Punjab-Haryana High Court
Pale Ram vs State Of Haryana on 2 February, 2005
Equivalent citations: II(2005)DMC292
Author: Virender Singh
Bench: Virender Singh
JUDGMENT Virender Singh, J.
1. Pale Ram son of Mohli and his wife Kishni resident of village Samalkha, (District Panipat) stand convicted under Section 304-B of Indian Penal Code vide impugned judgment of learned Additional Sessions Judge, Panipat dated 24.2.1992 and have been sentenced to undergo RI for ten years. They have preferred the instant appeal. But the appellants are stated to be on bail as their sentence was suspended on 4.5.1992 by his Court during the pendency of the appeal.
2. Smt. Shiksha Devi is the deceased who had married to Ram Niwas son of the appellants on 1.7.1984 according to Hindu rites and customs. She died an un-natural death on 22.4.1990 in her in-laws' house. Ram Niwas is in army. The case set up is that Smt. Shiksha Devi committed suicide by consuming some poisonous material (aluminium phosphide initially and then set herself ablaze). Till her death she was having no issue.
3. Raj Singh (D.W.-1) of village Samalkha states that on 22.4.1990 at about 6 p.m. he noticed some smoke coming out of the house of the present appellants and when he reached there, he saw flames coming out of the kitchen. He noticed after scaling over the wall that Smt. Shiksha, Devi was lying dead after receiving burn injuries. He went to the Police Station Samalkha and got recorded his statement before P.W.-8 Sewa Singh SI/SHO and the latter immediately reached the spot; prepared the inquest report of the dead body; recorded the statements of certain persons who were present there; an intimation was sent to the parents of the deceased; on the next morning i.e., 23.4.1990, Mohinder Pal P.W.-5 brother of the deceased contacted SI Sewa Singh; submitted an application Ex. PG, on the basis of which formal FIR Ex. PG/1 under Section 304-B, I.P.C. was recorded. Mohinder Pal alleges that the appellants used to harass and torture his sister for bringing insufficient dowry and that previously also they had demanded TV set which they had supplied but when on the second time, she was sent to her parents' house they had demanded Rs. 20,000/- stating that in case the amount was not brought, she would be finished. It is then alleged that Smt. Shiksha Devi was not willing to go back to her matrimonial home but she was taken there by her brother Mohinder Pal. It is then alleged that Smt. Shiksha Devi was bearing a pregnancy of four months but as she was not given anything to eat by the appellants, for this reason the child had got aborted. Mohinder Pal then alleges that when he along with others went to village Samalkha, he saw Shiksha dead. She was first killed and then by putting kerosene oil, she was set ablaze.
4. SI Sewa Singh after taking over the investigation went to the spot on 23.4.1990, took one can made of plastic which was in burnt condition; one cot vide recovery memo Ex. PM; and one match box was also taken in possession. The statements of the father of the deceased and other relevant witnesses were recorded during the investigation on 26.4.1990. Both the appellants were arrested on 26.4.1990. Certain dowry articles were also taken from the house of the appellants vide memo Ex. PN. After the completion of the investigation the appellants were challenged to face trial. They were consequently charged under Section 304-B, I.P.C.
5. Although the prosecution in support of its case has examined as many as nine witnesses yet mainly the case of the prosecution hinges upon the statements of Mohinder Pal P.W.-5 and Mehar Singh P.W.-6, brother and father of the deceased who have strengthened the case of the prosecution on the point of demand of dowry and harassment.
6. Dr. Mahesh Parkash P.W.-1 had conducted the post mortem on the dead body of Smt. Shiksha Devi on 23.4.1990 and found certain pieces of clothes around her upper arm and waist. Smell of kerosene oil was also found present in the hair and body. Some frothing was also noticed from the nose. It was a case of 100% burns having various degree of burns all over the body except a patch on the back in the middle, back of the left hand and part of right palm. Some superficial burns were also there in the left palm without blacking of the palm. The cause of death was declared as shock due to extensive thermal burns. The viscera was also sent for chemical analysis and after the receipt of the report of the FSL Ex. PR, mis-witness on the application of the police opined vide Ex. PC that the cause of death was shock due to extensive burns along with aluminium phosphide (poisoning).
