Punjab-Haryana High Court
Anil Chawla vs State Of Haryana on 13 February, 2014
Author: K.C.Puri
Bench: K.C.Puri
Verma Sunil
Criminal Appeal No. S. 379 SB of 2003 1 2014.03.11 15:52
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. S. 379 SB of 2003
Date of decision 13 .02.2014.
Anil Chawla
...... Appellant.
versus
State of Haryana
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present :- Mr. R.S.Cheema, Senior Advocate with
Mr. Pawan Girdhar, Advocate for the appellant.
Mr Amit Kaushik, Sr. DAG, Haryana.
K.C.PURI, J.
Appellant- Anil Chawla has directed the present appeal against the judgment dated 21.1.2003 and order dated 25.1.2003 passed by Shri Hari Paran Singh, learned Additional Sessions Judge, Panipat vide which accused/appellant has been convicted under Section 304-B of the Indian Penal Code ( in short - the IPC ) and sentenced to undergo rigorous imprisonment for a period of seven years under Section 304-B of the IPC whereas acquitted the other accused from the charge levelled against them.
2. The prosecution story in brief is that on 28.7.1998 Alka Devi was got admitted in General Hospital, Panipat in burnt condition and P. Criminal Appeal No. S. 379 SB of 2003 2 Aggarwal conducted her MLR and found having 100% burns and on account of serious condition, she was referred to PGI Rohtak. SI Raghbir Singh reached PGI, Rohtak in order to record statement of Alka Devi but she was declared unfit to make statement by the concerned doctor. On 29.7.1998 she was declared fit to make statement by the doctor and her statement was got recorded from Bhupinder Nath, Judicial Magistrate Ist Class, Rohtak in which she was stated that the present incident took place at about 10.15a.m. In the morning she was present in the upper storey in the house of her husband; she had given petrol to someone. She did not know how she was feeling sleepy and that she had given that much statement ; then stated that a customer came. She poured petrol. Thereafter she did not know what happened. Both the boys ran away. She was in her kitchen but did not know what was working and that somebody was standing with her with danda and after she caught fire she started rolling on the ground and become unconscious but was having that much consciousness she was having at the time of statement and that she was having at the time of statement and that she was rolling herself. Then her husband Anil took her to Dr. Madan's hospital, Model Town, Panipat for medical treatment. There took place minor dispute in the family which was a routine and a dispute also took place on 27.7.1998 with her husband and that she was married about 2½ years back and was having a daughter aged 1½. Thereafter SI Raghbir Singh, obtained the copy of the said statement on 30.7.1998 and on the basis of which FIR was got registered under Sections 498-A and 307 of the IPC. On 1.8.1998 on receipt of VT message Criminal Appeal No. S. 379 SB of 2003 3 about the death of Alka, Section 302 of the IPC was added. Statements of the prosecution witnesses were recorded. After completion of necessary investigation challan against the accused was presented in the Court.
3. Copies of the documents were supplied to the accused as required under Section 207 Cr.P.C. The Illqua Magistrate committed the case to the Court of Session as the offence alleged against the accused was exclusively triable by the said Court. The trial Court framed charge under Section 304-B of the IPC against the accused to which they pleaded not guilty and claimed trial.
4. The prosecution in order to bring home guilt of the accused, examined Dr. Pankaj Aggarwal PW-1, Shri Bhupinder Nath, the then Judicial Magistrate Ist Class, Rohtak PW-2,MHC Rajinder Singh PW-3, Jagir Singh, Draftsman PW-4, Dr. S.S.Dahiya PW-5, DSP Shiv Dayal PW- 6, Madan Lal PW-7, Sant Lal PW-8, Pushpa Rani PW-9, Inspector Raghbir Singh PW-10, and the evidence of the prosecution was closed by order of the Court.
5. The accused were examined under Section 313 Cr. P. C. and all the incriminating evidence appearing against them were put to them to which they denied. Accused Anil Chawla further stated that death of his wife was accidental death in his absence when he came to house and hear the noise tried to save his wife by putting water and cloth on her. He took her to Madan's hospital and after that she was admitted in Civil Hospital, Panipat in order to save her life but she was referred to PGIMS, Rohtak and Criminal Appeal No. S. 379 SB of 2003 4 he spent huge amount on her treatment and he made all efforts to save her but she died because of huge burn injuries on her person. Accused did not lead any evidence in defence.
6. The trial Court, after hearing the learned counsel for the parties, convicted and sentenced the accused vide judgment dated 21.1.2003 and order dated 25.1.2003, as aforesaid.
7. Feeling dissatisfied with the aforesaid judgment dated 21.1.2003 and order dated 25.1.2003, the accused/appellant has directed the present appeal.
