under Section 498-A, IPC, he should not unnecessarily be held to be guilty under Section 306, IPC, on the basis of same evidence".
In the light of the facts and the ratio of the judgments discussed hereinabove, if the material available on record and the depositions of the witnesses of the two sides are analysed then the undisputed facts can be summarized as under:-
(i) that marriage of Narender (appellant) was solemnized with Sarla (since deceased) in the year 1983 and out of the said wedlock, a daughter, namely, Ansul, was born and she was aged about 10 years on the date of occurrence, i.e. intervening night of 24th and 25th September, 1994;Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh
Criminal Appeal No.352-SB of 1996 {21}
(ii) that Roop Chand (PW6), Rajender (PW7) and Parkash Chand Jain (PW8) are the father, the brother and maternal uncle, respectively, of Sarla (since deceased). Shanti Devi respondent/accused is the mother-in-law while Narender (appellant) is the husband of Sarla;
(iii) Sarla set herself and her daughter, Ansul, on fire on the intervening night of 24th and 25th September, 1994, at her matrimonial house at Rohtak;
(iv) the presumption enshrined in Section 113-A of the Indian Evidence Act is not attracted since the marriage between Narender and Sarla was 11 years old, i.e beyond the period of seven years; After identifying the undisputed facts, the following issues remain to be adjudicated upon:-
(a) Whether the appellant Narender and his mother Shanti Devi, abetted, instigated or created such an atmosphere that there was no other option for Sarla to commit suicide by setting herself and her daughter aged about 10 years, on fire?
(b) Whether the ingredients of Section 498-A, IPC, are attracted to hold the appellant, Narender Kumar, guilty in the facts and circumstances of the case in Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {22} hand? and
(c) Whether from the material available on record and the evidence led by the two sides, the judgment of acquittal qua Shanti Devi accused-respondent is liable to be set aside?
While lodging the FIR, Roop Chand (PW6), father of Sarla, mentioned that after marriage Narender Kumar, Mitter Sain, Raj Kumar, Shanti Devi, Usha and Poonam used to tease and beat his daughter, Sarla, for dowry and thrown out her (Sarla) from her matrimonial house after giving beatings. Seeing no alternative, Sarla had filed a divorce petition which was withdrawn on the assurance of the accused persons that they would keep her properly and thereafter, a daughter, namely, Ansul, was born. Thereafter, the accused persons again started harassing Sarla and turned her out of their house in three clothes. The accused persons demanded Rs.15,000/- for settlement of Sarla and the said amount was paid to Narender. After some time, the taunts were passed and Sarla was beaten. She (Sarla) brought to the notice of her parents that Narender (appellant) had illicit relations with his sister-in-law (bhabhi) and the accused had been harassing Sarla on that account as well. A month prior to her death, Rajender (PW7) visited Sarla's matrimonial house and she told him that she was living in a hell. While making his Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {23} deposition, Roop Chand (PW6) admitted in his cross-examination that he did not mention in the FIR that many a times he met the demands of the accused for Rs.10,000/- and Rs.5,000/- and he got simply mentioned that there was a demand of that amount. The witness was duly confronted with his previous statement (Ex.PD) to the effect that his daughter apprehended danger to her life from the hands of the accused persons. The witness further admitted that the marriage of Poonam with Raj Kumar was solemnized after several years of the marriage of Narender with Sarla.
