CRA No.527-SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.527-SB of 2003 Date of Decision:-25.9.2013 Mam Raj & Smt.Anguri Devi ...Appellants Versus The State of Haryana ...Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Rahul Vats, Advocate for the appellants. Mr.Gourav Verma, AAG Haryana for the 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-convict Mam Raj son of Maru Singh (for brevity “the appellant”) was solemnized with Smt.Santosh, sister of complainant Dinesh Singh son of Phool Singh (PW1) (for short “the complainant”) on 20.5.1997, according to Hindu rites & ceremonies. The sufficient dowry articles and cash were stated to have been given by her parents as per their status and capacity at the time of marriage, but the accused were not satisfied with the same. After some time of the marriage, she had gone to her parents house at village Jatoli and narrated that Mam Raj, her husband, Maru Singh & Anguri Devi (parents-in-law) and Kuldeep Singh, brother-in-law (Devar) had been harassing and beating her for bringing insufficient dowry articles. An Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh amount of ` 10,000/- was paid in cash to the accused by her parents to settle Santosh at her matrimonial home, but in vain. On 25.6.1999, Abdesh Kumar (PW2), another brother of the deceased, had gone to her matrimonial home, where the accused asked him to pay a sum of ` 20,000/- as they had purchased a new tractor. Thereafter, he brought Santosh to her parental house. She narrated her entire tale of woe and stated that the accused would not allow her to settle in her matrimonial home, unless they were paid a sum of ` 20,000/-. It was averred that on 30.6.1999, the husband of the deceased, came to village Jatoli, took her to her matrimonial home and renewed the indicated demand of money. However, they promised to pay the amount at a later stage.
2. The case of the prosecution further proceeds that on 7.7.1999, Harpal Singh, husband of another sister of the complainant, came to village Jatoli from village Tigrana and told that Santosh was lying admitted in serious condition in General Hospital, Bhiwani. On receiving the information, the complainant and his cousin brothers Jagdish and Yashbir reached the hospital. On reaching there at about 10 P.M., Santosh was found dead on account of burn injuries. The matter was reported to the police by the complainant alleging therein that the accused have set her on fire on account of bringing insufficient dowry and cash.
3. Leveling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that the death of his sister Santosh was caused by burn injuries and occurred otherwise than under normal circumstances within a period of three years of her marriage. She Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh was subjected to cruelty and harassment by her husband and other pointed relatives in connection with and on account of demand of dowry. Thus, they have committed the offence of dowry death. In the background of these allegations and in the wake of statement (Ex.PA) of complainant, the present criminal case was registered against appellant Mam Raj (husband), his parents Maru Singh and Anguri Devi (parents- in-law) and Kuldeep Singh, brother-in-law (Devar) of the deceased, by means of FIR No.231 dated 8.7.1999 (Ex.PA/2), on accusation of having committed the offences punishable under sections 304-B & 498-A read with section 34 IPC by the police of Police Station Sadar Bhiwani, in the manner depicted here-in-above.
4. After completion of the investigation, the final police report (challan) was submitted by the police against them to face the trial for the offences in question.
5. Having completed all the codal formalities, the appellants and acquitted accused were charge-sheeted for the commission of offences punishable under sections 304-B and 498-A IPC. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Court.
