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2009 DIGILAW 2225 (PNJ)

Chander Pal v. State of Haryana

2009-12-22

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J. - This appeal, is directed, against the judgment of conviction dated 23.04.98, and the order of sentence dated 29.04.98, rendered by the Court of Additional Sessions Judge (I), Faridabad, vide which, it convicted the accused, for the offence, punishable under Section 304-B of the Indian Penal Code, and, sentenced them, to undergo rigorous imprisonment, for a period of 7 years. 2. The facts, in brief, are that, on 27.06.92, Smt. Urmila, moved a complaint PA, before the Deputy Superintendent of Police, Palwal, alleging therein, that she was a resident of Palwal, and had married her daughter namely Shashi, to Chander Pal, accused, resident of village Hudithal, two years, prior to her death. She further alleged that, at the time of marriage of her daughter, she had given sufficient dowry, as per her capacity, but Chander Pal, and his parents, were not satisfied with the same, and started raising demand of scooter. She further alleged that the accused, used to harass her daughter, by telling that, she was not to be kept, in her matrimonial home, until she brought the scooter, and, in case, she failed to do so, then Chander Pal, one of the accused, shall contract the second marriage. She further alleged that, on 16.06.92, at about 5.00/6.00 PM, Chander Pal, Manbir and Shanti, accused, alongwith some other persons, namely Manvir, Satto Devi, Anara, Unus etc. killed Shashi, for want of dowry, and gave it the colour of suicide. 3. The aforesaid complaint, was forwarded, by the Deputy Superintendent of Police, Palwal, to the Station House Officer, Police Station Hathin, whereupon, Om Parkash, Assistant Sub Inspector, recorded Report No. 15, in the Daily Diary Report, copy whereof, is PD. Thereafter, verification of the allegations, levelled by Smt. Urmila, was conducted by the Police as a result whereof, it came to the fore, that Madhu, the younger sister of Shashi (deceased), had gone, to her house, in order to look after her minor child a few days prior to her (Shashis) death. It further came to the fore, that during her (Madhus) stay, in the house of Shashi (deceased), she committed suicide, by hanging herself, and, in her very presence, Chander Pal, one of the accused, cut the saree, with which, she (Shashi), was found hanging, by means of a knife and brought her down, on the ground. It further came to the fore, that during her (Madhus) stay, in the house of Shashi (deceased), she committed suicide, by hanging herself, and, in her very presence, Chander Pal, one of the accused, cut the saree, with which, she (Shashi), was found hanging, by means of a knife and brought her down, on the ground. It further came to light that, at the relevant time, Madhu, was threatened, not to disclose the aforesaid incident, to anybody. 4. On the basis of Report No. 15, dated 27.06.92, and the initial verification, copy whereof, is PE, first information report No. 146, under Section 304 B of the Indian Penal Code, was recorded, on 15.07.92, by Om Parkash, Assistant Sub Inspector, Police Station Hathin. Thereafter, the statements of Madhu, Sunita and Hari Singh, were recorded, under Section 161 of the Code of Criminal Procedure, on 17.07.92. Kanwar Pal, also made a statement, before the Police, that once, he had gone to village Hudithal, when Shashi (deceased), gave him letter P1, which he delivered, to her (Shashis) mother. On 20.07.92, Smt. Urmila, produced letter P1, before the Police, which was taken into possession, vide memo PG, by Om Parkash, Assistant Sub Inspector. Thereafter, Om Parkash, Assistant Sub Inspector, arrested the accused, on 27.08.92. 5. On 28.08.92, Chander Pal, accused, was interrogated, by Om Parkash, Assistant Sub Inspector, in the presence of Balbir Singh, Moharir Head Constable, and, Rati Ram, Constable. During the course of his interrogation, he suffered disclosure statement PC, to the effect, that he had concealed the saree and the knife, in his house, of which he only knew, and could get the same recovered. In pursuance of his disclosure statement, he got recovered both the aforesaid articles, which were taken into possession, vide memo PD. On 17.07.92, Om Parkash, Assistant Sub Inspector, prepared the rough site plan PF of the place of occurrence. On 02.11.92, scaled site plan PJ of the place of occurrence, was got prepared. After the completion of investigation, the accused, were challaned. 6. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. On 02.11.92, scaled site plan PJ of the place of occurrence, was got prepared. After the completion of investigation, the accused, were challaned. 6. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case, was received, by commitment, in the Court of Sessions, Charge under Section 304-B of the Indian Penal Code, was framed against the accused, which was read over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 7. The prosecution, in support of its case, examined Smt. Urmila, mother of Shashi (deceased) (PW1), Madhu (PW2), Sunita (PW3), both sisters of Shashi (deceased), Hari Singh (PW4), Kanwar Pal (PW5), Om Parkash (PW6), Balbir Singh, Head Constable (PW7), Om Parkash, Assistant Sub Inspector (PW8), the Investigating Officer, and Subhash Chand, draftsman (PW9). Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 8. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by them that they never harassed Shashi, deceased, at any time, in connection with the demand of dowry or otherwise. It was further stated by them that she had died because of diarrhoea. It was further stated by them that they had informed her parental side also, at that time, and she was cremated after they were fully satisfied about the cause of her death. It was further stated by them that, later on, they turned dishonest and with a view to blackmail them, fabricated a false case, against them. They, however, examined Ashok Kumar (DW 1), in their defence. Thereafter, they closed their defence evidence. 9. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 10. Feeling aggrieved, the instant appeal, has been filed by the accused/appellants. 11. During the pendency of appeal Shanti Devi, accused, died, on 20.03.07. 12. I have heard the Counsel for the parties, and, have gone through the record of the case, carefully. 13. 10. Feeling aggrieved, the instant appeal, has been filed by the accused/appellants. 11. During the pendency of appeal Shanti Devi, accused, died, on 20.03.07. 12. I have heard the Counsel for the parties, and, have gone through the record of the case, carefully. 13. For constituting the offence, punishable under Section 304-B of the Indian Penal Code, the prosecution is required to prove that a married lady, died within seven years of her marriage; otherwise than under normal circumstances; and soon before her death, she was subjected to cruelty, in connection with the demand of dowry, by her husband, or his relatives. Once, these ingredients are proved, then the statutory presumption, under Section 113-B of the Indian Evidence, 1872, operates that the accused committed the dowry death. No doubt, such a presumption, is rebuttable. Now, let us see, as to whether, these ingredients, are proved, in this case, or not. In the instant case, it was proved, that Sushma, died, within 7 years of her marriage, otherwise than under normal circumstances. Two ingredients, for constituting the offence, punishable under Section 304-B of the Indian Penal Code, therefore, stood proved, from the evidence, on record. 14. The Counsel for the appellants, submitted that the third ingredient, that Sushma @ Shashi, was subjected to cruelty, in connection with the demand of dowry, by the accused, much less soon before her death, was not proved, and, as such, the trial Court, fell into a grave error, in recording conviction and awarding sentence, to the accused. The submission of the Counsel for the appellant, in this regard, appears to be correct. Urmila wife of Late Harpal, PW 1, is the mother of the deceased. She stated that the accused, used to harass Sushma, for want of more dowry, including scooter and transfer of agricultural land other share, in the property of her father. She did not state even a single word, as to when, the alleged demand of dowry articles, was made, by the accused, for the first time. She also did not state, as to, on which date, such demand, was made, by the accused, for the last time. She also did not state even a single word that, immediately before the death of Sushma, on 16.06.92, any demand of the aforesaid dowry articles, was made, by the accused, resulting into her death. Madhu, PW2, is the sister of the deceased. She also did not state even a single word that, immediately before the death of Sushma, on 16.06.92, any demand of the aforesaid dowry articles, was made, by the accused, resulting into her death. Madhu, PW2, is the sister of the deceased. She was aged about 15 years, at that time. She did not state even a single word, with regard to the demand of dowry, at any point of time, by the accused, from her. sister or from her parents. Sunita, PW3, another sister of the deceased, stated that the accused, used to harass Sushma, on account of more dowry, including scooter and agricultural land, to the extent of her share, she was having, in the property of her father. She further not state even a single word, as to when the first and the last demand, was made, by the accused, She also did not state even a single word, that Sushma, was tortured, in connection with the demand of dowry. Hari Singh, PW4, also made a statement, with regard to the harassment of Sushma, in connection with the demand of dowry, in the shape of scooter and agricultural land, referred to above. His statement, is also vague, in this regard. P1 is the letter, which was allegedly written, by one Shashi Bala. This letter, was tried to be connected with Sushma. This letter is undated. It does not bear the stamp of the post office. There is no mention, in this letter, regarding the demand of scooter. There is only mention, in this letter, with regard to the transfer of the land of the share of Sushma. The date, time, and month, when the demand, was raised, for the first time, and the date, time and month, when the demand, was raised, for the last time, were not mentioned therein. Kanwar Pal, PW5, stated that, in the month of December, 1992, when he went to his friend Shakti Singh, who belongs to village Harithal, Shashi gave him the letter P l, aforesaid. As stated above, Sushma, died on 16.06.92. This letter was apparently fabricated, later on. Even otherwise, no reliance, could be placed, on such a letter, to establish, that the accused, used to harass Sushma, in connection with the demand of dowry. As stated above, Sushma, died on 16.06.92. This letter was apparently fabricated, later on. Even otherwise, no reliance, could be placed, on such a letter, to establish, that the accused, used to harass Sushma, in connection with the demand of dowry. There is also another circumstance, on the record, which clearly goes to show, that no demand of