7. The investigation conducted by SI Sewa Singh has been detailed by me in the preceding paras of the judgment.
8. The stand taken by the appellants as emerges from their statements under Section 313, Cr. P.C. is that they have been implicated falsely in this case and in fact Shiksha Devi had not conceived after the marriage; she used to remain dejected all the time and for this reason she ultimately committed suicide.
9. In defence, the appellants have produced Raj Singh as D.W. 1. In fact this witness was given up by the prosecution as having been won over. Raj Singh had initially reported the matter to the police after he saw Shiksha Devi lying dead in the house of the appellants. He stated that on the fateful day, the present appellants were not in the village and they had gone to Panipat in order to purchase some medicines.
10. D.W.-2 Budh Ram is another witness who has a house adjacent to the house of the appellants. He states that the appellants had never harassed Shiksha Devi (since deceased) on account of any dowry demand and in fact she had committed suicide as she was not bearing the child.
11. D.W.-3 is Satpal son of Mehar Singh P.W.-6. He is real brother of the deceased. This witness was given up by the prosecution as unnecessary. In order to prove certain letters written by himself and his sister Shiksha Devi, this witness was brought into witness box. He states that letter Exs. D1, D2, D3 are in his hand. He further states that front side of letter Ex. D-4 is in his hand whereas the back portion of the said letter Ex. D4/A is in the hand of Shiksha Devi. Similarly back portion of the letter Ex. D5 is also in the hand of Shiksha Devi and letters Exs. D6 and D7 are in the hand of his father Mehar Singh.
12. I have heard Mr. Kuldeep Tiwari, learned Counsel appearing for both the appellants and Mr. Jatin Talwar, Advocate appearing for State of Haryana. With their assistance, I have also gone through the entire record minutely.
13. Mr. Tiwari contends that in the instant case the prosecution has not been able to discharge its initial burden in proving all the main ingredients attracting Section 304-B, I.P.C. According to the learned Counsel, may be that Shiksha Devi has died an unnatural death after five years and nine months of her marriage which otherwise comes within the period of seven years but the case of the prosecution is failing on a very material aspect to the effect that there is no convincing evidence to the effect that Shiksha Devi was ever subjected to cruelty or harassment by the appellants in connection with any demand for dowry much less soon before her death. Once this main ingredient is missing in the said case, it cannot be said to be a dowry death. In this regard he has drawn my attention to the statements of two star witnesses of the prosecution namely Mohinder Pal P.W.-5 brother of the deceased and Mehar Singh P.W.-6, the father.
14. Mr. Tiwari drawing my attention to the letters Exs. D-1 to D-7 especially Exs. D-l to D-3, D-4/A and D-5 contends that all the aforesaid letters are either written by Satpal D.W.-3, the real brother of Shiksha Devi since deceased or by Shiksha Devi herself and the recitals of the letters indicate that she was staying comfortably in her in-laws house and even when she came to her parental house (village Arainpura) she was absolutely alright and the complainant side had no grouse whatsoever with regard to any demand of dowry. Referring to the letters Mr. Tiwari then contends that most of the letters rather indicate that another brother of the complainant was to be adjusted in the army for which a request was made time and again to Ram Niwas the husband of the deceased. From all this Mr. Tiwari wants to develop that the relations were absolutely cordial between the complainant and the appellants side or atleast there was no harassment or cruelty at the hands of the appellant as alleged.