6. Sequelly, the prosecution, in order to substantiate the charges framed against the appellants and acquitted accused, examined PW1 complainant Dinesh Singh, who has deposed in the following terms:-
“Stated that we are three brothers and four sisters. Santosh since deceased was my elder sister, who was married to accused Mam Raj, on 20th May, 1997 at village Kilanga. Mam Raj accused is husband, Kuldeep is younger brother of Mam Raj, while Maru Singh and Smt.Angoori Devi accused are parents in law of my sister. We spent in the marriage of my sister according Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh to our financial status. The accused present in the court, were not happy with the dowry given by us in the marriage of my sister. They used to harass my sister for bringing more dowry. Whenever my sister Santosh used to visit our village, she used to tell us that all the four accused used to beat her for bringing money from us. After 5/6 months of the marriage of my sister, we paid Rs.10,000/- and made the accused to understand and not harass my sister. On 25.6.1999, my brother Parvesh who is younger to me went to village Kalinga to take my sister Santosh to our house. At that time all the four accused told to my brother that they had to purchase a new tractor, therefore, they are in need of Rs.20,000/- upon which my brother told the accused that he will tell his brother and father about Rs.20,000/- (Objected to). My brother took Santosh to our village. My brother and my sister Santosh on reaching our village told to us that the accused have asked for Rs.20,000/- otherwise they will not allow her in their house and you should remain at your family’s house. On 30.6.1999, Mam Raj accused came to our house for taking my sister Santosh with him. At that time, accused Mam Raj asked us to pay Rs.20,000/-. On which, we showed our inability to pay Rs.20,000/- at that time, and assured him that the money will be paid as soon as possible. On 2.7.1999, accused Mam Raj took my sister Santosh to his house. At the time of departure, my sister Santosh told us that we should send Rs.20,000/- as early as possible otherwise the accused will kill her.
On 7.7.1999, Harpal Singh, husband of my another sister, came to our village from village Tigrana and told that my sister Santosh was admitted in General Hospital, Bhiwani and we should reach there immediately. On this information, I, Jagdish son of Karan Singh and Yashbir son of Rajpal came to G.H.Bhiwani, at about 10.00 p.m. There we found Santosh lying dead due to burn injuries. As we failed to pay the money, therefore, my sister was done to death as suspected by me. I gave statement Ex.PA to the police, which bears my signatures at point A. I also handed over the marriage card to the police. The police took into possession the marriage card which is Mark-A vide recovery memo Ex.PB. The memo bears my signatures.”
7. Likewise, PW2 Abdesh Kumar, another brother of the complainant & deceased, has corroborated the prosecution version. Instead of reproducing the entire statement and in order to avoid the repetition, suffice it to say that PW2 has also supported the statement of complainant on all vital counts as regards the demand of dowry and cash Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh is concerned.
8. Now adverting to the medical evidence, PW6 Dr.Jagtar Singh has initially medico legally examined Santosh on 7.7.1999, vide MLR (Ex.PH). He sent the writings (ruqqas) (Ex.PH/1 and Ex.PH/2) to the concerned police post. On 8.7.1999, PW5 Dr.Ved Kumar and PW6, on police request (Ex.PF/1) accompanied by inquest report (Ex.PG), had conducted the post mortem examination on the dead body of Santosh, by way of post mortem report (Ex.PF) and found superficial to deep burns all over the body except both feet. Smell of kerosene was coming out from burnt clothes and body. Rigor mortis was present on all the four limbs. According to him, the cause of death was the result of shock on account of ante mortem extensive burn injuries, which were sufficient to cause death in the ordinary course of nature.
9. Similarly, PW3 SHO Subhash Chander is a formal witness, who has prepared the final police report (challan) after completion of the investigation of this case. PW4 C.Virshakti Singh has prepared the scaled site plan (Ex.PE) of the place of occurrence at the instance of ASI Chhotu Ram with its correct marginal notes.
