Research › Search › Judgment

Punjab High Court · body

2005 DIGILAW 516 (PNJ)

Sushil Kumar v. State Of Haryana

2005-04-25

SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. This judgment shall dispose of Criminal Appeal No. 128-SB of 1997 and Criminal Revision No. 379 of 1997, as the same have been filed against one and the same judgment and order dated 14.2.1997. 2. Criminal Appeal No. 129-SB of 1997 has been filed by Sushil Kumar, Om Parkash and Radha Devi, who are husband, father-in-law and mother-in-law, respectively, of deceased Salochna, against the judgment and order dated 14.2.1997, passed in case FIR No. 200 dated 28.5.1995 under Sections 304-B/498-A IPC, registered at Police Station Uchana, District Jind, vide which they have been convicted under Sections 304-B and 498-A IPC and sentenced to undergo rigorous imprisonment for a period of 10 years each under Section 304-B IPC and for a period of 3 years and to pay a fine of Rs. 2,000/- or in default of payment of fine to further undergo simple imprisonment for three moths, under Section 498-A IPC. Criminal Revision No. 379 of 1997 has been filed by Krishan Kumar, who is the complainant and brother of deceased Salochna, for enhancement of the sentence awarded to the appellants-accused. 3. Briefly stated, the marriage of the deceased Salochna was solemnized with accused Sushil Kumar on 12.3.1991. She gave birth to three children, two daughters and one son. She died on 27.5.1995 within seven years of the marriage. Her brother Krishan Kumar lodged the instant FIR. He alleged that death of his sister was a dowry death. They spent a good amount on the marriage and gave Rs. 20,000/- to the accused at the time of Muklawa ceremony. It was further alleged that whenever his sister visited their house, she used to complain against her husband, father-in-law and mother-in-law that they were harassing her for demand of dowry. On the said complaint, he along with his father and maternal uncle Umed Parkash went to the in-laws house of his sister and requested the appellants that they had given sufficient dowry in the marriage, therefore, his sister may not be harassed. Inspite of that, Om Parkash accused demanded Rs. 20,000/- and one golden ring in Chhuchak (Chhuchak is the customary gifts/payments which are given/made at the time of birth of a male child). The complainant further alleged that they requested the appellants that they are poor persons, therefore, they were not in a position to pay Rs. 20,000/- and a golden ring. 20,000/- and one golden ring in Chhuchak (Chhuchak is the customary gifts/payments which are given/made at the time of birth of a male child). The complainant further alleged that they requested the appellants that they are poor persons, therefore, they were not in a position to pay Rs. 20,000/- and a golden ring. It was also stated that they had already paid Rs. 20,000/- as per their demand at the time of Muklawa ceremony. It was further alleged by the complainant that four days prior to the death of his sister, he went to her house, where she told him that her husband, mother-in-law and father-in-law were still pressurising her to bring a golden ring and Rs. 20,000/- from her parents and on that account, they were harassing and maltreating her. It was further alleged that on 28.5.1995, appellant Om Parkash, father-in-law of the deceased, came to them and told that Salochna had suddenly fell ill on 27.5.1995 and her condition is serious and the Doctor of private hospital has advised them that she should be removed to Civil Hospital, Jind. When the complainant along with his father went to the house of his sister Salochna, they found her to be dead. It was further stated by the complainant that his sister had died either by consuming some poisonous substance given by her in-laws or was compelled to commit suicide due to maltreatment and harassment on account of demand of dowry made by her husband and parents-in-law. Then the matter was reported to the police and the instant FIR was lodged. 4. On 28.5.1991, at the request of the police, Dr. R.K. Singla and Dr. R.S. Khatri conducted post mortem of the deceased. As per the Post Mortem Report, no injury mark was found on the body of the deceased. No ligature mark was noticed on the neck of the deceased. Viscera of the deceased was sent for chemical examination, and as per report of the Chemical Examiner, no poison was noticed. However, the Doctors gave opinion that the cause of death was due to neurogenic shock which was ante-mortem in nature and sufficient to cause death in the ordinary course of nature. 5. After the investigation, the challan was submitted against all the three accused and after committal of the case, charges were framed against them under Sections 304-B and 498-A IPC. 5. After the investigation, the challan was submitted against all the three accused and after committal of the case, charges were framed against them under Sections 304-B and 498-A IPC. Though the prosecution cited 17 witnesses in its list of witnesses, but it examined only five witnesses, namely Krishan Kumar complainant, as PW-1, Ram Bhagat, father of the deceased, as PW-2, Dr. R.K. Singla, who conducted the post-mortem of the deceased and gave opinion regarding the cause of her death as PW-3, Lachhmann Singh, Draftsman, who prepared the site plan, as PW-4 and S.I. Om Parkash, the Investigating Officer of the case, as PW-5. 