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2002 DIGILAW 1122 (PNJ)

Om Parkash v. State Of Haryana

2002-10-23

K.C.GUPTA

body2002
Judgment K.C.Gupta, J. 1. This Criminal Appeal is directed by the accused against the judgment and order dated 7.6.1988 passed by the Additional Sessions Judge, Hisar, whereby he found the appellants guilty and convicted them under Sections 498-A, 304-B and 201 read with Section 34 IPC and sentenced each of them to 10 years R.I. under Section 304-B IPC, two years RI under Section 498-A IPC and one year RI under Section 201/34 IPC. However, all the sentences were ordered to run concurrently. 2. Briefly stated, the facts are that Smt. Surti was daughter of PW-6 Keshar Chand. She was married with Om Parkash, appellant on 12.6.1982. He had spent about Rs. 9000/- to Rs. 10,000/- on her marriage. However, the appellants were not satisfied with the dowry given and expressed their annoyance at the time of marriage. 3. Muklava ceremony was performed after one year of the marriage. She was sent to her matrimonial house in Village Kirori along with Om Parkash, appellant. As it was customary, so, clothes, utensils etc. were given to her. Ram Chander and Gaje Singh, appellants, are brothers of Om Parkash, appellant, while Smt. Sheo Bai is their mother. It was alleged that all the appellants harassed and tortured Smt. Surti Devi for not bringing dowry to their satisfaction either at the time of marriage or Muklava ceremony and her father had not given any ornament. 4. PW-6 Keshar Chand visited village Kirori to see his daughter and then Smt. Surti complained to him about the torture and harassment at the hands of the appellants. Keshar Chand asked them to see reason and expressed his helpless to give more dowry because of his poor financial position. 5. In the year 1985, Smt. Surti gave birth to a daughter at matrimonial home. Keshar Chand could not take her to his house for delivery due to his poor financial condition. 6. After 2-3 months, Keshar Chand brought Smt. Surti to her parental house. However, none came to take her, although she lived for 6-7 months. Thereafter, Keshar Chand, PW-6 and Vijay Kumar, PW-3, went to village Kirori to persuade Om Parkash to bring Smt. Surti. 6. After 2-3 months, Keshar Chand brought Smt. Surti to her parental house. However, none came to take her, although she lived for 6-7 months. Thereafter, Keshar Chand, PW-6 and Vijay Kumar, PW-3, went to village Kirori to persuade Om Parkash to bring Smt. Surti. However, all the appellants told them that since no dowry had been given and Smt. Surti should bring a gold coin, a gold Tabij for the infant female child besides fan, watch and sewing machine and then only she would be brought to the matrimonial home. Keshar Chand and Vijay Kumar told them that they were not in a position to give these articles and returned to Sirsa. 7. In December 1986, Keshar Chand, Ramu, Jag Raj and Vijay Kumar, PWs, again visited Village Kirori and contacted the appellants. They assured the appellants that Surti should be brought to the matrimonial home and they would give whatever ornaments they possibly could give. 8. In December 1987, Om Parkash visited Sirsa and brought Surti along with her daughter to the matrimonial home. At that time, Keshar Chand gave one gold Tabij for Surti, silver Karra for infant female child and Rs. 500/- as Shagun besides 5 Kgs. of Ghee and other customary clothes. 9. Thereafter, the marriage of Tej Chand, brother of Om Parkash, appellant took place. Keshar Chand went there in that marriage and met his daughter Surti Devi who complained him that the appellants were still harassing her and forcing her to bring more dowry and had even started beating her. Keshar Chand persuaded the appellants not to misbehave with his daughter and assured them that he would supply all the articles of dowry by and by and then he left for Sirsa. 10. On 16.7.1987, Gaje Singh, appellant visited Sirsa and told Keshar Chand, PW-6, that Surti Devi was unwell and wanted to see him. Consequently, Keshar Chand accompanied Gaje Singh went to Village Kirori and found that Surti had committed suicide by falling in a well. Keshar Chand enquired from the appellants about the cause of her death but they did not tell anything. He became perplexed. The appellants cremated the dead body of Surti. 11. After sometime, Keshar Chand-PW6 returned to Sirsa and consulted his friends and relations. He along with some villagers went to Village Kirori on 18.7.1987 and enquired about cause of death of Smt. Surti. He became perplexed. The appellants cremated the dead body of Surti. 