10. The last to note is the testimony of PW7 ASI Chhotu Ram, the main Investigating Officer, who has stated that on 7.7.1999, on receipt of writings (ruqqas) (Ex.PH/1 & Ex.PH/2), he went to the General Hospital, Bhiwani and prepared the inquest report (Ex.PG). On 8.7.1999, the complainant met him in the hospital and made his statement (Ex.PA). He signed the same in token of its correctness. He (PW7) made his endorsement (Ex.PA/1) and sent it to the police station for registration of Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh the case, on the basis of which, the formal FIR (Ex.PA/2) was recorded by ASI Dharam Singh. He identified his signatures. He recorded the statements of witnesses and prepared the rough site plan (Ex.P1) of the spot with its correct marginal notes. He took into possession the container (Pippi) and match box, by virtue of recovery memo (Ex.PC) from the place of occurrence. On 9.7.1999, he arrested accused Kuldeep and Maru. He has also taken into possession the clothes and ornaments of the deceased, vide recovery memo (Ex.PJ). On 11.7.1999, he arrested accused Anguri and got recovered the dowry articles from the possession of the accused. On 18.8.1999, he has also taken into possession the marriage card of Santosh, by way of recovery memo (Ex.PB) in the presence of PW1 Dinesh. On 16.7.1999, he has also arrested accused Mam Raj. He has further testified his entire investigation.
11. During the pendency of the trial, since accused Maru Singh (father-in-law) had died on 5.1.2002, so, the proceedings were dropped against him by the trial Court. However, after the close of the prosecution evidence, the statements of the appellants and acquitted 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. However, appellant Mam Raj has denied the prosecution evidence in its entirety and pleaded false implication in the following manner:-
“My wife has sustained burn injuries accidentally and I also received burn injuries while extinguishing the fire upon my wife Santosh. I also informed to the complainant. But due to black mailing, complainant Dinesh got registered this false case against me and my family members. I and my wife were brought to the hospital and I remained admitted in the hospital for 6 days as indoor Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh patient. I and my wife were brought to the hospital through Mukesh. I am innocent.”
12. In the same sequence, the other accused have also adopted the same line of defence. They, in order to prove their defence, have examined DW1 Lakhpat Singh Sarpanch, who issued certificate (Ex.DC) and death report (Ex.DD) and stated that on the fateful day, accused Anguri Devi was present in village Daulah as she had gone to attend the last rites (Tehrwi) of Smt.Kela Devi. According to DW2 Mohinder Singh son of Ram Sarup Singh, he knew accused Mam Raj and Maru. Maru is having only one acre of land. The accused were not having any tractor at any point of time. They are otherwise poor persons. He issued a writing (Ex.DE) in the capacity of Sarpanch. DW3 Mam Raj son of Sagar Singh has stated that accused Mam Raj is his brother-in-law. The accused were not having any tractor on 25.6.1999. He has brought the original RC, copy of which is Ex.DF.
13. DW4 Mukesh son of Ram Kumar has deposed that he knew Mam Raj accused. He had brought his wife from village Kelenga to Civil Hospital, Bhiwani. At that time, accused Mam Raj was also present and he was having burn injuries. Santosh told him enroute that she was cooking food and got burn injuries accidentally. DW5 Rajpal son of Jangi Singh has maintained that Mam Raj accused is his neighbour. Three years ago, his wife while working in kitchen caught fire and while saving her, accused Mam Raj also sustained injuries. At that time, except these two persons, no other member was present. Anguri accused was at village Dola. He along with Mukesh brought Mam Raj and his wife to General Hospital, Bhiwani. On the way, she disclosed that she caught fire Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh accidentally while she was working in kitchen. This is the total oral as well as documentary evidence brought on record by the parties.
14. Taking into consideration the entire evidence on record, accused Kuldeep Singh, brother-in-law (Devar) of the deceased was acquitted u/ss 498-A and 304-B read with section 34 IPC. The State of Haryana did not file any appeal to challenge his acquittal. At the same time, appellant Mam Raj (husband) and Anguri Devi (mother-in-law) were convicted and sentenced to undergo rigorous imprisonment (in short “the RI”) for a period of eight years each for the commission of an offence punishable u/s 304-B read with section 34 IPC. They were also convicted and sentenced to undergo RI for a period of two years, to pay a fine of ` 5000/- each or in default thereof, to further undergo RI for a period of six months each u/s 498-A read with section 34 IPC. However, all the substantive sentences were ordered to run concurrently, by virtue of impugned judgment of conviction dated 17.2.2003 and order of sentence dated 21.2.2003 by the trial Court of Additional Sessions Judge.