15. Another argument which is developed by Mr. Tiwari is that immediately when the matters was reported by Raj Singh D.W.-1 of Samalkha police on which DDR No. 21 was recorded, the inquest report was prepared by Sewa Singh SI/ SHO who reached the spot immediately. The said inquest report indicates that the present appellants had gone to Panipat to have some medicines from a private doctor and had reached village Samalkha, subsequently during the course of preparation of the inquest report. In the same stress Mr. Tiwari contends that the initial report Ex. PG indicates that Mohinder Pal has in fact been instigated to come up with the allegation saying that his sister was murdered whereas all the investigation conducted in this case goes to show that she has committed suicide.
16. Mr. Tiwari then makes an attempt to strengthen his case on the basis of the defence plea taken up by the appellants stating it to be very probable on the face of it. He then contends that Satpal the real brother of the deceased who was initially put in the list of witnesses was intentionally given up by the prosecution as having been unnecessary for the reason that prosecution knew it that in case he is examined, he was going to demolish the case of the prosecution as most of the letters were written by him to the husband of the deceased. This is the reason that the defence was constrained to examine him as one of the defence witnesses for the purposes of proving those letters.
17. On the basis of the aforesaid submissions, the learned Counsel submits that the prosecution has not been able to bring home guilt to both the appellants with regard to charge of Section 304-B, I.P.C.: they, as such, deserve acquittal.
18. Controverting the submissions of Mr. Tiwari, the learned State Counsel submits that Shiksha Devi had died an unnatural death within seven years of her marriage and right from the marriage she was being harassed till her death on account of demand of dowry by the present appellants and as such the presumption has to be drawn against them under Section 113-B of the Indian Evidence Act. The instant case, thus, falls within the mischief of Section 304-B, I.P.C. The learned State Counsel further contends that since a married woman had died an unnatural death within four walls of the house of her in-laws, the burden shifts on the accused-appellants to explain her unnatural death. The same has not been discharged by the appellants and as such they have no escape from their liability. The conviction as recorded by the learned Trial Court deserves to be affirmed.
19. After hearing rival contentions of either side and perusing the entire record minutely, I am of the considered view that the prosecution has not been able to prove its case to the hilt qua both the appellants for the charge framed and as such they deserve acquittal. My reasons for arriving at the said conclusion are set out as under:
20. As held in Yashoda and Anr. v. State of M.P., I (2004) CCR 201 (SC) : 2004(1) RCR (Crl.) 850 (SC), that no straitjacket formula can be set down to determine as to what would constitute the word "soon before" occurring in Section 304-B, I.P.C. It has to be decided on the facts and circumstances of each case. It is further held by Their Lordships in the aforesaid judgment that Court cannot imagine events about which there is absolutely no evidence on record.
21. In another judgment of Hon'ble Supreme Court rendered in State of Andhra Pradesh v. Raj Gopal Asawa and Anr., 2004 (2) RCR (Criminal) 330 (SC), while discussing the presumption to be drawn under Section 113-B of Evidence Act for the offence of Section 304-B, I.P.C., it has been held that the expression "soon before death" cannot be defined in terms of period. The incident of cruelty should not be stale enough and if the incident ceases to disturb the mental equilibrium, it will not come within the expression "soon before death". In the aforesaid case another judgment of Hon'ble Supreme Court rendered in Hira Lal v. State (Government of NCT), Delhi, I (2003) CCR 131 (SC) : 2003 (8) RCR (Criminal) 830 (SC), was relied. It is observed in Raj Gopal Asawa's case (supra) that for drawing the presumption, one of the essential ingredients, amongst others, is that the concerned woman must have been "soon before her death" subjected to cruelty or harassment "for in connection with the demand of dowry."
22. In another judgment rendered in Arvind Singh v. State of Bihar, : II (2001) CCR 186 (SC) : 2001 (2) RCR (Crl.) 631 (SC), it has been held while dealing with the case of Section 304-B, I.P.C. that no doubt the in-laws are supposed to explain circumstances of death but initial burden remains on the prosecution to prove the guilt beyond reasonable doubt and unless the initial burden is discharged, the conviction is un-sustainable.
23. Let us examine the evidence on the file in the light of the observations made herein above in the aforesaid judgments.
