Punjab-Haryana High Court
Rameshwar Dass And Anr. vs The State Of Haryana on 19 November, 1991
Equivalent citations: (1993)103PLR265
JUDGMENT J.S. Sekhon, J.
1. Rameshwar Dass and Bhushan Kumar appellants were found guilty of the murder of Mst. Igya Wati wife of the latter punishable under section 302/34 IPC and both of them were awarded sentence to undergo imprisonment of life besides to pay a fine of Rs. 1,000/- or in default of payment thereof to further suffer three month's rigorous imprisonment by the learned Additional Sessions Judge Kurukshetra vide orders dated 26th July, 1989. Feeling aggrieved against their conviction and sentence, the appellants have come up in appeal.
2. The brief resume of facts of the prosecution case relevant for the disposal of this appeal is that Mst. Igya Wati daughter of Amar Singh PW-3 of village Kanjal was married with Bhushan Kumaraccused sen of Rameshwar Dass accused about 1 1/2 years prior to this occurrence. Amar Singh PW had given dowry to his daughter according to his financial and social status. But Bhushan Kumar accused being not satisfied with the dowry given in his marriage used to taunt his wife that it was not possible for him to pull on alongwith her and that he will perform the second marriage as she has brought meagre dowry and is hardly a primary pass The deceased so apprised her parents whenever she visited their house. On the occasion of Dushehra preceding her murder, her cousin Bhah Mal PW-10 had gone to fetch her from her in-laws house when both the accused lodged protest with him that Mst. Igya Wati was less educated and has little common sense and she has brought lesser dowry and that it would be difficult for Bhushan Kumar to pull on with her and he intends to perform second marriage. Bhushan Kumar accused also put up a demand for Rs. 10,000/- for starting a kiryana business as he was unable to do the cultivation of land. Mst. Igya Wati when contacted by Bhag Mal PW also confirmed the above referred conduct of her husband and father-in-law. The accused, however, declined to send her to her parent's house on that occasion. On the night intervening 11th and 12th October, 1988 at about 2.30 A.M., Jai Singh brother of Rameshwar Dass alongwith Anil Kumar contacted Amar Singh PW in his house and apprised him of the death of Mst. lyga Wati due to fall from the roof of the house. Amar Singh alongwith his nephew Bhag Mal, his brother Soran, Nar Singh, Lambardar Hukam Chand, Phool Singh of his village then rushed to the house of the accused in village Kanjnu on Motor-cycles where they saw the dead body of Mst. Igya Wati lying in the street near the house of his son-in-law. Amar Singh also observed some abrasion marks around the neck of the deceased and. the fracture of her right leg He suspected that his son-in-law and Rameshwar Dass father-in-law of the deceased had killed her by strangulation and fracturing her leg He also suspected the involvement of the other male arid female members of the family of the in-laws of the deceased in her murder. Leaving his nephew Bhag Mal and brother Soran besides other people to guard the dead body, he went to village Sandholi to inform his brother-in law Darshan Lal PW-11 of the death of his daughter. Thereafter, he rushed to Police Station, Radaur and lodged report Exhibit PF with S. I Gurdial Singh PW-14 at 8.30 A. M. on 12th October, 1988, A case under section 302/34 I. P. C. was registered against the accused and its special report was conveyed to the Ilaqa Magistrate, Kurukshetra at 1.45 P. M.
3. Sub Inspector Gurdial Singh accompanied by Amar Singh PW arrived at the spot. He saw the dead body of Mst. Igya Wati lying in the lane with face downward. He also got the scene of crime photographed from Vinod Kumar Photographer PW-12. He also found blood stained chunni pair of chappal and blood lying spilled near the dead body. All these articles were taken in possession after putting in different sealed parcels. He also recorded the statements of the witnesses. The inquest report Exhibit PC of the dead body was also prepared by him. The dead body was entrusted to Constables Sewa Ram and Gopal Singh for autopsy vide request Exhibit PB. The Sub Inspector also found the accused missing from their house. He failed to trace them despite search at villages Jobal and Radaur.