8. I have heard learned counsel for the parties and have gone through the records of the case.
9. Learned counsel for the appellant has submitted that the reliance of the prosecution is upon the dying declaration. In case the dying declaration is taken as it is, in that case, the ingredient of offence under Section 304-B, of the IPC are not made out.
10. Learned counsel for the appellant has further submitted that in order to prove the ingredients of offence under Section 304-B of the IPC, the prosecution is required to prove the following ingredients of offence :-
(i) That the death of a woman has taken place by burns or bodily injury or otherwise than under a normal circumstances.
(ii) Said death has occurred within seven years of her marriage.
(iii) Soon before her death that woman was subjected to cruelty or harassment by her husband or any relative of Criminal Appeal No. S. 379 SB of 2003 5 her husband in connection with demand of dowry.
11. It is submitted that the prosecution has failed to prove that it is a case of unnatural death. The deceased Alka in her dying declaration had stated that she suffered injuries due to sudden fire in the petrol can. So, it is a case of accidental death and not unnatural death. The trial Court has not considered this aspect of the case.
12. Learned counsel for the appellant has further submitted that the prosecution has failed to prove that deceased-Alka was ever subjected to cruelty in connection with demand of dowry articles at the hands of appellant. The star witnesses of the prosecution were father and uncle of the deceased. Both of them have not supported the case of the prosecution and have stated that deceased was kept nicely. The other witness of the prosecution i.e. PW-9 Pushpa Rani mother of the deceased-Alka, who has also been declared hostile by the prosecution. She has also not deposed about demand of dowry articles. In the examination-in-chief, she has stated about the demand of Rs.25,000/- by accused Anil Chawla. She has further started that Neetu sister of Anil offered to sell her bangles for Rs.25,000/- and gave to the accused but deceased Alka disproved the said proposal on the ground that her husband Neetu would comment. This witness has simply stated about the simple dispute. In the cross-examination, this witness has simply stated that accused and other co-accused were not happy with the dowry given at the time of marriage. She has again stated about the demand of Rs.25,000/- by Anil Chawla for business. The demand of Rs.25,000/- in connection with business cannot be said to be demand in Criminal Appeal No. S. 379 SB of 2003 6 respect of dowry articles. It is submitted that prosecution has failed to prove the ingredients of offence under Section 304-B of the IPC.
12. In support of his arguments, learned counsel for the appellant has relied upon the following authorities :-
1. Appasaheb and another vs. State of Maharashtra reported in (2007) 9 Supreme Court Cases page 721. ;
2. Modinsab Kasimsab Kanchagar vs. State of Karnataka and another (2013) 4 Supreme Court Case page 551 ;
3. Satvir Singh and others vs. State of Punjab and another reported in (2001) 8 Supreme Court Cases page 633 ; and
4. Sunil Bajaj vs. State of M.P. Reported in (2001) 9 SCC page 417.
13. Learned State counsel has supported the judgment and order passed by the trial Court and prayed for dismissal of the appeal.
14. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case with their able assistance.
15. So far as the submission made by counsel for the appellant that in dying declaration deceased has not made any allegation regarding demand of dowry articles against appellant is concerned, the Court cannot lost sight of the fact that according to the prosecution story deceased had one girl child of aged 1½ years. She might be interested in protecting the interest of minor daughter. Two glaring facts, which have come on the record from the dying declaration are that one how the petrol can came there and the deceased had stated that one person armed with danda was Criminal Appeal No. S. 379 SB of 2003 7 present there ? she has further stated that there was a dispute between her and her husband two days prior to the occurrence, although she has given date of quarrel on 27.7.1998. From the reading of the said dying declaration, it is further revealed that deceased Alka was not able to complete her dying declaration as according to the doctor due to injury she could not make complete statement and the matter was deferred to 9.00p.m. Father and uncle of deceased Alka might not have supported the case of the prosecution, keeping in view the future of minor daughter of deceased. Otherwise in the FIR, the complainant has categorically supported the prosecution case. No doubt, FIR is not substantive evidence but the statement of mother i.e. Pushpa Rani PW-9 is most relevant piece of evidence to prove the ingredients of offence under Section 304-B, of the IPC against the accused. She has categorically stated that demand of Rs.25,000/- was made by Anil Chawla appellant 15 days prior to the occurrence. In examination-in-chief, this witness has stated that they had spent huge amount on the marriage of Alka as per their status. In her cross-examination, this witness has stated that Anil Chawla and other co- accused were not happy with the dowry. This witness has further stated that Alka has told her that she was afraid of her life at the hands of appellant. She has also stated that Anil Chawla had taken Alka prior to her death. She has also stated that it is correct that Alka used to be harassed and beaten on account of insufficiency of dowry and further demand of dowry.
