Punjab-Haryana High Court
Kulwant Singh And Another vs State Of Haryana on 18 January, 2012
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1333-SB of 2002
Date of decision: 18th January, 2012
Kulwant Singh and another
... Appellants
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Ashwani Talwar, Advocate with
Ms. Vibha, Advocate for the appellants.
Mr. Amandeep Singh, Assistant Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J.
Sadhu Ram complainant PW-6 was father of four daughters and two sons. One of his daughters, namely Mukesh in the year 1996 was married with Kulwant Singh-appellant No.1. On 23rd April, 2001 Mukesh, in her matrimonial home, was found dead. She died due to hanging. The death of Mukesh led her father Sadhu Ram to lodge FIR Ex.P35. Translation of the FIR in English has been reproduced by the trial Judge in para No.2 of the impugned judgment. For facility of reference, the same is reproduced herein below:
"I am Sadhu Ram son of Matu Ram, caste Harijan Chammar, r/o Bapora and aged about 50 years. I have four daughters and two sons. My eldest daughter is Bimla, who is married in village Balsmand and younger to her was Mukesh, aged about 22-23 years, married to Kulwant son Criminal Appeal No.1333-SB of 2002 2 of Ram Singh, Chamar Harijan, r/o 12 Quarter, Hisar. She was married to him about four years back. Mukesh gave birth to a female child, who is two years of age. After six months of marriage of Mukesh, her mother-in-law Santro Devi wife of Ram Singh and her Dewars Hukam Singh and Balwan Singh and her husband Kulwant Singh were harassing Mukesh Rani on the ground that she had brought less dowry. I had spent a sum of Rs.1,00,000/- at the marriage of Mukesh, according to my financial status. I had given all household articles, but mother-in-law of Mukesh Rani, her Dewar and her husband were demanding a sum of Rs.10,000/- for the fridge. They gave beating to my daughter Mukesh and sent her to parental home. My daughter Mukesh remained in my house for one month and thereafter, Krishan son of Nanu Ram, Ravi Dass son of Nanu Ram r/o Bagesawri Distt. Bhiwani along with the uncle of Kulwant and Santro and Kulwant, my son-in-law, came to our village Bapora in the shape of Panchayat and assuring us that now Mukesh will not be harassed, took Mukesh to their house. About 2-1/2 years back, my daughter was pregnant and they again put forward the demand of dowry and after beating Mukesh Rani, they turned her out of the matrimonial home and told her that she should bring money, otherwise she would not be kept in their house. My daughter Mukesh remained at my house and she delivered the child about two years back. My daughter Mukesh remained in the parental house for 1-1/2 years. On 10.12.2000, again her in-laws came in the shape of Panchayat and there was the decision before the Panchayat that they would not harass Mukesh. They also produced an affidavit to this effect.
On 23.4.2001, I received the telephonic message from one Ram Karan Nai s/o Chiranji Lal Nai r/o 12 Quarter, Hisar at about 6.00 or 7.00 in the evening in the house of Criminal Appeal No.1333-SB of 2002 3 neighbourer Bal Mukand that my daughter had died and that we should come to Hisar. On this information, I and my brother Kartar Singh s/o Perbhati Lal Chammar r/o Bapora and my son Ashok, came to Hisar and reached the matrimonial home of my daughter in the area of 12 Quarter, Hisar. We inquired about the death of my daughter and came to know that my daughter Mukesh had been murdered by strangulation with the common intention of my son-in-law Kulwant and Santro mother-in-law of my daughter and Devers of my daughter namely Balwan and Hukam Singh for having brought less dowry. My statement has been recorded."
The investigating agency, in pursuance of the FIR Ex.P35, concluded the investigation and submitted a report under Section 173 Cr.P.C. for trial of husband Kulwant Singh, mother-in-law Santro Devi, and two young brothers of Kulwant Singh namely Balwan and Hukam Singh. Since Hukam Singh was a juvenile, his trial was entrusted to the appropriate Juvenile Board.