4. The autopsy on the dead body of Mst. Igya Wati was conducted by Dr. R. R. Jindal PW-1 on 13th October, 1988. He found a ligature mark measuring 6 cms. x 1 cm. in breadth present all around the neck except 4 cms. area on the right side of the neck and 5 cms area towards back of the neck. It was horizontal at the level of thyriod cartridge On dissection thyriod was found fractured. Blood was also found in the sub-cutaneous tissues Clotted blood was found present around the nostrils and on right shoulder, Mucosa of larynx and trachea was congested. The deceased was carrying pregnancy of 32 weeks. He also found a post mortem wound measuring 5 cms. x 10 cms, having lacerated margins on the right thigh of the dead body. There was no inflammatory swelling around this injury and the right femur was found fractured. The doctor also preserved the viscera of the dead body and sent the same for chemical examination. In the opinion of the doctor, the death of Mst. Igya Wati had taken place due to asphyxia resulting from strangulation or throttling. The Chemical Examiner, however, vide his report Exhibit PV did not find any poison in the contents of the stomach intestines and blood sample.
5. Both the accused on 16th October, 1988 contacted Darshan Lal PW 11 at 8.30 AM at his house in village Sandholi. Dharam Pal PW 13 was also then present there. Rameshwar Dass accused first admitted that he alongwith his son Bhushan Kumar had strangulated Mst. Igya Wati with duppatta and thereafter, her leg was broken and her dead body was thrown by them in the street as she was having little common sense and less educated and had brought meagre dowry. He also admitted that she and her husband were not having good relations. Bhushan Kumar accused also on enquiry by this witness confirmed the above-referred version of his father. Then both these witnesses alongwith the accused left for the Police Station and were waiting at Bus Stand, Sandholi for catching a Bus or other vehicle when the police party arrived in a Jeep from the side of village Gumthala. On signal of Darshan Lal PW, the police had stopped the Jeep. Both these witnesses then apprised police of the confession of the accused and produced the accused before the police. The accused were arrested by S. I. Gurdial Singh after recording the statements of these witnesses.
6. The parcels of blood stained earth and dupatta lifted from the spot were sent to the Forensic Science Laboratory, Madhuban. The Chemical Examiner vide his report Ex. PV found blood on both these articles and sent the same for Serological analysis. The Serologist vide his report Ex. PW/1 confirmed the origin of the blood to be human and of group 'A' on both the articles.
7. After completion of investigation, both the accused were arraigned for trial on such like allegations for the murder of Mst. Igya Wati.
8. Before the trial Court in order to prove its above-referred case, the prosecution examined as many as fourteen witnesses besides tendering the reports of the Chemical Examiner and Serologist.
9. The versions of both the accused appellants before the trial Court in their respective statements recorded under section 313 of the Code of Criminal Procedure was that of innocence and false implication. Both the accused, however, admitted that Bhushan Kumar was married with Mst. Igya Wati but denied that they were not satisfied with dowry brought by her or that they used to maltreat her. Both the accused contended that they were arrested from their house on 12th October, 1988 and that they had not made any confession before Darshan Lal and Dharam Pal witnesses. They also maintained that the dead body was removed to the hospital from the spot on the truck of Om Parkash DW hired by them. Both the accused also maintained that Rameshwar Dass accused has no vision from left eye and very little vision from his right eye Bhushan Kumar accused also stated that he and his wife Mst. Igya Wati used to sleep on the upper storey room while his parents used to sleep on the ground floor. He never demanded any dowry nor there was any question of harassment. At about midnight, he heard sound of fall on the ground and woke up. He found his wife missing from the bed He then informed his father and then both of them found the dead body of Mst. Igya Wati lying in the street. His father instructed Jai Singh to inform Amar Singh of this incident. He also maintained having been falsely implicated in this case and that the witnesses are close relations of Amar Singh. Rameshwar Dass accused also supported the above-referred version of his co-accused Bhushan Kumar.
10. When called upon to enter on their defence, the accused examined Dr. S. N. Bansal, DW 1 in order to prove weak eye-sight of Rameshwar Dass accused. Sohan Lal Clerk of Dr. Arun Verma DW 2 of Suresh Chandra Memorial Eye Hospital, Yamuna Nagar also on the basis of the record deposed about the treatment of the eye of Rameshwar Dass accused by the said doctor. Om Parkash DW 3 supported the version of the accused that a truck through Jeet Singh was hired for Rs. 400/- for carrying the dead body from the spot to the hospital.
11. The trial Court believing the version of Amar Singh and Bhag Mal witnesses qua the accused being not satisfied with the dowry used to harass the deceased coupled with the medical evidence and confessional statement of both the accused before Darshan Lal and Dharam Pal witnesses besides other circumstantial evidence convicted and sentenced the appellants as referred above.