6. The appellants, in their statements under Section 313 Cr.P.C., took the defence that the deceased had died due to shock on hearing the news of abortion of her Jethani Savitri wife of Jiwan Dass. In support of their defence, they examined Urmila daughter of Jiwan Dass, as DW-1. 7. After considering the evidence led by the prosecution as well as the defence, the trial Court held that the death of the deceased was an unnatural death and the same has taken place within seven years of the marriage due to the demand of dowry made by the accused soon before her death. The presumption under Section 113-B of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act) was drawn against the appellants and they were found guilty of the offence under Sections 304-B and 498-A IPC. Accordingly, they were convicted and sentenced. Hence, this appeal by the appellants. 8. Counsel for the appellants submitted that the prosecution has failed to establish all the ingredients of the offence under Section 304-B IPC. He further submitted that the presumption under Section 113-B of the Evidence Act cannot be drawn against the appellants in this case. In this regard, counsel for the appellants while referring to ocular and medical evidence, made the following submissions :- (i) The deceased died a natural death and there is no evidence led by the prosecution on the record to establish that her death was un-natural. (ii) There is no evidence to establish that the deceased was subjected to cruelty or harassment by the accused in connection with demand of dowry. Even as per the allegations in the FIR, the alleged demand of Rs. (ii) There is no evidence to establish that the deceased was subjected to cruelty or harassment by the accused in connection with demand of dowry. Even as per the allegations in the FIR, the alleged demand of Rs. 20,000/- and a golden ring was made at the time of the Chhuchak ceremony, which persisted lateron. But the said demand does not fall under the definition of `dowry as defined under Section 2 of the Dowry Prohibition Act, 1961 (hereinafter referred to as the Dowry Act), as the said demand was not in connection with the marriage. (iii) There is no reliable evidence to prove that the alleged cruelty or harassment on account of demand of dowry was meted out to the deceased soon before her death. In this regard, counsel for the appellants submitted that the alleged demand of Rs. 20,000/- and a golden ring was made at the time of birth of second child and there was no valid reason that on account of the alleged demand, the deceased committed the suicide. There is no existence of a proximate and live-link between the effect of cruelty based on dowry demand and the concerned death. The alleged demand of dowry is remote in time and the same cannot be deemed to be stale enough to disturb the mental equilibrium of the deceased. (iv) In this case, death of the wife took place in the house of the husband situated at Railway Road, Tohana. It has come in evidence that the said house was recently constructed and the couple was living there separately from parents of the husband. Therefore, three is no evidence available against them regarding demand of dowry by them soon before the death of the deceased. Thus the conviction of appellants under Sections 304-B and 498-A IPC cannot be sustained at all. In support of this submission, the learned counsel relied upon decisions of the Honble Apex Court in Satvir Singh v. State of Punjab, 2001(4) RCR(Criminal) 355 (SC) and Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, 2005(1) RCR(Criminal) 861 and a Division Bench decision of this Court in Hari Singh v. State of Punjab, 2002(3) RCR(Criminal) 541. 9. In support of this submission, the learned counsel relied upon decisions of the Honble Apex Court in Satvir Singh v. State of Punjab, 2001(4) RCR(Criminal) 355 (SC) and Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, 2005(1) RCR(Criminal) 861 and a Division Bench decision of this Court in Hari Singh v. State of Punjab, 2002(3) RCR(Criminal) 541. 