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2005 DIGILAW 301 (PNJ)

Suresh Kumar v. State Of Haryana

2005-02-23

UMA NATH SINGH

body2005
Judgment Uma Nath Singh, J. 1. This Criminal Appeal has been preferred against a judgment and order passed by learned Additional Sessions Judge, Rohtak, in the Sessions Trial No. 6 of 1992, wherein, though the accused was only tried upon a charge under Section 302, IPC, but has been convicted under Section 304-B, IPC and sentenced to a period of 7 years RI without giving him opportunity to place his defence thereunder obviously under impression that the offence under Section 304-B, IPC is minor to the one under Section 302, IPC. 2. The relevant facts of the prosecution case as stated in the impugned judgment on being extracted and reproduced read as under :- - "2. Sudesh Kumari daughter of Umed Singh resident of village Kawali, District Sonepat, was married to Suresh Kumar accused about nine months before her death which occurred on 22-3-1991. The case of the prosecution is that 11/2 month before her death Sudesh Kumari visited the house of her parents and told them that she was asked to bring television and some ornaments on her third visit to the matrimonial home. Umed Singh sent his daughter Sudesh Kumari on 9-3-1991 along with Suresh Kumar accused on her third visit but he could not give her television and ornaments. It is further the ease of the prosecution that for not meeting the aforesaid demand Sudesh Kumari was harassed by her in-laws. On 22-3-1991 Umrao Singh of Village Fatehpur came to Umed Singh and told him that his daughter Sudesh Kumari had died after consuming some tablet. Umed Singh accompanied by his uncle Chandan Singh, his brother Suraj Bhan and his nephew Rajbir went to village Mokhra to the house of Suresh Kumar accused. He found that the dead body of his daughter was lying on a bed in the Chaubara (room on the first floor) of the house of Suresh Kumar accused. There were several injuries caused with a knife on the neck of the deceased. The blood from these, injuries had fallen on the mattress and bed. Umed Singh and others made inquires and they came to know that Sudesh Kumari was murdered by Suresh Kumar accused. Umed Singh went to Rohtak for reporting the matter to the police. There he carne to know that village Mokhra was within the jurisdiction of police station Meham. The blood from these, injuries had fallen on the mattress and bed. Umed Singh and others made inquires and they came to know that Sudesh Kumari was murdered by Suresh Kumar accused. Umed Singh went to Rohtak for reporting the matter to the police. There he carne to know that village Mokhra was within the jurisdiction of police station Meham. He then went to the police station Meham and reported the matter there to S.I. Rameshwar Dass who recorded the F.I.R. on the basis of his statement, the carbon copy of which is Ex.PA. S.I. Rameshwar Dass then went to the cremation ground in village Mokhra along with some other police officials. There he prepared rough site plan Ex.PH in the presence of Phool Chand and Ved Pal. He lifted from the spot ash and bone pieces of Sudesh Kumari deceased which were made into parcels and sealed with the seal bearing impression RD. The same were taken into possession vide memo. Ex.PJ. S.I. Rameshwar Dass thereafter visited the place of occurrence and prepared the rough site plan Ex.PK of the said place. He took into possession one blood-stained mattress from the spot vide memo. Ex.PF. The accused were produced before S.I. Rameshwar Dass on 25-3-1991 by Daya Kishan Lambardar and they were arrested by him. After completion of investigation, the accused were challaned in the Court of Shri Lakshman Sharma. Addl. Chief Judicial Magistrate, Rohtak, who committed the case to the Court of Sessions and the same was assigned to this Court for trial. 3. On 24-7-1991, Suresh Kumar accused was charged under Section 302 of the Indian Penal Code and the other accused were, charged under Section 201 of the Indian Penal Code. They pleaded not guilty to the said charges and claimed trial." 3. Heard the rival submissions and perused the records. 4. 3. On 24-7-1991, Suresh Kumar accused was charged under Section 302 of the Indian Penal Code and the other accused were, charged under Section 201 of the Indian Penal Code. They pleaded not guilty to the said charges and claimed trial." 3. Heard the rival submissions and perused the records. 4. Learned counsel for the appellant, has raised a preliminary objection on the strength of a three Judge Bench judgment of Hon ble the Apex Court in the case of Shamnsaheb M. Multtani V/s. State of Karnataka, (2001) 1 Rec Cri R 617 : (2001 Cri LJ 1075), holding that in the absence of a specific charge under Section 304-B, IPC apart from one under Section 302, IPC, in case of acquittal under Section 302, IPC, an accused cannot be convicted under Section 304-B, IPC under impression that offence under this section is minor in nature. On the other hand, learned Assistant Advocate-General for the State, submitted that this point is squarely covered by Section 221(2), Cr.P.C. and that in his examination under Section 313, Cr.P.C. the accused has been asked a specific question on demand of dowry. 5. In the judgment of Hon ble the Apex Court under reference this point, of law has already been discussed in great detail holding that offence under Section 304-B, IPC cannot be minor to Section 302, IPC, and in respect thereof, a separate charge be framed mainly on the ground that accused does not get an opportunity to place his defence to that charge and that there is a presumption as to dowry death under Section 113-B of the Indian Evidence Act. Thus, in the absence of a specific charge for a distinct offence under Section 304-B, IPC, the accused cannot be convicted on that account. Hence, Hon ble the Apex Court with a view to afford opportunity to the accused to advance his defence in respect of offence under Section 304-B, IPC was pleased to set aside the conviction and sentence passed thereunder and remanded the case for a fresh consideration. 6. In the instant case also, since Sudesh Kumari died within 9 months of marriage and there was an allegation that she was being harassed as her parents failed to meet the demand of dowry by her husband, the presumption as to dowry death under Section 113A of the Evidence Act would be attracted. 6. In the instant case also, since Sudesh Kumari died within 9 months of marriage and there was an allegation that she was being harassed as her parents failed to meet the demand of dowry by her husband, the presumption as to dowry death under Section 113A of the Evidence Act would be attracted. However, it appears from the charge that the accused-appellant was tried upon only under Section 302, IPC but was convicted under Section 304-B, IPC. Hence, the ratio of the judgment (supra) would cover this case. Thus, on careful consideration of the rival submissions, without expressing any opinion on merits of the case, I hereby set aside the conviction and sentence passed by learned Additional Sessions Judge, Rohtak, in the Sessions Trial No. 6 of 1992 and remand the case to his Court for a fresh consideration on merits after framing proper charges. Learned Additional Sessions Judge, Rohtak, shall complete the entire exercise within two months from receipt of copy of the judgment. 7. Hence, the Crl. Appeal is allowed not on merits by re-appreciating the evidence on record but only on the ground of preliminary objection as discussed hereinabove. The Registry is directed to remit the records of the case forthwith to the Court of learned Additional Sessions Judge, Rohtak, for compliance.