11. After sometime, Keshar Chand-PW6 returned to Sirsa and consulted his friends and relations. He along with some villagers went to Village Kirori on 18.7.1987 and enquired about cause of death of Smt. Surti. He was satisfied that Surti had been driven to commit suicide by the appellants because of demand of dowry. He also convened a Panchayat and ultimately lodged a report in the Police Station on 22.7.1987. 12. Sub Inspector Kanhiya Lal investigated the case. He went to the spot and prepared rough site plan regarding a well and the place where death of Smt. Surti had taken place and also that of cremation ground where the dead body of Surti was cremated. He, vide recovery Memo Ex. PD, took into possession the pieces of bones and ash from the place where the dead body of Surti was cremated and made it into a sealed parcel. 13. After the completion of the investigation, the challan was put up in the Court of Judicial Magistrate Ist Class, Hisar, who in turn vide his order dated 18.9.1987 committed the case to the Court of Sessions. 14. Having made out a prima-facie case, the appellants were charged under Sections 498-A, 304B and 201/34 IPC on 9.10.1987, to which they pleaded not guilty and claimed trial. 15. In order to prove the allegations, the prosecution examined nine witnesses. 16. After the closure of the prosecution evidence, statements of the appellants were recorded under Section 313 Cr.P.C. wherein they denied the allegations of the prosecution and pleaded false implication. They next stated that Om Parkash, appellant, was married with Smt. Surti, deceased, on 12.6.1980 and not on 12.6.1982. They further stated that it was a case of simple marriage and no dowry was involved. They also stated that Smt. Surti had gone to the village well to bring water but her foot slipped and she fell in the well and died. She was taken out from the well by the Panchayat. They further stated that father of Smt. Surti, namely, Keshar Chand, was informed and he refused to get dead body subjected to post mortem examination and with his consent the dead body of Smt. Surti was cremated. In defence, they produced Neonda Bahi, Ex. D1. 17. She was taken out from the well by the Panchayat. They further stated that father of Smt. Surti, namely, Keshar Chand, was informed and he refused to get dead body subjected to post mortem examination and with his consent the dead body of Smt. Surti was cremated. In defence, they produced Neonda Bahi, Ex. D1. 17. After hearing the learned PP for the State and the defence counsel, the learned Additional Sessions Judge found them guilty and convicted them under Sections 498-A, 304B and 201 read with Section 34 IPC and sentenced them as stated above vide judgment and order dated 7.6.1988. 18. Aggrieved by the said judgment and order, the accused have filed the present appeal. 19. I have heard Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate for the appellants, Mr. Rajnish Dhanda, A.A.G., for the respondent and carefully gone through the record. 20. Counsel for the appellants, at the very outset, contended that Ram Chander son of Munshi had died on 21.2.1992 and his death was registered on 27.2.1992. He has produced copy of the death certificate which proves this fact and as such, proceedings against Ram Chander are dropped. 21. It is an admitted fact that Om Parkash, appellant, was married with Smt. Surti (now deceased) daughter of PW-6 Keshar Chand. Now the first question to be seen is as to when the marriage had taken place. According to the prosecution, the said marriage had taken place on 12.6.1982 while according to the appellants it had taken place on 12.6.1980. It was admitted by PW-8 Kanhiya Lal, Sub Inspector, who was Investigating Officer of this case, in his cross-examination that the invitation card printed at the time of marriage was produced before him but he did not take the same into possession. He further stated that no other documentary evidence was produced before him to show the date of marriage of Surti. The very fact that invitation card printed at the time of marriage was produced before him and he did not take the same into possession only suggests that it contained the date to be 12.6.1980 and for this reason, he had not taken into possession the same. Otherwise, there is no reason as to why the printed invitation card was not taken into possession evidencing the date of marriage, especially when no other documentary evidence was available. Otherwise, there is no reason as to why the printed invitation card was not taken into possession evidencing the date of marriage, especially when no other documentary evidence was available. PW-8 Kanhiya Lal took a somersault during his cross- examination and stated that during investigation, it had come into his notice that Surti was married about one and a half years/two years before her death. Admittedly, the death had taken place on 16.7.1987. Thus, according to him Smt. Surti was married in July 1985 or January, 1985. It is not the case of anybody that Smt. Surti was married in the year 1985. 