The case qua remaining accused was committed to the Court of Sessions and for trial was entrusted to the Court of Additional Sessions Judge (Adhoc), Hisar, who vide impugned judgment dated 26th August, 2002 held Kulwant Singh guilty of offences punishable under Sections 304-B and 498-A IPC. Santro Devi was acquitted under Section 304-B IPC and was convicted for an offence punishable under Section 498-A IPC only. However Balwan, younger brother of Kulwant Singh, was acquitted of both the charges. Vide a separate order dated 28th August, 2002, accused Kulwant Singh was sentenced to undergo rigorous imprisonment for a period of seven years and three years under Sections 304-B and 498-A IPC respectively. Whereas, accused Santro Criminal Appeal No.1333-SB of 2002 4 Devi was sentenced to undergo rigorous imprisonment for a period of three years under Section 498-A IPC. Each of the accused was also directed to pay a fine of Rs.500/- under Section 498-A IPC, and in default thereof to further undergo rigorous imprisonment for six months.
Aggrieved against the conviction and sentence recorded by the trial Court, the appellants have preferred the present appeal.
The FIR, which contained necessary facts, has already been detailed in the earlier part of this judgment. Prosecution, in all, had examined nine witnesses. Sadhu Ram complainant appeared as PW-6. He reiterated as to what was stated in the FIR. He stated that his daughter Mukesh was married with Kulwant on 3rd December, 1996. He had spent about rupees one lakh on the marriage. The accused, for the initial six months of marriage, were keeping Mukesh cordially in their house, however thereafter, they started giving beatings to her and were demanding Rs.10,000/- for purchase of a fridge. All the family members, i.e. Kulwant Singh-husband, Santro Devi mother-in-law, Balwan Dewar (younger brother of husband) of Mukesh used to often beat her. Therefore, the complainant along with his brother brought Mukesh to her parental house. About 1½ months thereafter, the accused came and assured that they will not cause beatings to Mukesh and on this assurance, Mukesh was sent back to her matrimonial home. At the time when Mukesh was brought to her parental house, she was pregnant and she delivered a female child during her stay in the house of complainant. The accused had given an affidavit Ex.P34 giving assurance therein that they will not give beatings to Mukesh and will maintain cordial relations with her. On 23rd April, 2001, the complainant received an information Criminal Appeal No.1333-SB of 2002 5 from Ram Karan Nai of Hisar, who was instrumental to the solemnization of matrimonial alliance, that the daughter of complainant has died. The complainant party reached at the house of accused and found that Mukesh was lying dead on a cot in the house of the accused. She was having a ligature mark on the neck. In cross-examination, this witness was confronted with the FIR Ex.P35 regarding details which are not of much significance. This witness further stated that at the time of marriage, Ram Singh father of Kulwant, Balwan and Hukam Chand was alive. He was working in the office of Haryana Roadways. A lot of cross- examination of the complainant was conducted qua the co-accused Balwan Singh and Hukam Chand, who are not before this Court. This witness admitted that he had not convened any Panchayat after Mukesh was brought from her matrimonial home to her parental house.
Kartar Singh PW-8 corroborated the testimony of Sadhu Ram complainant PW-6. He stated that Sadhu Ram, father of deceased Mukesh, was his uncle's son (Taya). The defence could also make no dent in the testimony of this witness and failed to gain anything to their advantage.
Dr.Sanjay Sheoran PW-1 stated that he had conducted autopsy on the dead body of Mukesh on 24th April, 2001. He found presence of a reddish brown ligature mark, 0.75 cm x 2.50 cm in width and differently placed, extending from left occiput to above thyroid cartilage anteriorly over the right mastoid region obliquely. The clinical observations of the doctor can be noticed as under:
"On dissection of the dead body sub cutaneous tissues under the mark is white. Underline muscles were Criminal Appeal No.1333-SB of 2002 6 normal. Rigorous mortis were present in all four limbs. Post mortem staining was present in dependent part of the dead body. Face was congested. Eyes were semi open. Mouth was closed. No mark of any injury present anywhere on the body. Larynx entrieca were congested. Tracia contained frothy secretions. Both lungs were congested. Mouth pharynx and esobhagus were congested. Stomach was congested, containing semi solid blood material. Lever splin and kidneys were congested. Rest of organs were healthy. The uterus was non gravid."
This witness opined that the cause of death in this case was asphyxia as a result of hanging which was ante-mortem in nature.
