Punjab-Haryana High Court
Balwant Singh And Anr. vs State Of Haryana on 30 March, 2005
Equivalent citations: II(2005)DMC495
Author: Baldev Singh
Bench: Baldev Singh
JUDGMENT Baldev Singh, J.
1. Balwant Singh son of Matu Ram and Matu Ram son of Mullu Ram, both residents of Village Keshopur, Police Station Mullana, District Ambala, have filed this appeal against the impugned judgment of conviction and sentence order, both dated June 15, 1991, passed by Mr. V.P. Aggarwal, the then Additional Sessions Judge, Ambala, in case First Information Report No. 159 dated September 6, 1988, under Section 304-B read with Section 34 of the Indian Penal Code, registered at Police Station Mullana, District Ambala. Each of them was convicted under Section 304-B read with Section 34 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years. Lal Chand and Smt. Kishni were also tried along with them, but they were acquitted by the Trial Court.
2. The facts of the prosecution case are that Kuldip Kaur @ Deepo (deceased) was married with Balwant Singh (appellant) about 3-1/4 years prior to occurrence. Matu Ram (co-appellant) is father of said Balwant Singh. Lal Chand (accused), who was acquitted, is elder brother of said Balwant Singh. Smt. Kishni (accused), who was acquitted, is wife of Matu Ram (appellant). Dalel Ram, father of Kuldip Kaur @ Deepo (deceased) had given sufficient dowry in her marriage according to his status and capacity. After about 5/6 months of the marriage, Kuldip Kaur @ Deepo was left at the house of Dalel Ram at Village Khera by appellants Balwant Singh and his father Matu Ram. She stayed at the house of her father for 4/5 months. Thereafter, both the appellants came to fetch Kuldip Kaur @ Deepo and they also made a demand of Rs. 2,000/- for running a 'Karyana' shop. P.W. Dalel Ram gave them the demanded amount of Rs. 2,000/- by arranging it from his brother-in-law Jagdish Kumar resident of Bakhtuha. Both the appellants did not return this amount. 7/8 months passed, Balwant Singh (appellant) again left Kuldip Kaur @ Deepo at the house of her father Dalel Ram. Then after 3/4 months, he came at the house of Dalel Ram at Village Khera and put forth a demand of Rs. 4,000/- more because he wanted to expand his business. P.W. Dalel Ram being a labourer was unable to meet this demand and so he showed his inability to pay this much amount to Balwant Singh (appellant). Kuldip Kaur @ Deepo then remained with Dalel Ram for a continuous period of one year. Dalel Ram had lodged a report in this connection with the police. Then, at the instance of respectables of the village, he sent his daughter Kuldip Kaur @ Deepo with appellants Balwant Singh and Matu Ram on May 20, 1988. The appellants had assured that they would not harass Kuldip Kaur @ Deepo, in the presence of the members of the Panchayat. But after 15/20 days, Matu Ram (appellant) came to Village Khera and said to P.W. Dalel Ram to give Rs. 4,000/- if he wanted his daughter to be settled in her matrimonial home. P.W. Dalel Ram took into confidence his brother Bachan Dass and brother-in-law Jagdish Kumar. An amount of Rs. 3,000/- was arranged and it was given to Matu Ram (appellant) at Village Khera in the presence of Bachan Dass, Jagdish Kumar and Rikhi Ram, the then Sarpanch, but the demand of the appellants of Rs. 1,000/- continued. Roshan Lal, elder son-in-law of Dalel Ram came and informed that Kuldip Kaur @ Deepo was being harassed by her in-laws. Then on September 4, 1988, Dalel Ram sent his son Satish Kumar to Keshopur to enquire about the well-being of Kuldip Kaur @ Deepo. Satish Kumar also reported that Kuldip Kaur @ Deepo was being harassed by the appellants and their other family members and they all were compelling her to bring Rs. 1,000/- from her father. Dalel Ram arranged for some money so that he might give to Matu Ram (appellant). Then on September 5, 1988, at about 6 a.m., Hukam Singh son of Basakhi Ram and Kartara Ram son of Premo residents of Village Keshopur came to the house of Dalel Ram and told him that his daughter Kuldip Kaur @ Deepo had expired on September 4, 1988. P.W. Dalel Ram and other relatives then reached Village Keshopur on September 5, 1988. The police was present at the house of the appellants. The dead-body of Kuldip Kaur @ Deepo was lying in their house. Post mortem examination was conducted on the dead-body of Kuldip Kaur @ Deepo. After the post mortem examination, the dead-body was taken to Village Khera for cremation. On the next day i.e., on September 6, 1988, Dalel Ram (father of the deceased girl) lodged report with the police and the case was registered.