9. On the other hand, the State counsel, assisted by counsel for the complainant, submitted that keeping in view the age of the deceased, her death in this case even due to neurogenic shock, would amount to unnatural death and the same has taken place within seven years of the marriage. He further submitted that the prosecution has fully established that death of the deceased had occurred due to cruelty and harassment caused by the appellants in connection with demand of dowry. He submitted that every kind of demand, whether the same is in connection with birth of a male child, fails under the definition of dowry as defined in Section 2 of the Dowry Act. He submitted that any demand of money, property or valuable security made from the bride or her parents or their relatives would fall within the definition of dowry where such demand is not properly referable to any legally recognized claim and is relatable only to the consideration of marriage. In support of this submission, counsel for the complainant relied upon the observations made by the Honble Apex Court in Reema Aggarwal v. Anupam and others, 2004(1) RCR(Criminal) 776 (SC). He further submitted that there is ample evidence on the record which clearly establish that the demand or dowry was made four days before the death of the deceased, therefore, the appellants have been rightly convicted and sentenced under Sections 304-B and 498-A IPC. He, then, submitted that sentence awarded to the appellants is inadequate and it should be enhanced. 10. He, then, submitted that sentence awarded to the appellants is inadequate and it should be enhanced. 10. Section 304-B IPC which deals with the offence pertaining to dowry death reads as under :- "304-B. Dowry death - (1) Where the death of a woman is caused by any burns or bodily injury or 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 the death. Explanation - For the purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961)." In order to attract the application of Section 304-B IPC, the following essential ingredients must be established/proved by the prosecution :- (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance. (ii) Such a death have occurred within seven years of her 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. (v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. 11. Section 113-B of the Evidence Act provides for the presumption as to `dowry death. This section reads as under :- "113-B. Presumption as to dowry death. - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation - For the purpose of this section, dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)." 12. Section 2 of the Dowry Act defines "dowry" as under :- "Section 2. Explanation - For the purpose of this section, dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)." 12. Section 2 of the Dowry Act defines "dowry" as under :- "Section 2. Definition of `dowry - In this Act, `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 parents 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 mehr in the case of persons to whom the Muslim personal law (Shariat) applies. Explanation I - For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, cloths or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties. Explanation II - The expression `valuable security has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860)." 13. Thus, from the reading of the aforesaid provisions, for convicting an accused under Section 304-B IPC after raising the presumption under Section 113-B of the Evidence Act, the prosecution must prove on record that soon before her death, the victim was subjected to cruelty or harassment. The prosecution has also to rule out the possibility of a natural or accidental death so as to bring it within the purview of the `death occurring otherwise than in normal circumstances. In the instant case, the deceased before her death was hale and hearty. There is no material or evidence available on the record which can even remotely suggest that she was suffering from any disease or was ill. Though brother and father of the deceased suspected that she committed suicide by consuming some poisonous substance due to cruelty and harassment caused by the accused and because of demand of Rs. There is no material or evidence available on the record which can even remotely suggest that she was suffering from any disease or was ill. Though brother and father of the deceased suspected that she committed suicide by consuming some poisonous substance due to cruelty and harassment caused by the accused and because of demand of Rs. 20,000/- and a golden ring in connection with Chhuchak, but as per the medical evidence available on the record, no poison was detected from the viscera of the deceased. As per opinion of the Doctor, the cause or her death was neurogenic shock. Even if the case of death was neurogenic shock, in my opinion, the death of the deceased cannot be taken as natural. Therefore, I do not find any substance in the contention of counsel for the appellants that the prosecution has failed to prove one of the ingredients of Section 304-B IPC that the deceased died an un-natural death. 