12. We have heard the learned counsel for the parties besides perusing the record.
13. Mr R. S. Cheema, learned Senior Advocate contends on behalf of the appellants that the evidence of Darshan Lal and Dharam Pal witnesses qua the extra-judicial confession before them is net acceptable as these witnesses being close relations of the deceased, it was highly improbable that the accused would repose confidence in them of such a heinous crime like murder of Mst. Igya Wati. He also maintained that the provisions of section 113B of the Indian Evidence Act or of section 304B of the I. P. C are not attracted to the facts of the case in hand as there was no evidence of the deceased having been harassed or treated with cruelty soon before her death on the grouse of having brought less dowry. It was also maintained that as no charge for offence under section 304B I P C. was framed against the accused, there was no question of the appellants being convicted of that charge especially when the case of the prosecution qua the murder of Mst. Igya Wati has not been proved. He also maintained that the possibility of Mst. Igya Wati having committed suicide cannot be ruled out. Mr. J. C. Sethi, Additional Advocate General, Haryana on the other hand maintained that the accused can be convicted under section 304B I. P. C. as the term 'soon' after her death figuring therein would embrace a series of acts which are part of the same transaction resulting in subjecting his wife to cruelty or harassing by the husband or any other relative of the husband. It was further maintained that section 304B I. P. C. had simply raised a presumption against such relative of the wife to have caused her death and sentence of seven years or imprisonment for life provided therein also shows that the Legislature has treated it a minor offence of the one punishable under section 302 I.P.C. He, however, conceded that the evidence of Darshan Lal and Dharam Pal witnesses qua the confession of the accused is not reliable. It. was further contended that Mst. Igya Wati had died due to asphyxia resulting from strangulation and after her death her dead body was thrown from the roof which had resulted in the fracture of her right femur further shows that at least her husband Bhushan Kumar was involved in her murder especially when both the husband and wife used to sleep on the roof of the first storey of the house while other members of the family slept on the ground floor.
14. Admittedly, the marriage of Mst. Igya Wati deceased took place with Bhushan Kumar accused 1-1/2 years prior to her death and there is absolutely no doubt that her death took place due to asphyxia resulting from strangulation. There is, however, no direct evidence of both the accused having strangulated or throttled Mst. Igya Wati. The trial Court had found both the accused guilty of her murder with the aid of section 34 I.P.C. on the basis of their confessional statement before Darshan Lal and Dharam Pal witnesses on 16th October, 1988. Keeping in view that Darshan Lal PW is married with the sister of Amar Singh, father of the deceased and that Dharam Pal PW is married with the sister of the wife of Bhag Mal cousin Brother of the deceased, it looks rather improbable that the accused would contact the above-referred near relations of the deceased residing in different village Sandholi for seeking their help to produce them before the police after admitting having strangulated Mst. Igya Wati with dupatta. Thus, under these circumstances the testimony of both these witnesses is not at all reliable because it suffers from inherent improbability of the accused having reposed confidence on them of making confession of such a heinous crime like the murder of their relation. Thus there is no option but to set-aside the findings of the trial Court qua their conviction for offence punishable under section 302/34 I.P.C.
15. The question then arises whether it is a case of dowry death and that the provisions of section 304B I.P.C. read with section 113B of the Indian Evidence Act would be attracted in this case. Dowry death has been defined in section 304B sub-section (1) of the I.P.C. which reads as under :-
"304B. Dowry death :- (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise that 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 for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.
Explanation :-For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of (Sib).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
The Explanation figuring under sub-section (1) of section 304B I.P.C. further shows that dowry shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. in section 2 of the Dowry Prohibition Act, 1961 as amended upto date, the dowry has been defined as under :-
"2. Definition of "dowry" :- In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage or
(b) by, the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties, but does not include) dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I.- ( xx xx xx ) Explanation II. The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860.)"
Section 113B of the Indian Evidence Act raises a presumption as to dowry death of a woman if it is shown that soon before her death of such woman had been subjected by such "person to cruelty or harassment for, or in connection with any demand of dowry, the Court shall presume that such person had caused the dowry death. This section reads as under :-
"Section 113B :-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation :-For the purpose of this section "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code".