24. Admittedly, the death in this case is after five years and nine months. The other admitted position is that Shiksha Devi (since deceased) was having no issue. In the initial complaint Ex. PG or even in the substantive evidence it has come that the deceased was carrying the pregnancy of four months prior to her death but she had to go in for abortion. The reason given is that she was not being given anything to eat but the fact remains that there is no evidence with regard to carrying pregnancy or any abortion except the oral statements of brother and the father of the deceased. In Ex. PG, also Mohinder Pal complainant who is real brother of the deceased has not given any date of meeting the demand of television by them. The only fact which is mentioned in the initial complaint is that after the marriage, the girl was being harassed by the appellants for a television set and when given, rejected saying it, to be Desi one. It is then mentioned that at two occasions, the deceased had come to her parental house and apprised them of another demand of Rs. 20,000/- being made by the appellants saying that in case the same is not met, she would be killed. However, there is no date regarding this demand also. When Mohinder Pal stepped into witness box as P.W.-5, he states that a demand of Black and White T.V. was made in February, 1990 which was given. The grouse of the appellants was that it was Desi T.V. He then states that marriage of his cousin was to be performed on 1.4.1990 and since deceased was not happy in those days, it was enquired from her as to what was the reason, she stated that her parents-in-law (appellants) had demanded Rs. 20,000/- from her. He further states that since the said amount could not be paid by them, he took his sister to her in-laws house after persuading her. However, in a substantive statement Mohinder Pal also talks of the child being aborted. He then states that a police man came to their village and informed about the death of his sister and thereafter they went to Samalkha. P.W.-8 Mehar Singh the father of the deceased states that the demand of Black and White T.V. was made in March, 1990. However, he is toeing the version of his son so far as another demand of Rs. 20,000/- made in April, 1990 is concerned. The aforesaid two witnesses have been confronted on many material points with regard to initial expenditure on the marriage of Shiksha in the year 1984 and also on account of the infirmities with regard to demand of dowry but in his cross-examination Mohinder Pal states that Shiksha Devi was interested in accompanying her husband to the place of his posting as he was in Military service and, therefore, she used to remain sad. With regard to the letters he shows his ignorance saying that his sister might have written some letters. Another glaring fact which is worth noticing is that Mehar Singh father of the deceased had entered into second marriage with one Shakuntla Devi about 6/7 years prior to the death of Shiksha Devi and at the time of her death he was having an infant child aged about 4/5 months. (On the date of examination of this witness i.e., 10.9.1990, the age is said to be 8/9 months). With regard to abortion of the pregnancy, this witness states in his cross-examination that he was not there in the native village at the time of abortion but his sister was shown to a midwife.
25. From the aforesaid discussion, one fact is very sparkingly evident that there was no demand in cash or otherwise immediately after the marriage i.e., from July, 1984 and then upto February, 1990 when first demand of Black and White T.V. is made by the present appellants. This allegation on the face of it is not acceptable to me. In case the present appellants were really the greedy persons, they should have made this particular demand right from the very beginning, may be within a year or so. After the lapse of more than five years, in any eventuality, after such a long intervals such type of demand takes a back seat. Another demand in the shape of Rs. 20,000/- allegedly made by the appellant after Black and White T.V. was discarded as Desi-T.V., in my considered view, is neither here nor there for a very simple reason that there is no date or lime in this regard. This aspect can also be assessed in the light of the proved letters on the file. As is clear from the statement of Sat Pal D.W.-3, the real brother of the deceased that letters Ex. D-4 is also in his hand and the other portion of the said letter Ex. D-4/A is in the hand of Shiksha Devi and some portion of letter Ex. D-5 is also in the hand of Shiksha Devi. The perusal of those letters goes to show that the deceased was staying very comfortably in her in-laws house or even in her parents house when she was staying with them on different occasions including in the month of January, 1990. It is the admitted case of the complainant that Shiksha Devi went to their village Arainpura as she was called there to attend the marriage of one of their nearest relations. The three letters written by Sat Pal indicate that a request was being made for making all out efforts to get Mohinder Pal and Mahipal (persons from the family of complainant) employed in the army. This appears to be very natural request as husband of the deceased was already in the army and a request could very well be made to him. Some admitting writing of Shiksha Devi on some portion of the letter Ex. D-4/A and Ex. D-5 also speaks volumes of the fact that everything was cordial. Even one of the letters indicates that Shiksha Devi was thinking of going back to her matrimonial home after staying with her parents for some time. It is surprising that if the life of Shiksha Devi was running so smooth upto January, 1990, how on one fine morning, there can be any demand of any type from the side of the appellants especially when admittedly there is no demand for about five years. In the same stream, the another demand of Rs. 20,000/- could not possibly be there and the allegation on this regards has to be discarded having no basis.
