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2007 DIGILAW 779 (PNJ)

Sharwan v. State Of Haryana

2007-03-30

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. The appellants were convicted for the commission of offence punishable under Section 498-A of the Indian Penal Code, vide order dated 15.6.1995 of the learned Sessions Judge, Gurgaon. Appellant No. 1 Sharwan, was sentenced to undergo imprisonment for about two years and five months and also to pay a fine of Rs. 5,000/- and as he had already spent the period in custody, his sentence was ordered to be set off. Appellant No. 2 Dayawati was sentenced to undergo simple imprisonment for a period of one year and also to pay a fine of Rs. 5,000/-. 2. The allegations against the appellants are that on May 6, 1992 the marriage of appellant No. 1 was solemnized with one Anita daughter of complainant Siri Chand, who was working as Sub Inspector in Delhi Police. According to the FIR, sufficient dowry had been given to appellant Sharwan. After few days of the marriage, Sharwan, his mother Dayawati, uncle Indraj Singh and aunt Premwati, allegedly harassed Anita in her matrimonial home repeatedly for bringing less dowry. The complainant took Anita to his house, where she is said to have disclosed about the ill-treatment meted out to her. On January 26, 1993, Anitas husband had forcibly taken her away from her parental home, though, he was asked by Anitas mother not to take away Anita. Appellant No. 1 is stated to have threatened the complainants wife that he will never visit the house of his in-laws and not allow Anita to live. 3. On January 29, 1993, appellant No. 1 Sharwan informed his father-in-law Siri Chand that Anita had died. The report was lodged with the Gurgaon Police on January 30, 1993. 4. The police investigated the matter and it transpired that Anita had died as a result of hanging. After completing the investigation, a final report regarding the commission of offence punishable under Sections 304-B, 498-A and 406 read with Section 34 of the Indian Code, was filed before the Ilaqa Magistrate. 5. The case was committed to the Court of Sessions and charge against Sharwan, Indraj, Dayawati and Premwati, was framed under Sections 498-A and 304-B of the Indian Penal Code. All the accused persons denied the allegations and claimed trial. 6. The prosecution in order to establish the case against the appellants examined number of witnesses. 7. 5. The case was committed to the Court of Sessions and charge against Sharwan, Indraj, Dayawati and Premwati, was framed under Sections 498-A and 304-B of the Indian Penal Code. All the accused persons denied the allegations and claimed trial. 6. The prosecution in order to establish the case against the appellants examined number of witnesses. 7. In the statement recorded under Section 313 Cr.P.C., appellant No. 1 Sharwan took the plea that his wife Anita was having illicit relations with Jaldeep, who was the son of her maternal uncle. On January 26, 1993, during his visit at the place of his in-laws, he had found Anita and Jaldeep in a compromising position to which he had objected and brought Anita back to his house. On the day of the occurrence, he was away on duty to his place of work at Press Trust of India, Delhi, where he was employed, when Anita committed suicide on account of guilt and shame. Information regarding death had been given to in-laws but he and his mother and other relatives were arrested. Dayawati, mother of Sharwan also took the same plea. Indraj, his wife Premwati took the plea that they are living separately and they have nothing to do with the case and that they never demanded any dowry from the parents of Anita. 8. Evidence in defence was led by the appellants to establish that on the fateful day, appellant No. 1 was not even present in the house and he was on way to Delhi in connection with his duty. The trial Court after perusal of the evidence, before it, acquitted all the accused persons of the charge under Section 304-B of the Indian Penal Code, but recorded the conviction of the appellants under Section 498-A of the Indian Penal Code and sentenced them to the periods of imprisonment mentioned in the opening paragraph of this judgment. 9. Learned counsel for the appellants has contended that there is a delay in lodging of the FIR in this case. The occurrence had taken place on January 29, 1993 at about 10 a.m., whereas the FIR came into existence at 2 p.m. on 30.1.1993. The statement of PW-4 Siri Chand shows that he had on January 29, 1993, came to his village first, instead of rushing to the place where his daughter had died. The occurrence had taken place on January 29, 1993 at about 10 a.m., whereas the FIR came into existence at 2 p.m. on 30.1.1993. The statement of PW-4 Siri Chand shows that he had on January 29, 1993, came to his village first, instead of rushing to the place where his daughter had died. Thereafter, he went to his brother and then came to Gurgaon on January 30, 1993 and then FIR was lodged. It was sought to be contended by learned counsel for the appellants that the conduct of the complainant was not good and that the lodging of the FIR, was result of deliberations resulting in the introduction of various allegations. Reliance was placed on Ram Kumar Pande v. The State of Madhya Pradesh, AIR 1975 SC 1026. 10. On the other hand, learned counsel for the State contended that perusal of the statement of PW-4, the complainant, shows that dowry demands were repeatedly made by the appellants from the complainant and his family. The deceased died on account of maltreatment meted out consistently to her by the appellants on this score. 