The explanation under section 113B-of the Indian Evidence Act further shows that dowry death for the purpose of this section shall have the same meaning as in section 304B. I. P. C. A joint reading of all the above-referred provisions of Evidence Act, Dowry Prohibition Act and Penal Code leaves no doubt that for presuming a dowry death, the prosecution has to prove :-
(i) that the death of such woman took place within seven years of her marriage ;
(ii) that it was a un-natural death ; and
(iii) that she was subjected to cruelty or harrassment by her husband or any relative of her husband soon before her death ; and
(iv) that such cruelty or harassment was in connection with any demand for dowry.
On proof of these requirements such death shall be presumed to be dowry death and such husband or relative shall be deemed to have caused her death. The amended provisions of section 2 of the Dowry Prohibition Act, 1961 pertain to dowry death. The amendment has widened its scope by providing any property or valuable security given or agreed to be given either directly even before or at any time after the marriage in connection with the marriage of the said parties would amount to dowry. Now in the facts of the present case in the light of the above-referred requirements of law regarding dowry death, it transpires that it is consistent version of Amar Singh PW. 3 that his son-in-law Bhushan Kumar accused was not satisfied with the dowry and used to taunt his daughter Mst. Igya Wati on this score also besides the added grouse of she being less educated and having a little common sense. On the occasion of Dushehra preceding to her death, both the accused had refused to send Mst. Igya Wati to her parents house when her cousin brother Bhag Mal PW 10 had approached them in this regard. Rameshwar Dass accused had then told Bhag Mal that his son Bhushan Kumar co-accused feels it difficult to pull on with Mst. Igya Wati as she is less educated, having little common sense and having brought meagre dowry on the occasion of her marriage. Thus there is no escape but to conclude that the basic grouse for harassing Mst. Igya Wati by her husband was the meagre or inadequate dowry which she had brought at the time of her marriage which took place 1 1/2 years prior to the occurrence. The plight of a newly married girl can be well imagined when her husband tells that he will marry again as she had brought less dowry although she is not well educated and unintelligent. The refusal of the husband to send such wife to her parents in connection with Dushehra festival would further add to her harassment which would amount to mental cruelty. It is noteworthy that the provisions of section 304B I.P.C. provide that in case of the un-natural death of a woman within seven years of her marriage at the house of her in-laws if she has been subjected to cruelty or harassment soon before her death would amount to dowry death and the husband or such relative of the husband shall be deemed to have caused her death. The word "soon" has not been defined in the relevant statutes and thus ordinary grammatical meaning assigned thereto in English language has to be taken into consideration. In the Chambers 20th Century Dictionary Edited by E. M. Kirkpatrick New Edition Year 1988, the word "soon" means immediately or in a short time or without delay. Keeping in view the intent of the Legislature in enacting this provision to provide a presumption regarding dowry death, the word "soon" had to embrace series of incidents of cruelty or harassment forming part of the transaction which culminated in the un-natural death of such woman.
16. The Apex Court in Rajasthan and Ors. v. State of Madhya Pradesh, A. I. R. 1991 S. C. 1757, has relied upon earlier view of that Court in Tulsiram v. State of Madhya Pradesh, A. I. R. 1985 S. C. 299, wherein the word immediately was interpreted to convey" reasonable despatch and promptitude" intending to convey a sense of continuity rather than urgency while interpreting the provisions of section 13(2) of the Prevention of Food Adulteration Act, 1954 and Rule 9-A of the Prevention of Food Adulteration Rules, 1955 in connection with the duty enjoined upon the Local Health Authority to immediately send a copy of the result of analyst to the accused after institution of the prosecution. Thus it appears that the word "soon" interpreted in section 304B IPC would also embrace the series of incidents forming part of the same transaction which culminated in the death of the concerned woman. Thus there appears to be no farce in the contention of Mr. Cheema that the word "soon" should be interpreted as subjecting such woman to cruelty or harassment just before her death. Consequently, Amar Singh PW having not satisfied the demand of the accused for giving adecuate dowry, it appears quite natural that Bhushan Kumar accused continued taunting and harassing his wife Mst. Igya Wati deceased on this score till her death. If that is so, then the provisions of section 304B IPC and section 113B of the Evidence Act are well attracted to the facts of the case in hand.