26. At the same time, this Court cannot ignore the inquest report prepared in this case, after Raj Singh D.W.-1 a resident of Samalkha had reported the matter to the police after noticing flames coming out from the house of the appellants from a particular room, Sewa Singh SI/SHO of Police Station, Samalkha, reached the spot, saw Shiksha Devi dead in a burnt condition, lifted match box, certain burnt clothes from the place of occurrence and then prepared the inquest report which indicates that at the time of the preparation of the inquest report, the present appellants were not there as they had gone to Panipat to have some medicines from the doctor and came subsequently. After the appellants reached the spot, their statements were also recorded. It is mentioned by the Investigating Officer in the said inquest proceedings, that Shiksha committed suicide and one of the factors was that she was not conceiving.
27. In my considered view, the appellants have been able to prove to a great extent that Shiksha Devi had committed suicide mainly for the reason that she used to remain disturbed most of the time for not conceiving. It can be seen, yet, from another angle when Mohinder Pal the real brother of the deceased has said in his substantive statement that her father Mehar Singh had contracted second marriage and was also having an infant child of the age of about 4/5 months at the time of death of Shiksha. This can be visualized still from another angle when there is some oral evidence to the effect that Shiksha Devi had to go in for abortion 3/4 months before his death. However, I do not agree with the allegation that due to beatings given to the deceased, the abortion had taken place but I am certain that if at all she went in for abortion, this must have disturbed her a lot. After all she was issue less for a considerable time (5 years). One of the letters also indicates that her Bhabhi (brother's wife) had also delivered a child. Another fact which is also equally important is that she wanted to join her husband at the place of her posting and for that reason she also could be a little bit disturbed. Mehar Singh had also contracted the second marriage and was having an infant child of a few month 3 at the time of death of his daughter. On the other side, the deceased was issue-less.
28. All the aforesaid factors when taken collectively, can certainly be a cause of concern which was disturbing her equilibrium. She consequently committed suicide on account of her mental destability. It appears that the deceased consumed some insecticide (poison) which is commonly available in the village in every house and thereafter immediately thought of finishing herself by setting herself on fire. The appellants cannot be held liable for that Ex. PG appears to be an outcome of some ill advice wherein taking an undue advantage of the so-called un-natural death, Mohinder Pal the brother has stated that his sister was killed. The medical evidence coupled with the investigation conducted in this case indicate that it is not a homicidal death at all. Even otherwise the charge is for the offence punishable under Section 304-B, I.P.C. and whole of the evidence has to be assessed within the ambit of the charge framed.
29. In the sequel to what is discussed hereinabove, it can be safely concluded that although Shiksha Devi (since deceased) has died in her in-laws house within seven years of her marriage, yet the prosecution has miserably failed to prove that she was subjected to cruelty or harassment in her in-laws house by the present appellants in connection with any demand for dowry "soon before her death". Consequently, the conviction of both the appellants for the charge of Section 304-B, I.P.C. must fail.
30. Resultantly, the present appeal is allowed, both the appellants are acquitted of the charge. They shall be discharged of their bail bonds henceforth.