Subhash Draftsman PW-2 had prepared the scaled site plan Ex.P25 of the spot with correct marginal notes.
Head Constable Miya Singh PW-3 had photographed the place of occurrence. He proved photographs Ex.P29 to Ex.P31 along with their negatives Ex.P26 to Ex.P28. Constable Dharambir PW-4 and Head Constable Dharampal PW-5 tendered their affidavits Ex.P32 and Ex.P33 respectively to prove link evidence. Inspector Balram PW-7 had prepared the report under Section 173 Cr.P.C. SI Subh Ram PW-9 proved various facets of the investigation.
Thereafter, prosecution closed its evidence and statements of the accused were recorded under Section 313 Cr.P.C. They denied all the incriminating circumstances put to them.
Kulwant Singh-appellant stated that he used to serve at Chandigarh and was visiting Hisar after every 10/15 days. He came from Chandigarh to Hisar on 24th April, 2001 in the morning and found the Criminal Appeal No.1333-SB of 2002 7 dead body of his wife. He further stated that he was arrested by the police on the same day.
Appellant Santro Devi pleaded false implication. I have heard Mr.Ashwani Talwar, Advocate assisted by Ms.Vibha, Advocate appearing on behalf of the appellants and Mr.Amandeep Singh, Assistant Advocate General, Haryana for the State.
Mr. Talwar has relied upon 'Sakharam v. State of Maharashtra' 2003(12) SCC 368 to contend that in case of dowry death, all the relatives cannot be held responsible and prosecution has to prove its case qua each accused. A further reliance has been placed upon 'Durga Prasad v. State of M.P.' 2010(3) RCR (Criminal) 219 to contend that mere bald assertion that the accused were harassing the deceased wife is not sufficient to uphold demand of dowry until some specific evidence is produced by the prosecution. In support of this contention, learned counsel has also relied upon 'Tarsem Singh v. State of Punjab' 2009(1) RCR (Criminal) 573.
In nutshell, the main thrust of the argument advanced by counsel for the appellants is that mere saying of Sadhu Ram complainant PW-6 and Kartar Singh PW-8 that the accused were demanding Rs.10,000/- for purchase of a fridge should not be believed by this Court as no corroborative evidence is forthcoming. It is stated that bald assertion on this count should be discarded as no member of Panchayat, co-villager or independent person has been examined to prove this fact. Thus, the counsel has submitted that even if the allegation of beatings to the deceased is taken into consideration, the Criminal Appeal No.1333-SB of 2002 8 case will fall under Section 306 IPC and not under Section 304-B IPC. It is submitted that appellant-Kulwant Singh has undergone an actual sentence of 3 years and 9 days out of the maximum sentence of 7 years awarded, whereas appellant-Santro Devi has undergone 1 year, 5 months and 4 days out of the total sentence of 3 years awarded under Section 498-A IPC.
Counsel for the State has submitted that ingredients of the offence punishable under Section 304-B IPC are fully made out. The deceased died within seven years of her marriage. The testimonies of Sadhu Ram PW-6 and Kartar Singh PW-8 proved that the deceased was harassed, maltreated and subjected to cruelty for demand of dowry. Furthermore, death of Mukesh was unnatural and thus, offence under Section 304-B IPC is rightly made out against appellant-Kulwant Singh.
I have given my thoughtful consideration to the rival submissions advanced by counsel for the parties. Even if the argument advanced by counsel for the appellants that the demand of a fridge was raised after six months of the marriage is accepted, this Court has no hesitation to hold that such a demand is to be construed as the demand of dowry. What is material to be noticed is the explanation added to Section 304-B IPC which states that for the purpose of sub-section 304- B (1) IPC, dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.
This Court in 'Makhan Singh v. State of Punjab' (Criminal Appeal No.697-SB of 1997 decided on 29th January, 2010), had held that a perusal of the explanation added with Section 304-B IPC will reveal that the meaning of dowry is to be construed as has been defined Criminal Appeal No.1333-SB of 2002 9 in Section 2 of the Dowry Prohibition Act, 1961. In Makhan Singh's case (supra), it was observed as under:
"What is material to be noticed is that by Act No.43 of 1986, in section 2 of the Dowry Prohibition Act, 1961, words "or any time after the marriage" were added. Therefore, the scope of this section was broadened. Giving of any property/valuable security now is not restricted "at or before the marriage". In order to attract section 304-B IPC, following ingredients are required to be proved by the prosecution:
(1) The death of woman had occurred in the
circumstances other than normal.