3. Dr. A.K. Garg had conducted the autopsy on the dead-body of Kuldip Kaur @ Deepo on September 5, 1988 at 6 p.m. Exhibit P.A. is the post mortem report. The viscera of the deceased was sealed for being sent to the Chemical Examiner. Report of the Chemical Examiner (Exhibit P.B.) was thereafter received. Aluminium phosphide was found in the viscera. The cause of death was deferred till the receipt of the report of the Chemical Examiner and after its report was received, death was opined to be poisoning due to aluminium phosphide.
4. On completion of the investigation, challan was put in against the appellants and Lal Chand and Smt. Kishni under Section 304-B read with Section 34 of the Indian Penal Code.
5. The case was committed to the Court of Session for trial. Charge was framed for the offence under Section 304-B read with Section 34 of the Indian Penal Code. The appellants and others did not plead guilty and had claimed a trial.
6. To prove its case, the prosecution had examined P.W. 1 Dr. A.K. Garg, P.W. 2 Didar Singh, P.W. 3 Dalel Ram, P.W. 4 Rikhi Ram, P.W. 5 Bachan Dass, P.W. 6 Sub-Inspector Joginder Singh and P.W. 7 Surinder Singh, Photographer.
7. The appellants were examined under Section 313 of the Code of Criminal Procedure on the conclusion of the prosecution evidence. They denied the prosecution allegations and complained of their false implicity in this case. The appellants had examined three witnesses in defence, namely, D.W. 1 Makhan Singh, D.W. 2 Jagdish Chander and D.W. 3 R.K. Sharma.
8. Arguments of the learned Counsel for the appellants and of the learned Counsel for the respondent-State of Haryana were heard and the evidence was scrutinised with their help.
9. The learned Counsel for the appellants argued that the prosecution has failed to establish two essential ingredients i.e., soon before death the deceased was subjected to cruelty or harassment by her husband or relatives and the same was for or in connection with demand of dowry. Hence the appellants could not be convicted under Section 304-B of the Indian Penal Code. He extended his arguments that demand for money from father of the deceased-bride for expansion of business does not amount to demand of dowry. The deceased in this case committed suicide by consuming poison i.e., aluminium phosphide and the appellants, at the worst, can be convicted under Section 498-A of the Indian Penal Code as she felt harassed on account of the demand of money by them from her poor father. He referred to the statement of P.W. 3 Dalel Ram, father of the deceased. He had deposed that after 5/6 months of the marriage, his daughter Deepo was loft at his house at Village Khera by both the appellants. At that time, they had expressed their desire to increase the business of their 'Karyana' shop. Rs. 2,000/- were demanded from them. He procured this amount from his brother-in-law Jagdish and gave it to the appellants. Deepo was taken to her in-laws' house. P.W. 3 Dalel Ram deposed that the appellants had not returned this amount to him. It indicates that Rs. 2,000/- were taken for expansion of business and the amount was returnable. This does not amount to demand of dowry. P.W. 3 Dalel Ram further deposed that after 7/8 months, Balwant Singh (appellant) came to his house along with Deepo and he returned leaving her. Again he came after 3/4 months and made demand of Rs. 4,000/- in order to start a shop of cycle-repairing. His statement further reveals that Balwant Singh (appellant) visited his house 2/3 times during one year of the marriage. Death had taken place after about 3 1/4 years of the marriage. Demand of money for increasing business was made much time earlier to death. There was a compromise. Again after 15/20 days of the compromise, demand of Rs. 4,000/- was repeated. Rs. 3,000/- were paid to Matu Ram (appellant). Demand of remaining amount of Rs. 1,000/-persisted. His cross-examination reveals that till the date of marriage, there was no demand of any dowry by the appellants. Only Rs. 10,000/- were spent in marriage. The learned Counsel for the appellants also referred to the statements of P.W. 4 Rikhi Ram and P.W. 5 Bachan Dass. P.W. 4 Rikhi Ram deposed that Dalel Ram had paid Rs. 3,000/- to Matu Ram (appellant) in his presence and in the presence of Bachan Dass. He had also offered to give Rs. 1,000/- more afterwards. This fact reveals that total amount of Rs. 4,000/- was required by Matu Ram (appellant) for opening shop of cycle-repairing. He showed his ignorance whether remaining amount of Rs. 1,000/- was to be given as loan or otherwise. P.W. 5 Bachan Dass corroborates the testimony of PW 4 Rikhi Ram. According