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2003 DIGILAW 1703 (PNJ)

Rajbir v. State of Haryana

2003-12-20

MEHTAB S.GILL

body2003
JUDGMENT Mehtab S. Gill, J. - Prosecution story in brief is that Bharat Singh, the father of the deceased made a statement before the police on June 25, 1992 that his daughter Santosh who was illiterate was married to appellant Rajbir. He further stated that after the marriage, his daughter-in-law started demanding a Godrej Almirah, a motor-cycle and other items. Two days prior to the death of his daughter, appellant Rajbir came to his village and threatened that he would kill Santosh if she is not brought back to her ancestral home. Bharat Singh sent his son Suresh and maternal nephew Jagminder to the house of appellant Rajbir. Rajbir and Rama did not allow them to enter their house. Suresh returned to his village at about 9.00 P.M. On the next morning, he along with Daya Nand and Wazir Singh went to Jind. They had come to know that the dead body of Santosh was lying in the Civil Hospital, Jind. Later on, he came to know that Santosh was given tablets of some pesticides. Complainant came to the Civil Hospital, Jind. He saw the dead body of his daughter. He made a statement before the police, which is exhibit PA. Formal First Information Report (Exhibit PA/1) was recorded. 2. Prosecution in order to prove its case brought into the witness box Bharat Singh (PW-1), Dr. G.D. Gupta (PW-2), Mohmad Ishakh Khan, Inspector (PW-3), Chatter Singh, Constable (PW-4), Harish Kumar Dutta (PW-5), Suresh, brother of deceased Santosh (PW-6), Daya Nand, uncle of the deceased (PW-7), Kuldip Gupta, draftsman (PW-8) and Om Parkash, retired Assistant Sub Inspector (PW- 9). 3. Appellant Rajbir made a statement under Section 313 of the Code of Criminal Procedure, wherein he has stated that about two years before the death of Santosh, he was posted at Sonepat. He kept Santosh along with the children at Sonepat. He did not make any demand for additional dowry. He used to take the deceased to her parents house in village Kheri Masania. He stated that a few days before the death of Santosh, Bharat Singh (PW-1) came to his house and asked Santosh (deceased) to prevail upon the parents of the wife of his son Krishan to come to Kheri Masania, as she had been taken by her mother and two brothers after lodging a report against the complainant-party in Police Station Uchana. Deceased declined to extend any help in the matter. On this, Bharat Singh got upset and while leaving, he stated that unless and until, this is not done by her, deceased should not come to his house, nor show her face alive to him. 4. I have heard the learned counsel for the appellant and the learned counsel for the State and perused the record with their assistance. 5. Learned counsel for the appellant at the very out-set has stated that a case under Section 304-B of the Indian Penal Code is not made out against the appellants. At the most, it is a case under Section 306 of the Indian Penal Code. Santosh (deceased) had committed suicide on being told by her father Bharat Singh that she should not show her face to him, unless and until, she tries to have the matter compromised between Kailasho (the niece of Rama- appellant No. 2) and her husband Krishan (the son of Bharat Singh PW-1) through Rama (appellant No. 2), as Kailasho filed a criminal complaint against her husband Krishan and his father Bharat Singh (PW-1). Learned counsel has stated that it is because of this threat that Santosh chose to end her life. 6. Learned trial Court in para No. 19 has stated in its judgment that the defence plea is not improbable, but the defence of the appellant, though being improbable, cuts both ways. If the learned trial Court in its judgment, has come to this conclusion that this defence cuts both ways, the benefit of the story should be given to the accused-appellants. 7. Occurrence in this case has taken place on June 25, 1992 in the morning. First Information Report has been lodged on June 25, 1992 at 11.00 A.M. and the Special Report has reached the same day, i.e., June 25, 1992 at 6.30 P.M. There is no delay in lodging the First Information Report. This goes a long way in proving the case of the prosecution. 8. Learned counsel for the appellants has stated that he does not want to contest the appeal on merits. The only thing, he wants to contest, is that, offence under Section 304-B of the Indian Penal Code is not made out. At the most, offences are made out under Sections 306/498-A read with Section 34 of the Indian Penal Code. 9. Learned counsel for the appellants has stated that he does not want to contest the appeal on merits. The only thing, he wants to contest, is that, offence under Section 304-B of the Indian Penal Code is not made out. At the most, offences are made out under Sections 306/498-A read with Section 34 of the Indian Penal Code. 9. Learned counsel for the State has stated that the story, which has been put forward by the defence that Rama (appellant No. 2) is Bua of Kailasho. Kailasho is married to Krishan, who is the son of Bharat Singh PW-1. Santosh (deceased), who is the daughter of Bharat Singh, is married to Rajbir (appellant No. 1). There was a dispute between the husband and wife, i.e., Kailasho and Krishan, as a criminal complaint was filed by Kailasho against Krishan and his father Bharat Singh (PW-1), which Bharat Singh (PW-1) wanted to get resolved by prevailing upon her (his ?) daughter Santosh (deceased) through Rama (appellant No. 2) and if this is not done, Bharat Singh threatened to her daughter Santosh not to show her face to his father, cannot be taken into consideration, as there was no relationship between the deceased and Kailasho. 10. Bharat Singh (PW-1) has stated in his testimony that Kailasho used to call Rama (appellant No. 2) Bua. Though, there may not be any blood relationship, but there was a close relationship between the parents of the deceased and Kailasho. 11. Learned counsel for the appellant has relied on a judgment of the Honble Supreme Court rendered in the case of Hira Lal and others v. State (Govt. of NCT) Delhi, 2003(3) RCR(Criminal) 830, wherein it has been held that the Expression "soon before" would imply that interval should not be much between the concerned cruelty or harassment and the death in question. It has been further held that under Sections 113-B of the Evidence Act and 304-B of the Indian Penal Code, the evidence should show that "soon before" her death, victim was subjected to cruelty or harassment. Prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case, presumption operates. "Soon before" is a relative term and it would depend upon the circumstances of each case. No strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. Prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case, presumption operates. "Soon before" is a relative term and it would depend upon the circumstances of each case. No strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. No definite period can be indicated and it would be hazardous to indicate any fixed period. 12. In the case in hand, the basic requirement of cruelty or harassment "soon before" the death, which is applicable under Section 304-B of the Indian Penal Code, is absent. 13. I do not find any infirmity in the judgment dated September 4, 1993 passed by the learned Additional Sessions Judge, Jind. Apart from that, the appellants should have been sentenced under Section 306 of the Indian Penal Code instead of 304-B of the Indian Penal Code. 14. Appellant Rajbir has already undergone two years and two months of actual sentence. Appellant Rama has already undergone one year and six months of actual sentence. Appellant Rama Kishan, who was sentenced to undergo one year rigorous imprisonment for an offence under Section 498-A of the Indian Penal Code only has undergone two months of actual sentence. 15. This fact cannot be lost sight of that the appeal is pending since 1993. The sword of conviction is hanging on the head of the appellants for the last 10 years. It would be a travesty of justice to convict them apart from their sentence having already undergone. Appellants, i.e., Rajbir and Rama are convicted under Sections 306/498-A read with Section 34 of the Indian Penal Code. Sentence of these appellants is modified to the extent already undergone. Sentence of appellant Ram Kishan shall be modified to already undergone. Fine imposed upon all the appellants shall also stand intact. With the above modifications, appeal is dismissed. Appeal dismissed.