22. PW-6 Keshar Chand had admitted in his cross-examination that his friends and relatives had given Kanyadan at the time of marriage of Surti, which was written in a copy but stated that the said copy is not available. However, PW-7 Jagraj, in his cross-examination, stated that Keshar Chand had written the Kanyadan in the Bahi at the time of marriage of Surti. Again, there was documentary evidence but the same has not been produced to show that Smt. Surti was married with Om Parkash on 12.6.1982. Of course, PW-3 Vijay Kumar had stated that the marriage of Smt. Surti was solemnized with Om Parkash of Village Kirori on 12.6.1982. PW-3 Vijay Kumar had no relationship with Keshar Chand, PW-6 but Keshar Chand was only working in his press and he considered Keshar Chand as his Guru but it is difficult to believe that he had remembered orally the date of marriage of Surti with Om Parkash. In cross-examination, he stated that at the time of marriage of Surti with Om Parkash, he was present and had given Rs. 51/- as Shagun, which was recorded in the Bahi. He further stated that there were many persons giving such Shaguns to the bride. However, that Bahi has not been produced and has been intentionally with-held. On the other hand, Neonda Bahi, Ex. D1, kept by the appellants suggests that the marriage had taken place on 12.6.1980 while she committed suicide on 16.7.1987. Thus, she died after the expiry of more than seven years of her marriage with Om Parkash and as such, presumption under Sections 113-A and 113-B of the Evidence Act is not available to fasten criminal liability on the appellants. 23. Thus, she died after the expiry of more than seven years of her marriage with Om Parkash and as such, presumption under Sections 113-A and 113-B of the Evidence Act is not available to fasten criminal liability on the appellants. 23. Admittedly, Maklava ceremony had taken place one year after the performance of the marriage, which had taken place on 12.6.1980. It was stated by Keshar Chand that he had given customary clothes and utensils and sent Smt. Surti Devi to her matrimonial home but the appellants were not satisfied with the dowry given and started torturing her for bringing insufficient dowry at the time of marriage or at the time of Maklava ceremony and also that she had not brought any ornament. Keshar Chand visited Village Kirori and met Smt. Surti and she complained to him about the torture at the hands of the appellants. Then, he told the appellants to see to reason and also told that he was unable to give any dowry because of his poor financial position. It is further in evidence that in 1985, Smt. Surti gave birth to a female child in her matrimonial home and not at her parental home. It was customary to deliver first child at her parental home. The very fact that she gave birth to a child at the matrimonial home and at the parental home suggests that relations were not strained and it is difficult to believe that she was harassed on account of demand of dowry. 24. It is next alleged that after 2-3 months, Smt. Surti was brought to the parental house where she lived for 6-7 months and Om Parkash did not turn up to take her and then Keshar Chand, PW-6 and Vijay Kumar, PW-3 visited Village Kirori and enquired from Om Parkash as to why he had not brought Surti and then he complained that sufficient dowry had not been given and he would bring Surti only if a gold coin for Surti, gold Tabij for the infant female child besides a fan, a watch, sewing machine were given but they expressed their helplessness to give the said articles and returned to Sirsa. 25. 25. It is further alleged that in December 1986, Keshar Chand, Ramu, Jag Raj and Vijay Kumar went to village Kirori and contacted the appellants and told them that they should bring Surti and they would give whatever ornaments they could possibly give and then in January 1987, Om Parkash visited Sirsa and Smt. Surti along with her daughter were sent with him. At that time, Keshar Chand gave one golden Tabij for Surti, silver Karra for infant female child and Rs. 500/- in cash as Shagun besides 5 Kgs. of Ghee and customary clothes. 