Crl.Appeal No.949-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.949-SB of 1999 Date of Decision:19.09.2013 Mulkh Raj and others .....Appellants Versus State of Punjab .....Respondent CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Jatinder Kumar, Advocate, for Mr.APS Shergill, Advocate, for the appellants. Mr.K.S.Aulakh, Assistant Advocate General, Punjab, for the respondent-State. ****
MEHINDER SINGH SULLAR , J.(oral) The epitome of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, as claimed by the prosecution, is that the marriage of appellant-Baldev Raj son of Mulkh Raj was solemnized with Darshana Rani, sister of complainant-Sada Lal (PW3)(for brevity “the complainant”), 1½ years prior to the present occurrence, according to customary rights and ceremonies at village Kutti. The accused were not satisfied with the dowry. They started harassing her on account of bringing insufficient dowry, as per their expectations. The complainant had come once or twice to village Goluka and requested the accused not to put pressure on his sister, to bring dowry articles, but in vain. Thereafter, the complainant was stated to have Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh narrated about their behaviour to Sarpanch Tarsem Lal(PW4) and Ex- Sarpanch Dattar Singh(PW5). They also went to village Goluka and requested the accused not to harass Darshana Rani. The accused started continue demanding dowry articles and cash etc. On receipt of message, the complainant has taken her sister Darshana Rani to his village, where she again narrated her entire tale of woe with regard to the demand of dowry by the accused. The complainant and his brother agreed to meet their demand of dowry later on.
2. The case of the prosecution further proceeds that on 02.08.1996, the complainant and Tarsem Lal, Sarpanch had gone to the matrimonial home of Darshana Rani, to inquire about her welfare. At about 8.00 PM, as soon as, they reached her matrimonial home, then they heard screams from inside the room. On suspicion, the complainant and Tarsem Lal, Sarpanch, entered into the room and noticed that Darshana Rani was making hue and cry and was proclaiming that Des Raj, Suman and Mulkh Raj had put her on fire and burnt her. She felled on the ground after receipt of burn injuries and died at the spot. However, the accused decamped from the house.
3. Leveling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that Darshana Rani had died an unnatural death within a period of two years of her marriage and the accused have committed the crime/dowry death on account of demand of dowry. In the background of these allegations and in the wake of complaint(Ex.P7) of complainant-Sada Lal, the present case was registered against appellants-Baldev Raj son of Mulkh Raj(husband), Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh Mulkh Raj son of Jagan Nath(father-in-law), Ashok Kumar son of Mangat Ram(brother-in-law)(Jija) and accused Des Raj son of Mulkh Raj (brother-in-law), Asha Rani and Suman(sister-in-laws), vide FIR No.67 dated 02.08.1996(Ex.P7/B), on accusation of having committed the offences punishable under Sections 148, 302/149 and 304-B IPC, by the police of Police Station Guru Har Sahai, District Ferozepur, in the manner depicted here-in-above.
4. During the course of investigation, the remaining accused were found innocent and were exonerated by the police. However, after completion of the investigation, final police report(challan) was submitted against the appellants-Mulkh Raj, Baldev Raj and accused Des Raj @ Sukhdev Raj. In pursuance of the application under Section 319 Cr.P.C. moved on behalf of the prosecution, accused Ashok Kumar and Asha Rani were also summoned as an additional accused, to face the trial for the commission of offences in question, by way of order dated 11.03.1997 by the trial Court.
5. Having completed all the codal formalities, they were charge-sheeted for the commission of offences punishable under Sections 148, 302/149 and 304-B IPC by the trial Court. As, they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.
6. Sequelly, the prosecution in order to substantiate the commission of crime against the accused, examined PW1-Dr.B.R.Arora, who along with Drs.Renu Singla and S.L.Dua, conducted the post- mortem examination on the dead-body of Darshana Rani on 03.08.1996, Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh by virtue of MLR(Ex.P1), pictorial diagram(Ex.P2) showing the seat of injuries on police request(Ex.P3) accompanied by inquest report(Ex.P4) and found the burn injuries on her dead body. Post-mortem staining was present at her back. According to the doctors, cause of death was due to shock and excessive ante-mortem burns, which were sufficient to cause death. He has also proved the police request(Ex.P5) and made his endorsement(Ex.P5/A) on it. PW2-Sunder Singh, Draftsman, prepared the scaled site plan(Ex.P6) at the instance of complainant-Sada Lal with its correct marginal notes. PW10-Surinder Kumar, Photographer, snapped the photographs of the dead body(MO-7 to MO-12) through the medium of negatives(MO-1 to MO-6).