17. The version of the accused appellants in their statements recorded by the trial court under section 313 of the Code of Criminal Procedure that Mst. Igya Wati had died due to fall from the house is belied by the medical evidence of Dr. R. K. Jindal PW1. This doctor had found the following injuries on the dead body during autopsy:-
"The body was well built and nourished. The length of the body was 5 feet 3 inches. There was a ligature mark 5 cms. to 1 cm. in breadth all around the neck except 4 cms. area on the right side of the neck and 5 cms on the back of neck. The mark was horizontal at the level of thyriod cartilidge. It was dry hard and parchiment like. On dissection, blood was found on some sub-contaneous tissues and the thyriod was found fractured. She was wearing salwar and shirt. There was a nose pin, ear ring and one bangle in each wrist of yellow metal and white metalic pajeb and one chutki were on her body. There was post mortem staining on the back. Rigor mortis was present with disapearing phase. Clotted blood stains were present around the nostrils and on right shoulder. Eyes and mouth were closed. Mucosa of larynex and trachea was congested. The stomach was healthy and contained little semi-digested food. She was pregnant by 32 weeks. It was a small baby with hairs on head, nails, fully formed and length was 42 cms. The weight of the baby was 1.7 Kgs. Scortum contained left testicle.
There was a post mortem wound on her body. 5X3 cms. bone deep with lacerated margins on the right thigh in the middle on the anterior aspect. However, there was no clotted blood at that place. Edges of the wound were slightly stained with blood which can be removed by washing. Inflammatory swelling was absent and the right femur was found fractured."
18. A bare glance through the same leaves no doubt that according to Dr. Jindal the injury on the right leg resulting in fracture of femur, bone was post mortem in nature. This conclusion is supported from valid reasons as no inflammation of the tissues was found around this injury and there was no bleeding therefrom. If that is so, then there is no escape but to conclude that Mst. Igya Wati was first killed and thereafter thrown from the first storey of her in-laws house. Keeping in view that a young couple will sleep separately from parents of the husband, there is nothing unusual for Mst. Igya Wati and her husband Bhushan Kumar being sleeping on the first storey of the house while her in-laws and other members of the family sleeping on the ground floor. In view of the medical evidence, it is not acceptable that Mst. Igya Wati will be able to strangulate herself with her dupatta especially when it is not the case of the accused that her dead body was found hanging or dupatta was tied somewhere in the ceiling of the room or at higher level. There was no parapet on the roof of the first storey. Thus under these circumstances, Bhushan Kumar accused husband of the deceased appears to have strangulated her to death and thereafter thrown her dead body in the street. But due to lack of direct evidence strong suspicion in this regard is of no consequence to hold that Bhushan Kumar had committed the murder of Mst. Igya Wati punishable under section 302 IPC. As already discussed, Bhushan Kumar would be deemed to have caused the death of his wife punishable under the provisions of section 304B IPC. The case of Rameshwar Dass accused-appellant, however, stands on a different footing as the testimony of Bhag Mal PW 10 reveals that when he went to fetch Mst. Igya Wati deceased on the occasion of Dushehra, Rameshwar Dass had simply conveyed him the feelings of his son Bhushan Kumar that he would be unable to pull on with Mst. Igya Wati as she had brought less dowry, was less educated and having little common sense. Thus it cannot be said that Rameshwar Dass accused used to harass or treat his daughter-in-law with cruelty on this count Consequently, it cannot be said that Rameshwar Dass accused had indulged in harassing his daughter-in-law soon before her death on account of having brought less dowry.
19. The question then arises whether the non-framing of any charge under section 304B IPC against Bhushan Kumar accused by the trial Court had resulted in any prejudice to him or that the offence under section 304B IPC being a lesser offence of the substantive murder punishable under section 302 IPC the conviction of the accused can be recorded under section 304B IPC in the absence of such charge. In this regard, it is noteworthy that both Amar Singh and Bhag Mal witnesses were subjected to lengthy cross-examination qua the harassment of Mst. Igga Wati deceased or taunting her on account of having brought less dowry. Consequently, it cannot be said that the non framing of charge under section 304B IPC against the accused by the trial Court had resulted in any prejudice to them for setting up an effective defence.
20. For the reasons recorded above, the conviction and sentence of Rameshwar Dass appellant is set aside by accepting his appeal and acquitting him of the charge of murder or of dowry death of Mst. Igya Wati. However, the appeal filed by Bhushan Kumar appellant partly succeeds to the extent that he stands acquitted of the charge punishable under section 302 read with section 34 IPC but convicted of the offence punishable under section 304B IPC. He is awarded seven years' rigorous imprisonment on this count. The period of detention during investigation, trial or pendency of the appeal undergone by him shall be treated as set off towards this sentence.