15. Aggrieved thereby, the appellants have preferred the instant appeal. That is how I am seized of the matter.
16. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the present appeal deserves to be partly accepted in this context.
17. As indicated here-in-above, the appellants were convicted under section 304-B IPC, which postulates that “Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh 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.” Similar is the provision of offence punishable u/s 498- A IPC as well.
18. Therefore, a conjoint and meaningful reading of these provisions would reveal that the prosecution is legally required to prove the following essential ingredients before invoking the provisions ofsection 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;
(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.
19. Such thus being the legal position & evidence on record, now the sole 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 the offence punishable u/s 304-B IPC are complete or in any case, what offence was committed by the appellants ?
20. Having regard to the rival contentions of learned counsel for the parties, to me, the prosecution has utterly failed to prove all the essential ingredients of the pointed offences against the appellants. Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document ChandigarhHowever, at the same time, it stands proved on record that appellant Mam Raj (husband) had abetted and driven the deceased to commit suicide and he is liable to be convicted & sentenced for the commission of an offence punishable u/s 306 IPC, for the reasons mentioned here-in-below.
21. It is not a matter of dispute that the marriage of appellant Mam Raj was solemnized with Santosh on 20.5.1997 according to Hindu rites and ceremonies. Indisputably, she died an unnatural death on account of burn injuries within a period of three years of her marriage. The sufficient dowry articles were stated to have been given at the time of marriage by her parents. The prosecution claimed that after solemnization of the marriage, the appellants and acquitted accused started demanding the cash from her parents and they had paid ` 10,000/- to settle her in her matrimonial home. They again demanded ` 20,000/- as they had to purchase a new tractor. These very allegations of demand of cash by Kuldeep Singh, brother-in-law of the deceased, were disbelieved and he was acquitted by the trial Court.
22. The conspectus of the evidence of PW1 and PW2 is that the appellants had repeatedly demanded ` 20,000/- from the deceased as they had to purchase a new tractor. Assuming for the sake of argument that appellants had demanded the money for purchase of a tractor, even then, to my mind, it will not attract the penal provisions of Section 304-B IPC. Concededly, there is not an iota of evidence on record, muchless cogent, even to suggest remotely that the deceased was subjected to any legally required cruelty or harassment soon before her death by the appellants on account of demand of dowry. That means, there should be a perceptible Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh nexus between her death and the dowry related harassment or cruelty soon before her death. Preceding on these premises, the presumption arising under section 113-B of the Indian Evidence Act, 1872 (hereinafter to be referred as “the Act”) could not legally be invoked against the appellants in the absence of specific evidence of legally required harassment and cruelty for demand of dowry soon before her death and in the absence of indicated 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.
23. An identical question came to be determined by the Hon’ble Apex Court in case Appasaheb and another v. State of Maharashtra 2007 (1) RCR (Criminal) 747, wherein, having interpreted the provisions of dowry death prescribed under 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 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 Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh 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.”
24. Therefore, to me, the mere demand of ` 20,000/- by appellants to purchase a new tractor, ipso facto, is not sufficient to convict them for dowry death. 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. In that eventuality, both the appellants deserve to be and are hereby acquitted, for having committed the crime of dowry death punishable u/ss 304-B & 498-A IPC.