7. Likewise, the prosecution has examined complainant-PW3 Sada Lal, PW4 Tarsem Lal, Sarpanch and PW5-Dattar Singh, Ex- Sarpanch. Although, they were material witnesses, but instead of supporting, they have demolished the prosecution version in its totality and were declared hostile. According to PW6-Parshotam Chand and PW7-Ramesh Kumar, about 20-21 days prior to the present occurrence, they had gone to the house of Mulkh Raj in village Goluke, to inquire about the welfare of appellant-Baldev Raj. Darshana Rani tried to prepare sweet water for them, then her sister-in-law snatched the sugar- pot and gave a slap on her face. They felt annoyed and narrated the incident to appellant-Mulkh Raj, but he did not take any action against her. They have also informed Harbans Lal and Ashok Kumar, but in vain. In other words, they have not uttered a single word with regard to harassment and cruelty in connection with and on account of demand of Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh dowry soon before her death.
8. Similarly, the evidence of PW8-Prem Kumar is to the effect that he has joined the investigation and the police took into possession broken bangles, cot, burnt clothes, match-box, three pairs of chappals, an empty phial of medicine, two flower pots of plastic, burnt cotton strips and one steel chair etc. from the place of occurrence vide recovery memos(Exs.P8 to P11). PW11-Mohan Lal has only very vaguely stated that the deceased was his niece. The accused used to maltreat her and demanded scooter and more dowry articles. He has told the accused that their demand would be fulfilled later on. On the fateful day(2.8.1996), he had gone to the matrimonial home of Darshana Rani, where she was lying dead on the ground in a burnt condition.
9. Now adverting to the evidence of police officials, PW13-ASI Harbans Singh has recorded the statement(Ex.P7) of complainant-Sada Lal. He signed the same in token of its correctness. He made his endorsement(Ex.P7/A) and sent it to the police station for registration of the case, on the basis of which, formal FIR(Ex.P7/B) was recorded by SHO Rachhpal Singh. He identified his signatures. Thereafter, he reached the house of Mulkh Raj and got snapped the photographs of the dead body of Darshana Rani. He has also proved the inquest report (Ex.P4) and sent the dead body for post-mortem examination. He recorded the statements of the witnesses as well.
10. In the same sequence, PW12-SI Mukhtiar Singh, on receipt of information on 02.08.1996, reached the house of Mulkh Raj in village Goluke, where ASI Harbans Singh was already present there. On Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh 03.08.1996, he inspected the spot and took into possession two half burnt flower pots, three pairs of chappals, one steel chair and cot(MO-13 to MO-23) vide recovery memos(Exs.P9 to P11) attested by the witnesses. He prepared the rough site plan(Ex.P13) of the place of occurrence with its correct marginal notes and recorded the statements of the witnesses. He has also taken into possession golden ring, nose-pin, two ear-pins etc. by way of recovery memo(Ex.P14). He has further testified his entire investigation. PW9-HC Rajinder Singh and PW14-C.Hakam Singh, are formal witnesses and have only tendered into evidence their respective affidavits(Exs.P12 and P17) to complete the chain of link evidence. This is the total evidence brought on record by the prosecution.
11. After the close of the prosecution evidence, the statements of the accused were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. They have stoutly denied the prosecution evidence in its entirety and pleaded false implication. However, they did not prefer to produce any evidence in their defence, despite opportunity.
12. Taking into consideration the entire evidence bought on record by the prosecution, the trial Court acquitted all the accused, for the commission of offences punishable under Section 148 and 302 read with Section 149 IPC and accused Des Raj(brother-in-law) and Asha Rani (sister-in-law) were acquitted under Section 304-B IPC as well. The State of Punjab-respondent did not file any appeal to challenge their acquittal. At the same time, appellants-Baldev Raj(husband), Mulkh Raj Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh(father-in-law) and Ashok Kumar(brother-in-law)(Jija) were convicted for dowry death and sentenced to undergo rigorous imprisonment for a period of ten years, to pay a fine of Rs.2,000/- and in default thereof, to further undergo rigorous imprisonment for a period of six months, for the commission of an offence punishable under Section 304-B IPC, by means of impugned judgment of conviction and order of sentence dated 17.09.1999 by the trial Court of Additional Sessions Judge.
13. Aggrieved thereby, the appellants have preferred the instant appeal. That is how, I am seized of the matter.
14. Assailing the impugned judgment of conviction, learned counsel has contended with some amount of vehemence that although, complainant-PW3 Sada Lal, PW4-Tarsem Lal, Sarpanch and PW5-Dattar Singh, Ex-Sarpanch, have not uttered a word against the appellants, as they did not support the prosecution version, but still the trial Court committed a legal mistake, to convict them, only on the basis of vague and irrelevant statements of PW6, PW7 and PW11. The argument is that on the one hand after disbelieving the prosecution evidence with regard to the commission of murder, the trial Court acquitted the appellants and also acquitted accused Des Raj(brother-in-law) and Asha Rani(sister-in- law) under Section 304-B IPC and on the other hand, convicted the appellants for the commission of an offence punishable under Section 304-B IPC on the same set of evidence, which according to him, is illegal and without jurisdiction. The argument further proceeds that there is no evidence on record to prove any harassment or cruelty in connection with and on account of demand of dowry soon before the death of the Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh deceased. Raising a variety of submissions, in all, learned counsel prayed for acquittal of the appellants.