to him, Rs. 3,000/- were paid to Matu Ram (appellant). At that time, Deepo was in her in-laws' house at Village Keshopur. According to him, Deepo was harassed by the appellants. So, all which has transpired from the statements of P.W. 3 Dalel Ram, PW 4 Rikhi Ram and P.W. 5 Bachan Dass, is that Rs. 2,000/- were paid to the appellants as per their demand for expanding the 'Karyana' shop. Rs. 4,000/-were demanded by the appellants for opening a cycle-repairing shop and Rs. 3,000/- were paid to Matu Ram (appellant) for this purpose. These amounts were paid much time earlier to the death of Deepo. Presumption under Section 113-B of the Indian Evidence Act will operate if the prosecution proves that soon before death of bride, she was subjected to cruelty or harassment. Expression 'soon before' has not been defined. It is a relative term and would depend upon the circumstances of each case. This expression 'soon before' has been explained in the case of Hira Lal and Ors. v. State (Govt. of NCT) Delhi, 2003 (3) RCR (Criminal) 830. Expression 'soon before' would imply that interval should not be much between the concerned cruelty or harassment and the death in question. There must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned, it would be of no consequence. In the case under reference, suicide by the bride was committed after 4-1/2 months of the settlement arrived at with the intervention of Women Cell. It was held that it cannot be said that ill-treatment to the bride was soon before death. Section 304-B of the Indian Penal Code will not apply.
10. Money was demanded twice for expansion of 'Karyana' shop and for opening a cycle repairing shop. It does not amount to demand of dowry. However, the deceased felt harassed on account of demand of money from her father as he was poor. The appellants subjected her to cruelty and harassment. She committed suicide by taking aluminium phosphide. The appellants abetted the commission of suicide by her. They have committed offences under Sections 306 and 498-A of the Indian Penal Code. Offence under Section 304-B of the Indian Penal Code is not made out. Charge was farmed under Section 304-B of the Indian Penal Code. The Trial Court convicted the appellants for the said offence. They can be convicted under Sections 306 and 498-A of the Indian Penal Code though the charge was framed against them under Section 304-B of the Indian Penal Code. A few cases are referred here. In the case of Virender Singh v. State of Haryana, III (2004) CCR 501 : 2004 (1) RCR (Criminal) 625, apart from general allegations, demand of Rs. 20,000/- for financing a film was made. It was observed that the evidence of dowry demand is some what weak. Apart from the general demands, demand of Rs. 20,000/- for financing a film cannot be said to be dowry demand. In the case of Kakumanu Jayaprasada Rao v. State of Andhra Pradesh, 2005 (1) RCR (Criminal) 748, the husband was in financial distress and demanded Rs. 40,000/- from the father of the bride. It was observed that it is not a demand of dowry. Accused was acquitted of the offence under Section 304-B of the Indian Penal Code. Only scant evidence of relatives of the deceased was available regarding pressure of the husband on wife to bring the amount. Accused was acquitted of the charge under Section 498-A of the Indian Penal Code. In the case of State of Punjab v. Daljit Singh, 1999 (2) RCR (Criminal) 690, no demand was made before or after marriage. After four years of marriage, in-laws demanded a sum of Rs. 50,000/-to send a younger son abroad. It was observed that such demand does not come within the definition of dowry as it was not a demand as a consideration for marriage. Bride committed suicide due to harassment on account of demand. It was held that offence of dowry death under Section 304-B of the Indian Penal Code was not made out. Accused was held guilty of offence under Section 498A of the Indian Penal Code. In the case of Ramesh Kumar v. State of Haryana, III (1999) CCR 175 : 1999 (3) RCR (Criminal) 433, there was no evidence of demand of dowry at the time of marriage. The allegation was that marriage was not performed according to the wishes of the accused. This does not amount to demand of dowry. The bride committed suicide after five years of marriage along with an infant daughter. A month prior to occurrence, demand of Rs. 6,000/- was made by the husband to get employment. It was held that this does not come within the definition of dowry. The accused was acquitted of the charge under Section 304-B of the Indian Penal Code. He was, however, convicted under Sections 498-A and 201 of the Indian Penal Code.