11. I have heard learned counsel for the parties and have perused the record. 12. Delay in lodging of the FIR ipso-facto is not considered to be a factor which would shake the foundation of the case. Each case is to be seen and tested in the backdrop of evidence emerging from it. A perusal of cross- examination of PW-4 Siri Chand reveals that there have been tremendous improvements made subsequent to the lodging of the FIR. The relevant portion of the cross-examination of PW-4 is reproduced here :- "The fact that I called my daughter from her in-laws family through my son as my wife had to go to Vaishno Devi, was not got detailed in application Ex. PH. Volunteered, I specified in my application dated 2.2.1993. The facts that Sharwan Kumar accused made a demand for plot and I asked him to search for it and to help him, was not specified in Ex. PH, being under depression at that time. The fact that on the occasion of Sankrant I myself took presents and gave Rs. 5001/- was not specified in Exh. PH being under depression. The fact that I received a telephone message at my house about my daughter being tortured was not specified in my application Ex. PH being under depression. PH, being under depression at that time. The fact that on the occasion of Sankrant I myself took presents and gave Rs. 5001/- was not specified in Exh. PH being under depression. The fact that I received a telephone message at my house about my daughter being tortured was not specified in my application Ex. PH being under depression. The fact that while on duty on 29.1.1993 I received message from Duty Officer about getting a telephone from Sharwan was not detailed as such in Ex. PH. The fact that on getting message I got perplexed and went to my brother who was not there and thereafter I went to village Palawa, was not specified in Ex. PH being under shock. The fact that I reached Gurgaon on 30.1.1993 along with my brother is not specified in Ex. PH. The fact that when I reached the hospital post-mortem had already taken place and no body from accused party was there with the dead body was not specified in Ex. PH." 13. The Supreme Court in Ram Kumar Pande v. The State of Madhya Pradesh (supra) has observed as follows :- "No doubt, an FIR is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case." 14. FIR is not supposed to be a magna carta of the allegations but it is essential that it contains sufficient material to attract the provisions of the Penal Code so as to subsequently establish the culpability on the basis of evidence which is likely to come on record, especially when the entire basis of the case of prosecution is to rest solely on the gamut of allegations. 15. In the instant case the FIR does not disclose any such instances which coupled with evidence on record could lead to an inference that the deceased was being subjected to cruelty on account of demands being made upon her. That apart the death in this case is said to have taken place within short period of nine months of the marriage. That apart the death in this case is said to have taken place within short period of nine months of the marriage. The appellants have been acquitted of the charge of Section 304-B as the trial Court held that the presumption under Section 304-B of the Evidence Act did not come into play as it had not been established by the prosecution "that soon before the death deceased has been subjected by the accused to cruelty or harassment in connection with the demands of dowry." The question which is to be examined now is as to what would the term "subjected to cruelty or harassment by the husband or his relative in connection with any demand for dowry before the death" mean. In my considered opinion the demand or harassment immediately before the death is not to be measured in hours and days. In my considered opinion the demand or harassment immediately before the death is not to be measured in hours and days. Rather, if the period of such harassment or demands raised is soon enough so as to form an umbilical cord between the demands and the commission of the offence, it would be sufficient to attract the presumption of law under Section 113(b) of the Evidence Act to establish the culpability of person of an offence under Section 304-B. The death in the instant case took place within nine months of the marriage which period is extremely short and any demand made during this interregnum leading to the death of the deceased would have been sufficient to satisfy the expression "subjected to cruelty or harassment by the husband or his relative in connection with any demand for dowry before the death" and attract the presumption of law and hence sufficient to establish the conviction under Section 304-B. The trial Court, however, clearly held that there was no such evidence to establish that she was being subjected to cruelty or harassment on account of the demands of dowry and on such a finding it awarded an acquittal of the appellant of the charge under Section 304-B. If the demand of dowry and harassment was not established for the purposes of recording a conviction under Section 304-B and keeping in view the short interregnum or short duration of the subsistence of marriage, it could not be said that there were any demand or harassment to establish the commission of an offence punishable under Section 498-A. As noticed above, there are sufficient improvements in the statement of PW-4 complainant which were not there at the time of recording the FIR Ex. PH. 16. Resultantly, the appeal is allowed and the appellants are acquitted on the charge under Section 498-A of the Indian Penal Code.