15. Hailing the prosecution evidence, on the contrary, learned State Counsel has urged that the statements of PW6 and PW7 are sufficient to convict the appellants for the pointed offences and no interference is warranted in this respect.
16. At the very outset, the cardinal fundamental principles and basic rules of criminal law/jurisprudence, have to be kept in focus while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against him. The criminal proceedings require strict proof of guilt. It is the legal evidence, on the basis of which, the decision of a criminal court is based and is the legal requirement of criminal justice. Otherwise, in the absence of cogent substantive evidence, the Courts have no option, but to record an order of acquittal howsoever painful the same may be.
17. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the present appeal deserves to be accepted in this context.
18. As indicted here-in-above, the appellants were convicted for the commission of dowry death. Section 304-B IPC enumerates that “Where the death of a woman is caused by any burns or bodily injury or Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh occurs otherwise than 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.”
19. Therefore, a plain and meaningful reading of this provision would reveal that the prosecution is legally required to prove the following essential ingredients before invoking the provision of Section 304-B IPC:-
(i) The death of wife should be caused by burns or bodily injury or otherwise than under normal circumstances;
(ii) Such death should have been occurred within seven years of the marriage;
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband; and
(iv) Such cruelty or harassment should be for or in connection with demand of dowry soon before her death.
(v) Such cruelty and harassment was made soon before her death.
20. Such, thus, being the legal position & evidence on record, now the core controversy, which invites an immediate attention of this Court and arises for determination in this appeal is, as to whether all the essential ingredients of dowry death are complete in the present case or not ?
21. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has miserably failed to prove its case in this relevant connection, which entails the benefit of doubt and the appellants deserve to be acquitted for the reasons mentioned here-in-below. Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh
22. What cannot possibly be disputed here is that, the marriage of appellant-Baldev Raj was solemnized with Darshana Rani, 1½ years prior to the present occurrence. She died an unnatural death on 02.08.1996, indisputably, on account of burn injuries within a period of two years of her marriage. Hence, the initial two pointed premises of offence of dowry death stand established on record. That being so, now it has to be seen as to whether the prosecution has brought on record the sufficient and reliable evidence to prove the 3rd and 4th indicated ingredients i.e. soon before the death of deceased, she was subjected to cruelty in connection with and on account of demand of dowry by the appellants or not ?
23. As is evident from the record that, complainant-PW3 Sada Lal, brother of the deceased, has put the police machinery into motion and made his statement(Ex.P7), which formed the basis of FIR(Ex.P7/B). The case of the prosecution further proceeds that PW3 had narrated the fact of demand of dowry articles by the appellants from his sister Darshana Rani to PW4-Tarsem Lal, Sarpanch and PW5-Dattar Singh, Ex- Sarpanch of the village. The complainant-Sada Lal while appearing as PW3 in the court has stated on oath that he had given the dowry in the marriage of his sister according to their capacity. Her sister was neither maltreated, nor any demand of dowry was made by the appellants. She was under depression. The appellants did not set her on fire and she committed suicide on account of depression.
24. Not only that, PW4-Tarsem Lal, Sarpanch and PW5-Dattar Singh, Ex-Sarpanch, have also maintained on oath that the appellants Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh neither maltreated her, nor raised any demand of dowry. PW4 did not participate in any Panchayat. The deceased was his sister’s daughter and he had gone to meet her. PW5 has further deposed that complainant-Sada Lal or his sister Darshana Rani never made any complaint to him about the demand of additional dowry by the appellants. She never told him in the Panchayat that the accused were demanding additional dowry. That means, PW3 to PW5 were the main/star and material witnesses of the prosecution. They instead of supporting, have demolished the prosecution version in its entirety. They were declared hostile. During the cross- examination by the PP, they have stoutly denied having made any such statements to the police at any time. They were cross-examined at length, but nothing substantial material could be elicited in their searching cross- examination by the PP, to prove that the deceased was maltreated by the appellants in connection with and on account of demand of dowry soon before her death, which are the essential ingredients of dowry death.