25. Be that as it may, the perusal of the evidence on record would reveal that appellant Mam Raj (husband) was residing in the same room with the deceased. He has admitted that she set herself on fire in order to commit suicide. In the process of extinguishing the fire, he also Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh sustained burn injuries on his hands. Under these circumstances, it was his duty to explain the reasons as to how, why, in what manner she died and what prompted her to commit suicide. He has utterly failed to do so in this regard. On the contrary, there is an acceptable evidence of PW1 and PW2 that the appellant-husband used to demand the cash. Initially, an amount of ` 10,000/- was paid to him. Still, the demand of ` 20,000/- was made by him to purchase a new tractor. They have categorically maintained that on 30.6.1999, appellant Mam Raj came to their house for taking her sister Santosh with him. At that time also, he asked them to pay ` 20,000/-. They showed their inability and promised him to pay the amount at a later stage. The pointed demand of money was related to him only as Anguri Devi (mother-in-law) was not going to be benefitted in any manner in this respect. Although there is a positive evidence and even otherwise, such like demand can originate from the mouth of husband only, who individually might be interested in enhancing his status by purchasing a new tractor. This demand could not be met and he started harassing and maltreating his wife Santosh on account of demand of ` 20,000/-. She was fed up with the demand of cash by her husband. This demand had driven her to commit suicide by burn injuries in his presence. In the process of extinguishing the fire, he also sustained burn injuries on his hands. Thus, his presence at the spot is duly established on record.
26. Thus, it would be seen that the peculiar facts and special circumstances, oozing out from the evidence on record would naturally suggest that the deceased was fed up with the conduct and demand of Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh cash by the appellant-husband and she committed suicide by burn injuries in his presence. She had been subjected to cruelty within the meaning of section 498-A IPC and presumption in terms of section 113-A of the Act is fully applicable to the facts of the instant case. Therefore, appellant Mam Raj is guilty for the commission of an offence punishable u/s 306 IPC. Although, he was charged u/ss 304-B and 498-A IPC and was not charge-sheeted u/s 306 IPC, but still, he can legally be convicted for lesser offence punishable u/s 306 IPC, in view of the law laid down by Hon’ble Supreme Court in case K.Prema S.Rao and another v. Yadla Srinivasa Rao and others (2003) 1 SCC 217. Sequelly, the same view was again reiterated by this Court in case Jit Singh v. State of Punjab CRA No.406-SB of 2003, decided on 5.9.2013.
27. Therefore, if the compendium of the totality of the facts & evidence, emitting from the evidence on record, as discussed here-in- above, is put together, then, to my mind, the conclusion is inescapable and irresistible that the appellant-husband had harassed and treated Santosh (deceased) with cruelty, within the meaning of section 498-A IPC, demanded ` 20,000/- and his conduct had driven her to commit suicide. Meaning thereby, he had abetted the commission of the crime of suicide. Hence, he is liable to be and is hereby convicted & sentenced for the commission of an offence punishable u/s 306 IPC in the obtaining circumstances of the case.
28. Now adverting to the question of sentence, as per custody certificate, appellant Mam Raj (who was earlier convicted & sentenced u/ss 304-B and 498-A (now u/s 306 IPC) has already undergone the Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh considerable period of 3 years, 8 months and 8 days. He has already faced the pangs and suffered the agony of protracted trial and appeal for the last more than 14 years. He was a young person at the relevant time of commission of offence. His father has expired. His mother is an old aged woman and generally remains ill. There is no history of his previous involvement in any other criminal case. The learned State counsel has acknowledged this factual matrix. In this view of the matter, to me, it would be expedient in the interest and justice would be sub-served if the appellant-husband is sentenced to the period already undergone by him u/s 306 IPC.
29. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
30. In the light of aforesaid reasons, the instant appeal is partly accepted. Both the appellants are acquitted of the charges u/ss 304-B & 498-A IPC. At the same time, appellant Mam Raj is held guilty and convicted for the commission of indicated crime prescribed and punishable u/s 306 IPC. Consequently, he is sentenced to the period already undergone by him. Therefore, the impugned judgment of conviction and order of sentence are hereby modified to the extent and in the manner depicted here-in-above.
Needless to mention that the necessary compliance and procedural consequences would naturally follow.
25.9.2013 (Mehinder Singh Sullar) AS Judge Whether to be referred to reporter? Yes/No Arvind Kumar Sharma 2013.10.01 13:50 I attest to the accuracy and integrity of this document Chandigarh