16. Mother of Alka although was declared hostile but the fact remains that she has supported the prosecution case on all material Criminal Appeal No. S. 379 SB of 2003 8 particulars regarding demand of dowry articles. In case, the amount of Rs.25,000/- is demanded even for business, in that case also, in view of decision of Apex Court in Surinder Singh vs. State of Haryana Criminal Appeal No.1791 of 2008 decided on 13.11.2013, the said demand is in connection with dowry articles. The contention of accused in the said case to the effect that demand of Rs.60,000/- in respect of business, is not a demand in connection with dowry was negativated by the Hon'ble Apex Court. In that case also, the Hon'ble Apex Court has dealt in the authority Appasaheb and another's case (supra). The case of Appasaheb and another's case (supra) was that demand of Rs.1000- 1200/- has been made in connection with daily expenses and for purchasing manure. That payment was not held to be in connection with demand of dowry. However, the mother of deceased has categorically stated that deceased Alka was subjected to cruelty in connection with demand of dowry articles.
17. In authority Modinsab Kasimsab Kanchagar's case (supra), there was demand of Rs.10,000/- to pay the loan of society. In that case, the Hon'ble Apex Court was convinced that prosecution has failed to prove the factum of demand of dowry articles by leading cogent evidence.
18. Authority Satvir Singh and others' case (supra) relates to offence under Section 498-A of the IPC and Section 306 of the IPC read with Section 511 of the IPC, the Hon'ble Apex Court has held that attempt to commit an offence is an essential condition when the attempt itself constitute an offence under the Indian Penal Code, Section 511 of the IPC Criminal Appeal No. S. 379 SB of 2003 9 is not attracted, under those circumstances, the accused were acquitted under Sections 306 read with Section 511 of the IPC. However, the sentence under Section 498-A of the IPC was upheld in the said case.
19. Authority Sunil Bajaj's case (supra) is distinguishable as in that case, the accused has demanded Rs.20,000/- and had illicit relations with girls of doubtful character and used to bring those girls to his house and those girls had beaten her. The prosecution has failed to prove that soon before her death woman was subjected to cruelty or harassment by her husband. Under those circumstances the accused was acquitted.
20. So far as the submission made by counsel for the appellant that unnatural death is not proved is concerned that submission is without any substance. The death has taken place due to burn injuries. PW-11 Dr. S.S.Dahiya, SMO, has categorically stated that Alka suffered about 99% burn injuries and cause of her death was ante-mortem burns which were sufficient to cause death in the ordinary course of nature. The stand taken by the appellant that accidental death is proved on the file, cannot be accepted as how the petrol can was there in the house and who was the person standing with danda as stated by deceased Alka in dying declaration have not been explained by the accused. Alka has not deposed against her husband as Indian lady wanted to live with her husband till her death and she might have afraid of the fact that her minor daughter is required to be looked after in case she died. The above said two circumstances have not been explained by the accused. The death has taken place in the house of the accused and the onus to clear those circumstances is upon the appellant. Criminal Appeal No. S. 379 SB of 2003 10 So, in view of the decision in Surinder Singh's case (supra), I have no hesitation in holding that prosecution has been able to prove the ingredients of offence under Section 304-B of the IPC.
21. The Parliament in its wisdom has enacted provisions of Section 304-B of the IPC as there could not be any eye-witness in case death has taken place in the four walls of the house of accused.
22. In authority Surinder Singh vs. State of Haryana Criminal Appeal No.1791 of 2008's case (supra) Hon'ble Apex Court has held that narrow and pedantic, literal and lexical construction of food laws is likely to leave loopholes for the offender to sneak out of the meshes of law and should be discouraged and criminal jurisprudence must depart from old canons defeating criminal statuses calculated to protect the public health and the nation's wealth. Again in the said authority another authorities Kisan Trimbak Kothula vs. State of Maharashtra reported in (1977) 1 SCC page 300 and State of Maharashtra vs. Natwarlal Damodardas Soni reported in (1980) 4 SCC page 689 held that a narrow construction given by the High Court was rejected on the ground that will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. The said cases related to offences in respect of Section 135 of the Customs Act and Rule 126 of the Defence of Indian Rules respectively.
23. So, in view of the above discussion, the appeal is without any merit and the same stands dismissed.
Criminal Appeal No. S. 379 SB of 2003 11
24. The accused/appellant is stated to be on bail. He be taken into custody to undergo the remaining part of his sentence.
25. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI ) JUDGE February 13 , 2014 sv