25. As is apparent that the main ground which appears to have been weighed with the trial Judge, to convict the appellants, were the statements of PW6, PW7 and PW11. Here to me, the trial Judge slipped into a deep legal error, to convict the appellants on such vague type of legally unacceptable evidence, as regards, the essential ingredients of dowry death are concerned. The crux of statements of PW6 and PW7 is that about 20-21 days prior to the present occurrence, they had gone to the matrimonial home of Darshana Rani in village Goluke, to inquire about the welfare of Baldev Raj. As soon as,Darshana Rani tried to prepare sweet water for them, in the meantime, her sister-in-law snatched Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh the sugar-pot and gave a slap on her face. They felt annoyed and went to the shop and narrated the entire episode to appellant-Mulkh Raj. Although, he promised to look into the matter, but he did not take any action against her. They have also narrated the incident to Ashok Kumar. He promised to talk to the accused in this regard, but in vain. PW6 has very vaguely stated that earlier Darshana Rani had visited their house and she had complained about the maltreatment by the accused. Likewise, the evidence of PW11 Mohan Lal is to the effect that the appellants used to maltreat Darshana Rani on account of demand of scooter and dowry. He took the guarantee to give them scooter later on. On 02.08.1996, on receipt of information, he went to her matrimonial home, where she was lying dead in burnt condition. No other evidence is available on record in this relevant connection.
26 Assuming for the sake of arguments, if the indicated evidence of PW6 and PW7, relatable to one minor incident of slapping and very very vague and unfounded general allegations of demand of dowry, as levelled by PW11, are believed to be true as such, to my mind, even then no offence of dowry death is made out. That means, how, when, by whom and in what manner, the appellants have harassed and treated the deceased with cruelty in connection with and on account of demand of dowry, remains an unfolded mistery. The mere stray incident of alleged slapping by sister-in-law(acquitted accused) to the deceased, ipso facto is not a ground, much less cogent, to convict the appellants for dowry death. These are the casual unintentional wears and tears of family affairs, prevalent in our society. Every such so-called harassment Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh simpliciter does not amount to cruelty. There is not an iota of cogent evidence on record, even to suggest remotely that the deceased was harassed, in any manner, or treated with cruelty by the appellants in connection with and on account of specific demand of dowry soon before her death.
27. Meaning thereby, in order to attract the penal provision of Section 304-B IPC, there should be a perceptible nexus between her death and the dowry related harassment or cruelty soon before her death, which is miserably missing in this case. Preceding on these premises, the presumption arising under section 113-B of the Indian Evidence Act, 1872, could not legally be invoked against the appellants in the absence of specific evidence of harassment and cruelty for demand of dowry soon before her death and in the absence of pointed essential ingredients of section 304-B IPC, which are totally lacking in the instant case. This matter is no more res integra and is now well-settled.
28. An identical question came to be decided by the Hon’ble Apex Court in case Appasaheb and another v. State of Maharashtra 2007 (1) RCR (Criminal) 747, wherein having interpreted the essential ingredients of Section 304-B IPC, it was ruled as under (para 9) :-
“Two essential ingredients of Section 304-B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for “dowry”. The explanation appended to sub- section (1) of Section 304-B IPC says that “dowry” shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.
Section 2 of Dowry Prohibition Act reads as under :-
“2. Definition of “dowry” – In this Act “dowry” means any property or Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh 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 parent 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.”
In view of the aforesaid definition of the word “dowry” any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statutes that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India v. Garware Nylons Ltd., AIR 1996 S.C. 3509 and Chemicals and Fibres of India v. Union of India, AIR 1997 S.C. 558). A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for “dowry” as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304-B IPC viz. demand for dowry is not established, the conviction of the appellants cannot be sustained.”
29. Therefore, the contrary arguments of the learned State Counsel, “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances, as the ratio of law laid down in the aforesaid judgment “mutatis mutandis” is applicable to the facts of the present case and is the complete answer to the problem in hand. Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh
30. Thus, to my mind, vague and irrelevant, unacceptable evidence of PW6, PW7 and PW11, is not at all sufficient, to convict the appellants for dowry death, in the absence of cogent evidence of harassment and cruelty in connection with and on account of demand of dowry soon before her death, particularly when as indicated here-in- above, the material witnesses PW3, PW4 and PW5 did not support and have demolished the prosecution version in its totality. To that extent, the trial Court appears to have gone legally wrong in this relevant context. Therefore, the evidence brought on record by the prosecution falls short, as is required to prove a criminal case of dowry death and the impugned judgment of conviction and order of sentence cannot legally be maintained in the obtaining circumstances of the case.
31. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
32. In the light of aforesaid reasons, the instant appeal is accepted. Consequently, the impugned judgment of conviction & order of sentence are hereby set aside. Having extended the benefit of doubt, the appellants are acquitted of the offence punishable under Section 304-B IPC.
Needless to mention that the necessary compliance and procedural consequences would naturally follow.
September 19, 2013 (MEHINDER SINGH SULLAR) seema JUDGE Whether to be referred to reporter? Yes/No Rani Seema S 2013.09.25 12:50 I attest to the accuracy and integrity of this document High Court Chandigarh