While lodging the report, there was no reference with regard to the letters written by Sarla to her parents etc. The fact that the marriage of Poonam with Raj Kumar was solemnized much after the marriage of Narender and Sarla, therefore, there was no occasion for them to have joined their co-accused in harassing or beating Sarla (since deceased). It is the conceded position that after four years of the marriage, Sarla had filed a petition for divorce which was withdrawn by her and thereafter, she started living with her husband and she gave birth to a female child. The birth of a child would clearly show that after some dispute immediately after the marriage, the appellant Narender was cohabiting with Sarla and was fulfilling the obligations of a husband. The allegations levelled by Roop Chand (PW6) that he Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {24} paid the cash to Narender on several occasions has not been substantiated from independent corroboration. The allegations that Narender had maintained illicit relations with his sister-in-law and the said fact came to the notice of Sarla after about 06 to 07 years of her marriage even thereafter she continued to live with Narender for several years, therefore, that could not be considered to be reason for committing suicide. Even the allegation that Narender had extra martial relations with one Sonia as well could not be substantiated from any independent source. Even Sonia was not joined or interrogated by the police during investigation to verify the said fact. Assuming the said fact to be true for the sake of discussion then also, can it be said that a lady whose marriage was solemnized 11 years ago would commit suicide for the reason that her husband had maintained the extra marital/illicit relations with some other lady, particularly when the said fact had come to her notice several years prior to committing the suicide. Undoubtedly, the ingredients of Section 306, IPC, where the abetment to commit suicide has been defined are not attracted in the present case. By any stretch of imagination, this Court cannot assume or make up its mind on the basis of the material available on record that the appellant, Narender, created such an atmosphere in his house that Sarla had no option but to commit suicide. The ratio of the judgments Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {25} discussed hereinabove would also spell out that usual bickering between husband and wife in a house on account of certain issues might not drive a wife to take the extreme step of committing suicide. However from the material available on record, it is clearly made out that Narender (appellant) treated Sarla with cruelty which would attract the provisions of Section 498-A, IPC, to which the learned trial court has rightly convicted and passed an order of sentence.
So far as the appeal filed by the State challenging the acquittal of Shanti Devi is concerned, it would be appropriate to quote the relevant findings of the learned trial court which are as under:-
"Statement of Roop Chand, father of deceased and Rajender, brother of deceased Sarla against remaining accused are just like omnibus statement. It has not come in their evidence that at what time, these accused, namely, Shanti, Mittar Sain, Usha, Raj Kumar and Poonam raised demand of dowry either in cash or in what kind. There is no specific allegation that on such occasions they tortured deceased or caused any beating or taunted her. There are baseless allegations against them in letters only from 1983 to 1986 that accused Shanti, Mittar Sain, Usha and Raj Kumar used to taunt Sarla for having not taken handsome dowry. Secondly, there are allegations that temperament of Shanti, Mitter Sain.Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh
Criminal Appeal No.352-SB of 1996 {26} Usha was hot and because of that they remained unhappy with deceased but after 1986, there are no such allegations regarding torture, beating by these accused to Sarla. No report was either made to police or any authority or any woman cell nor such matters were brought to the notice of brotherhood, even such things were not even in the notice of Parkash Chand (PW8). Such allegations against these accused are completely wild, being levelled by these two witnesses father and son in between 1986 to 1994. Prosecution failed to establish the allegations of demand of dowry, torture, harassment from the side of these accused against the deceased. Moreover, it is a settled law that people are using the weapon of bride burning, dowry death as a most aggressive weapon and this is one of the example of those acts. Parents of the deceased have not only involved husband, mother-in-
law but also involved elder brother Mittar Sain, his wife Usha, Younger brother Raj Kumar and his wife Poonam who have been residing separate since long. Raj Kumar and Poonam have also been involved falsely when their marriage took place in 1989 and they had served all relations with the family by separating themselves in the year 1992. Similarly, Mittar Sain had separated from joint family since 1987. Accused Narender has constructed his new house in the year 1987 in House No.741/1 and since then he has been also residing separate from his joint family. Thus, offences against these accused under which they have been charge-sheeted, remains unproved Sharma Seema 2014.01.10 10:12 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.352-SB of 1996 {27} and unestablished."
It is settled law that judgment of acquittal should not be set aside merely on the ground that yet another opinion can be framed on the basis of the material available on record. The question to be decided by the Appellate Court is as to whether the findings recorded by the learned trial court are perverse or against the material on record. After scanning the whole material, this Court is of the considered view that no interference is called for so far as the appeal filed by the State of Haryana is concerned.
In view of the above discussion, there is no force in the Criminal Appeal No.209-DBA of 1997 and the same is hereby dismissed.
Criminal Appeal No.352-SB of 1996 filed by the appellant, Narender, is partly allowed. He is acquitted of the charge under Section 306, IPC. However, his conviction and sentence recorded by the learned trial court for the offence punishable under Section 498-A, IPC, is maintained.
July 25, 2013 (Naresh Kumar Sanghi)
seema Judge
Sharma Seema
2014.01.10 10:12
I attest to the accuracy and
integrity of this document
Chandigarh