(2) Such death occurred within seven years of her
marriage.
(3) Soon before her death, the woman was
subjected to cruelty or harassment by her
husband or any relative of her husband.
(4) Such cruelty or harassment was in connection
with the demand of dowry.
This legal position was considered by Hon'ble Apex Court in 'Prem Kanwar v. State of Rajasthan' 2009 (3) SCC 726 and it was held as under:
'The offence alleged against the accused is under Section 304-B IPC which makes "demand of dowry" itself punishable. Demand neither conceives nor would conceive of any agreement. If for convicting any offender, agreement for dowry is to be proved, hardly any offenders would come under the clutches of law. When Section 304-B refers to "demand of dowry", it refers to the demand of property or valuable security as referred to in the definition of "dowry" under the Act. The argument that there is no demand of dowry, in the present case, has no force. In cases of dowry deaths and suicides, Criminal Appeal No.1333-SB of 2002 10 circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect. It is significant that Section 4 of the Act, was also amended by means of Act 63 of 1984, under which it is an offence to demand dowry directly or indirectly from the parents or other relatives or guardian of a bride. The word "agreement" referred to in Section 2 has to be inferred on the facts and circumstances of each case. The interpretation that the accused seek, that conviction can only be if there is agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. "Dowry" definition is to be interpreted with the other provisions of the Act including Section 3, which refers to giving or taking dowry and Section 4 which deals with a penalty for demanding dowry, under the Act and the IPC. This makes it clear that even demand of dowry on other ingredients being satisfied is punishable. It is not always necessary that there be any agreement for dowry.' It is further held in Prem Kanwar's case (supra) that no straight jacket formula can be laid down as to what would constitute a period of soon before the occurrence. The following words of the above said judgment are important to be noticed:
'Suffice, however, to indicate that the expression 'soon before' would normally imply that the 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 Criminal Appeal No.1333-SB of 2002 11 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 'Pawan Kumar v. State of Haryana' 1998 (3) SCC 309, it was held that in cases of dowry deaths and suicides, circumstantial evidence plays an important role and inference can be drawn on the basis of such evidence. The evidence could be either direct or indirect. In Pawan Kumar's case (supra), effect of amendment in Dowry Prohibition Act was considered."
In the present case, Mukesh was turned out of her matrimonial home. Thereafter, the accused went and brought her back on the assurance that she will not be subjected to any cruelty. This Court cannot become oblivious of the material document, i.e. the affidavit Ex.P34 furnished by Smt. Santra, wherein she had stated that her sons will keep Mukesh without any complaint and no beatings shall be given to her. It is in this context that the assertion made by Sadhu Ram PW-6 and Kartar Singh PW-8 assumes importance that Mukesh was subjected to maltreatment because of the demand of dowry. Thus, the offence punishable under Section 304-B IPC is made out against appellant-Kulwant Singh. Consequently, there is no merit in the appeal preferred by appellant-Kulwant Singh, and the same is dismissed. However, it is ordered that the sentence awarded to him under Sections 304-B IPC and 498-A IPC shall run concurrently.
Appellant-Santro Devi has been awarded three years rigorous imprisonment under Section 498-A IPC. She is a lady and at the time of framing of charge on 13th August, 2001, she was aged more Criminal Appeal No.1333-SB of 2002 12 than 46 years. Taking into consideration the age of appellant-Santro Devi and the fact that she has suffered mental pain and agony of a protracted trial, this Court is of the view that the ends of justice will be fully met in case the sentence awarded to her is reduced from three years to one year and five months rigorous imprisonment, i.e. the period already undergone by her as per the affidavit furnished by the Superintendent Central Jail, Hisar.
With the observations made above, present appeal is disposed of.
[KANWALJIT SINGH AHLUWALIA] JUDGE January 18, 2012 rps