14. Now, the question for consideration is whether the deceased was subjected to cruelty or harassment by the accused on account of demand of dowry in connection with marriage and such cruelty or harassment was meted out to the deceased soon before her death. To prove these ingredients, the prosecution has examined only two witnesses, namely Krishan Kumar (PW-1) and Ram Bhagat (PW-2), brother and father of the deceased. Though the prosecution had cited three more witnesses in this regard, namely Rajinder Parshad, Smt. Jiwani Devi and Umed Parkash, who are brother, mother and maternal uncle, respectively, of the deceased, but it has examined only two witnesses. Both the aforesaid witnesses in their statements have stated that marriage of the deceased was performed decently and an amount of Rs. 20,000/- was paid to the appellants at the time of Muklawa. But they were not satisfied with the dowry given at the time of marriage and further a demand of Rs. 20,000/- and a golden ring was made by them at the time of Chhuchak ceremony on account of birth of male child to the deceased. The said demand was not met and remained alive. Both these witnesses have stated that they along with Umed Parkash, maternal uncle of the deceased, went to her in-laws house, when they demanded Rs. 20,000/- and a golden ring in Chhuchak. The said demand was not met and remained alive. Both these witnesses have stated that they along with Umed Parkash, maternal uncle of the deceased, went to her in-laws house, when they demanded Rs. 20,000/- and a golden ring in Chhuchak. These witnesses further stated that four days prior to the death of the deceased, her brother Krishan Kumar (PW-1) went to the house of his sister, where she told that her husband, father-in-law and mother-in-law were still pressurising her to bring Rs. 20,000/- and a golden ring and they are harassing and maitreating her at every available opportunity on account of the same. All this shows that the aforesaid demand was made by the accused at the time or Chhuchak ceremony. Both these witnesses have given contradictory statements regarding the date and time of the aforesaid demand raised by the accused. PW-1 states that the demand of Rs. 20,000/- and a golden ring was made after birth of the male child to the deceased, when they went to the in-laws house of the deceased in the month of November, 1993, whereas PW-2 states that they went to the house of in-laws of his daughter after the birth of the second child in the month of November, 1994. But one thing is clear that the aforesaid alleged demand was made in Chhuchak at the time of birth of the male child to the deceased. 15. Now, the question arises for consideration is whether the demand of Rs. 20,000/- and a golden ring in Chhuchak ceremony on account of birth of male child falls under the definition of `dowry as defined in Section 2 of the Dowry Act ? From the reading of this Section, which had been re-produced above, it appears that any demand of money, property or valuable security made from the bride or her parents by the bridegroom or his parents would fall within the mischief of the `dowry under the Dowry Act, where such demand is made at or before or any time after the marriage in connection with the marriage of the said parties. The Honble Apex Court in Satvir Singhs case (supra), while considering the definition of `dowry under the Dowry Act, has observed as under :- "22. Thus, there are three occasions related to dowry. The Honble Apex Court in Satvir Singhs case (supra), while considering the definition of `dowry under the Dowry Act, has observed as under :- "22. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is "at any time" after the marriage. The third occasion may appear to be an unending period. But the crucial words are "in connection with the marriage of the said parties". This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of "dowry". Hence the dowry mentioned in Section 304-B should be any property or valuable security given or agreed to be given in connection with the marriage." (emphasis added) 16. Similarly, in Kamesh Panjiyar @ Kamlesh Panjiyars case (supra), the Honble Apex Court has observed as under :- "14. The word "dowry" in Section 304-B IPC has to be understood as it is defined in Section 2 of the Dowry Act. Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third "at any time" after the marriage. The third occasion may appear to be unending period. But the crucial words are "in connection with the marriage of the said parties". Other payments which are customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression "dowry". (See Satvir Singh v. State of Punjab, 2001(4) RCR(Crl.) 355 (SC) : 2002(1) SCC 633). As was observed in said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused..... or occurs otherwise than under normal circumstances" as expressed in Section 304-B IPC." (Emphasis added) 17. (See Satvir Singh v. State of Punjab, 2001(4) RCR(Crl.) 355 (SC) : 2002(1) SCC 633). As was observed in said case "suicidal death" of a married woman within seven years of her marriage is covered by the expression "death of a woman is caused..... or occurs otherwise than under normal circumstances" as expressed in Section 304-B IPC." (Emphasis added) 17. From the aforesaid observations of the Honble Apex Court, it is clear that any payment, which is a customary payment i.e. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression `dowry. In the instant case, demand of Rs. 20,000/- and golden ring was admittedly made in Chhuchak. Chhuchak is a ceremony which is performed in the northern India at the time of birth of a child and one amounts/gifts are paid by the brother/parents of the wife to the husband and his family members. Therefore, such kind of payment or demand of such payment by the husband or his family members cannot be considered as `dowry or a demand made in connection with marriage. In Hari Singhs case (supra), a Division Bench of this Court held that the demand made at the time of Sandhara which is generally given on the occasions of festivals like Lohri, Karva Chauth, Holi etc. from the girls side to the boys side does not fall within the definition of `dowry. Thus, in my opinion, the alleged cruelty and harassment in this case was not caused by the appellants to the deceased in connection with demand of `dowry. 18. Further, I am of the opinion that the alleged demand of Rs. 20,000/- and a golden ring, which was made as per the prosecution witnesses, at the time of birth of male child in the Chhuchak ceremony, has no proximate and live link with the death of the deceased. The alleged demand or the alleged incident of cruelty is so remote in time and has become so stale enough by the time, which, in my opinion, was not to disturb mental equilibrium of the deceased. As per the medical opinion available on the record, the deceased died due to neurogenic shock. There is no evidence of any beating to the deceased. No injury was noticed on her body. As per the medical opinion available on the record, the deceased died due to neurogenic shock. There is no evidence of any beating to the deceased. No injury was noticed on her body. Even if it is presumed that the husband, in whose house she died, and his parents again repeated the demand of Chhuchak, that in my opinion will not give such a shock to the deceased that she will die due to neurogenic shock. Therefore, I am of the opinion that the demand of Rs. 20,000/- and golden ring four days prior to the date of occurrence was not sufficient to cause such a shock to the accused which would have caused the death. Thus, in this case, two important ingredients of Section 304-B IPC and raising of presumption under Section 113-B of the Evidence Act i.e. that the deceased was subjected to crueity or harassment by the accused for or in connection with demand of dowry, as defined in Section 2 of the Dowry Act, and such harassment was meted to the deceased soon before her death, have not been established by the prosecution and the conviction of the appellants under Section 304-B IPC cannot be sustained and the question or raising presumption under Section 113-B of the Evidence Act does not arise. 19. Now the question arises as to whether in the facts and circumstances of the case, the accused-appellants are liable to be convicted under Section 304 IPC. An accused can be convicted under Section 306 IPC if be abets or instigates a person to commit suicide. In the instant case, the prosecution has failed to establish that the deceased Salochna had committed suicide. As per the medical evidence, cause of her death was neurogenic shock and not poison, as suspected by her brother. Once it is held that the deceased did not commit suicide, then the accused-appellants cannot be convicted under Section 306 IPC. However, the prosecution has led sufficient evidence to prove that the accused-appellants have committed the offence under Section 496-A IPC. From the perusal of the statements of PW-1 and PW-2, it has been fully proved that the deceased was being harassed by the appellants with a view to meet their demand of Rs. 20,000/- and a golden ring, which was not satisfied at the time of Chhuchak ceremony. Therefore, the conviction of the appellants under Section 496-A IPC is upheld. From the perusal of the statements of PW-1 and PW-2, it has been fully proved that the deceased was being harassed by the appellants with a view to meet their demand of Rs. 20,000/- and a golden ring, which was not satisfied at the time of Chhuchak ceremony. Therefore, the conviction of the appellants under Section 496-A IPC is upheld. 20. Keeping in view the facts and circumstances of the case, sentence awarded to appellant No. 1 under Section 496-A IPC to undergo rigorous imprisonment for three years is upheld. However, keeping in view the fact that appellants No. 2 and 3 are 62 and 57 years old and the fact that three minor children of the deceased are living with them being their grand-parents, as the complainant or father of the deceased did not make any claim regarding their custody, I am of the opinion that the ends of justice will be met if the sentence of appellant Nos. 2 and 3 under Section 496-A IPC is reduced to already undergone i.e. about seven months each. Ordered accordingly. 21. Criminal Appeal is, accordingly, partly allowed and the Criminal Revision stands dismissed.