26. It is also alleged that at the time of marriage of Tek Chand, brother of Om Parkash, appellant, Keshar Chand went to Village Kirori and met Surti. She still complained about the harassment at the hands of the appellants on account of demand of dowry and she even alleged that they had then started beating her. 27. PW-2 Piare Lal has not supported the prosecution version. On the other hand, he stated that he was smoking Hukka at the distance of 5-7 paces from the well and Smt. Surti had gone there to draw water with the help of rope and in that process her foot slipped and she fell into the well. He next stated that Surti raised Raula and he immediately went there. In the meantime, Chhotu and Binala, who were smoking Hukka in front of their houses, had also come there. Thus, according to PW-2 Piare Lal, it was not a case of suicide by Smt. Surti but she had an accidental fall in the well and died. 28. PW-3 Vijay Kumar has supported the allegations of the prosecution as stated by PW-6 Keshar Chand. However, he stated that Surti had delivered the child at Sirsa, meaning thereby, at her parental house. He further stated that Smt. Surti at that time lived at her parental home for more than six months but none came to take her. This is certainly wrong because it is an admitted fact that Smt. Surti had given birth to a female child at her matrimonial home and not at her parental home at Sirsa. This suggests that PW-3 Vijay Kumar is a procured witnesses. This is certainly wrong because it is an admitted fact that Smt. Surti had given birth to a female child at her matrimonial home and not at her parental home at Sirsa. This suggests that PW-3 Vijay Kumar is a procured witnesses. PW-3, in cross-examination, stated that he had gone to village Kirori along with Keshar Chand and others 6-7 months after the birth of the child and told the appellants that they would give whatever was possible and thereupon the appellants assured them that they would bring Surti. He was confronted with his statement, Ex. DA, recorded under Section 161 Cr.P.C. where it was not so recorded. He further stated to the police that Om Parkash, appellant, had come to Sirsa a month thereafter to take Surti. He was confronted with his police statement, Ex. DA, where it was not so recorded. He had next stated to the police that Keshar Chand had visited him on the night of 16.7.1987 and told that Surti Devi had either been murdered or that she had committed suicide. He was confronted with his police statement, Ex. DA, where it was not so recorded. He next stated that they had gone to the Village Kirori on 18.7.1987 and were not satisfied with the explanation given by the appellants. He was confronted with his police statement, Ex. DA, where it was not so mentioned that they were not satisfied with the explanation given by the appellants. He next stated that he was not present when Tabij etc. were given by Keshar Chand in Sirsa to Om Parkash, appellant. Therefore, PW-3 had made substantial improvements in his statement recorded in the Court and as such, his statement cannot be believed. PW-6 Keshar Chand, in his cross-examination, stated that he had told that from the very first day of marriage, the appellants were unhappy with the dowry given to Smt. Surti. He was confronted with his police statement, Ex. PF, where it was not so recorded. He further stated that he had told the police that after one month after the Maklava ceremony, he had visited village Kirori to see his daughter. He was confronted with his police statement, Ex. PF, where it was not so recorded. He also stated that he had told the police that her in-laws told him that neither dowry, nor good clothes had been given. He was confronted with his police statement, Ex. PF, where it was not so recorded. He also stated that he had told the police that her in-laws told him that neither dowry, nor good clothes had been given. He was confronted with his police statement, Ex. PF, where it was not so recorded. He further stated that he had told the police that in-laws of Surti Devi had stated that they would bring Surti if radio, cycle, two tolas of gold were given. He was confronted with his police statement, Ex. PF, where it was not so recorded. 