11. So, from the evidence in this case, it is established that there was pressure on the mind of the deceased, created by the appellants, to bring money from her father. She felt harassed. The appellants treated her with cruelty. Her father being poor, could not afford to give money. She, therefore, committed suicide. The appellants are guilty of the offences punishable under Sections 306 and 498-A of the Indian Penal Code.
12. The learned Counsel for the appellants prayed for a reduction in the sentence. He submitted that Matu Ram (appellant) was 70 years old as on May 15, 1991, when his statement under Section 313 of the Code of Criminal Procedure was recorded. Now he is aged about 84 years. He has already undergone incarceration for about 4 months. Balwant Singh (appellant) has already undergone incarceration for 2 years and 10 months. First Information Report was registered on September 6, 1988. More that 16 years have lapsed and the appellants are suffering from the agony of this case. He submitted that the sentence may be reduced to already undergone. He referred a few cases. In the case of Jagsir Singh and Anr. v. State of Haryana, 2004 (1) RCR (Criminal) 123, conviction was recorded under Sections 498-A and 306 of the Indian Penal Code. Occurrence was 13 years old. The accused were on bail. Sentence was reduced to already undergone (13 months). In the case of Mohan Singh and Anr. v. State of Punjab, 2004 (1) RCR (Criminal) 697, conviction was recorded under Section 306 of the Indian Penal Code in respect of father-in-law and mother-in-law of the deceased. Incident was 13 years old. Father-in-law had died. Mother-in-law was aged 73/74 years. Sentence of mother-in-law was reduced to already undergone (1 month). Mohd. Hoshan and Anr. v. State of A.P., 2002 (4) RCR (Criminal) 155 (SC), was relied upon. In the case of Rajbir v. State of Haryana, 2004 (1) RCR (Criminal) 932, two accused were convicted under Sections 306 and 498-A of the Indian Penal Code. They were facing trial for the last 11 years. Sentence was reduced to already undergone (one accused 26 months and the other 18 months). In the case of Jagbir and Ors. v. State (U.T. Chandigarh), 2004 (2) RCR (Criminal) 826, there was abatement to suicide by the bride and the conviction was recorded under Section 306 of the Indian Penal Code. Occurrence related to the year 1991. The accused suffered the agony of protracted trial for about 13 years. Sentence was reduced to already undergone (Jagbiri and Bimlesh remained in custody for 2 months and a few odd days whereas Sham Narayan remained in custody for about 6/7 months after his conviction). Reliance was placed on Mohd. Hoshan and Anr. v. State of A.P. (supra).
13. The conviction of the appellants recorded under Section 304-B of the Indian Penal Code is set aside. They are convicted under Sections 306 and 498-A of the Indian Penal Code.
14. Balwant Singh (appellant) is sentenced to undergo rigorous imprisonment for 3 years and to pay Rs. 4,000/- as fine and in default of payment of fine to further undergo rigorous imprisonment for 6 months under Section 306 of the Indian Penal Code. He is also sentenced to undergo rigorous imprisonment for 6 months and to pay Rs. 1,000/- as fine and in default of payment of fine to further undergo rigorous imprisonment for 3 months under Section 498-A of the Indian Penal Code. Both the sentences are ordered to run concurrently. He has already undergone incarceration for about 2 years and 10 months. It would be set off from the period of sentence. His arrest warrants be issued so that he may undergo the remaining sentence.
15. Matu Ram (appellant) would pay fine of Rs. 3,000/- under Section 306 of the Indian Penal Code and fine of Rs. 2,000/- under Section 498-A of the Indian Penal Code and in default of payment of this fine (Rs. 5,000/-), he shall undergo rigorous imprisonment for 6 months. He has already undergone incarceration for about 4 months. He is presently 84 years old. The sentence of imprisonment is reduced to the period already undergone by him.
The entire amount of fine to be realised from both the appellants is ordered to be paid to Dalel Ram (complainant) by way of compensation.
The appeal is disposed of accordingly.