29. PW-6 further admitted in his cross-examination that Smt. Surti visited his house 3-4 times after Maklava ceremony till her death and on every occasion, she was brought by him but was taken back to her matrimonial home by Om Parkash, appellant. He has stated that they used to serve Om Parkash nicely and many a times, he spent night in his village. This fact suggests that the relations between Om Parkash and Surti were not strained on account of demand of dowry but there were normal relations. Otherwise, Om Parkash would not have come every time to take back Smt. Surti to matrimonial home. However, Om Parkash stated that he had stayed at night in the house of Surti only once but he was looked after well. Again it suggests that relations were not strained. He also stated that Smt. Surti delivered the first child in village Kirori at her matrimonial home, although it was customary to deliver the first child in the parental home but since he (PW-6 Keshar Chand) was not financially sound, so, he told them that the delivery should take place in village Kirori and they accepted it. PW-6 further stated that at the time of birth of female child, he had not given anything and he went to see her only after two months and then took some clothes, 2 Kgs. Ghee. The very fact that the appellants had accepted to effect delivery of Smt. Surti at the matrimonial home again suggests that there was no question of demand of dowry. Since, the financial condition of father of Surti was not well, so, it is difficult to believe that they had demanded anything from him. Only small gifts were given each time, which is customary to give to a visiting daughter. Since, the financial condition of father of Surti was not well, so, it is difficult to believe that they had demanded anything from him. Only small gifts were given each time, which is customary to give to a visiting daughter. Admittedly, Keshar Chand did not complain to anybody in writing about the harassment of Smt. Surti during 6-7 years of married life. The dead body of Smt. Surti was cremated in the presence of Keshar Chand, after he was called from Sirsa. Again, it suggests the conduct of the appellants that they had nothing to conceal. 30. PW-6 Keshar Chand admitted in his cross-examination that he did not meet any person of village Kirori to know the cause of death of Smt. Surti. Thus, there was no reason to believe that Smt. Surti had committed suicide or she had been murdered by the appellants. 31. PW-7 Jagraj son of Ram Dhan is brother-in-law of Keshar Chand, PW, as sister of Keshar Chand, PW, is married to him. He stated that Surti was being harassed on account of demand of dowry. He along with Vijay Kumar, Ramu and Keshar Chand went to Village Kirori about 6-7 months prior to her death and requested the appellants to bring Smt. Surti and they told that no ornaments had been given and nothing was given on the birth of the child and then Keshar Chand gave a Tabij for Surti, silver Karra for the female infant child and other clothes and then Smt. Surti was taken by the appellants. In the cross- examination, he admitted that he had told the police that when they had gone to Kirori to ask the appellants to bring Surti, they told that the ornaments had not been given. He was confronted with his police statement, Ex. DB where it was not so recorded. Thus, his statement about demand of dowry is a false statement, which cannot be believed. He further admitted that on 18.7.1987, it was decided that the matter be reported to the police on the same day. Thus, it is not clear as to why the report was lodged on 22.7.1987. It only shows that the time was gained to concoct a false version. He further admitted that on 18.7.1987, it was decided that the matter be reported to the police on the same day. Thus, it is not clear as to why the report was lodged on 22.7.1987. It only shows that the time was gained to concoct a false version. The witnesses have made vast improvements in their statements in the Court when the same are compared with the statements made to the police and as such, the testimony of the witnesses is not reliable and it is not proved beyond reasonable shadow of doubt that the appellants harassed Smt. Surti on account of demand of dowry and she had committed suicide on account of harassment caused by the appellants and as such it cannot be said that Smt. Surti was compelled to commit suicide but it is just possible that she may have slipped her foot in the well when she had gone to fetch water from there as suggested by PW-2 Piare Lal. If Smt. Surti had been harassed or tortured on account of demand of dowry by the appellants, then his first suspicion, on finding that Smt. Surti had died, should have been that she had committed suicide on account of dowry and would not have allowed the appellants to cremate her dead body. The very fact that he did not do anything and remained silent and returned to the Village suggests that he did not doubt the appellants for any foul play and the dead body of Surti was cremated without any post mortem examination with his consent. In view of the above discussion, I hold that the prosecution has not been able to bring home guilt to the appellants beyond reasonable shadow of doubt. Consequently, the appeal is accepted and the appellants are acquitted by giving benefit of doubt.