dowry, was ever made, by the appellants, from Sushma, or from her parents. When the cremation of Sushma, on 17.06.92, took place, Hira Singh, Ballu alias Balbir Singh, Dr. Fateh Singh, Hari Singh, Dewan, Urmila, Sunita and many other persons, were present, at village Harithal, where Sushma, had been married. The cremation of Sushma, took place, in their presence. In case, they had any inkling, in their mind, that Sushma, committed suicide, as she was tortured, in connection with the demand of dowry continuously, then they would not have allowed her body, to be cremated. In those circumstances, they would have certainly got the post-mortem examination conducted thereon. They, however, did not do so, and allowed the cremation of Sushma, peacefully. This circumstance, clearly showed, that no demand of dowry, whatsoever, was made, by the accused, from Sushma, or her parents, at any point of land of the share of Shushma. The date, time, and month, when the demand, was raised, for the first time, and the date, time, and month, when the demand, was raised, for the last time, were not mentioned therein. Kanwar Pal, PW5, stated that, in the month of December, 1992, when he went to his friend Shakti Singh, who belongs to village Harithal, Shashi, gave him the letter P1, aforesaid. As stated above, Sushma, died, on 16.06.92. This letter, was apparently fabricated, later on. Even otherwise, no reliance, could be placed, on such a letter, to establish, that the accused, used to harass Sushma, in connection the demand of dowry. There is also another circumstance, on the record, which clearly goes, to show, that no demand of dowry, was ever made, by the appellants, from Sushma, or from her parents. When the cremation of Sushma, on 17.06.92, took place, Hira Singh, Ballu alias Balbir Singh, Dr. Fateh Singh, Hari Singh, Dewan, Urmila, Sunita and many other persons, were present, at village Harithal, where Sushma, had been married. The cremation of Sushma, took place, in their presence. When the cremation of Sushma, on 17.06.92, took place, Hira Singh, Ballu alias Balbir Singh, Dr. Fateh Singh, Hari Singh, Dewan, Urmila, Sunita and many other persons, were present, at village Harithal, where Sushma, had been married. The cremation of Sushma, took place, in their presence. In case, they had any inkling, in their mind, that Sushma, committed suicide, as she was tortured, in connection with the demand of dowry continuously, then they would not have allowed her body to be cremated. In those circumstances, they would have certainly got the post-mortem examination conducted thereon. They, however, did not do so, and allowed the cremation of Sushma, peacefully. This circumstance, clearly showed, that no demand of dowry, whatsoever, was made, by the accused, from Sushma, or her parents, at any point of time, right from the date of marriage, until her death. In Narayanamurthy v. State of Karnataka & another, [2008(3) All India Criminal LR (S.C.) 263], it was held, that mere evidence of cruelty and harassment, could not be said to be sufficient to bring in application Section 304-B of the Indian Penal Code. It was further held, that it was required to be established, that soon before death, the deceased, was subjected to cruelty or harassment, by her husband or his relatives for, or, in connection with the demand of dowry. If the alleged incident of cruelty was remote, in time, and had become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. So the third ingredient, required for constituting the offence, that the deceased, was subjected to cruelty, in connection with the demand of dowry, soon before her death, was not proved, from the evidence, on record. The submission of the Counsel for the appellants, in this regard, carries substance, and, is accepted. 15. It was next submitted by the Counsel for the appellants, that there was delay of 8 days, in moving the application, before the Senior Superintendent of Police, for lodging the first information report, 11 days, in recording the Daily Diary Report, and about 1 month, in lodging the first information report, copy whereof, is PE. He further submitted that, delay in lodging the first information report, gave rise, to the presumption, that the same, was utilized, to falsely implicate the accused, introduction of false witnesses, and concoction of story. He further submitted that, delay in lodging the first information report, gave rise, to the presumption, that the same, was utilized, to falsely implicate the accused, introduction of false witnesses, and concoction of story. The submission of the Counsel for the appellant, in this regard, appears to be correct. According to the prosecution story, Madhu, PW2, a minor sister of Sushma, who had gone, to meet her, while coming alongwith other relatives, after the cremation, stated that she cut the saree of Sushma, with the help of knife, with which, she had committed suicide. She also stated that Manbir and Chander Pal, accused, took her inside a room, and threatened that, in case, the facts of occurrence, were disclosed, by her, she would also be done to death like Sushma. No reliance, on the statement of Madhu, PW2, could be placed. In case, on the date of cremation, while returning, to the house, it was told by Madhu, to her relatives, as to how, Sushma, died, then the first information report, could be lodged immediately thereafter. It is not known, as to how, it took so long, in moving an application, before the Senior Superintendent of Police, and then lodging the first information report. The delay, in lodging the first information report, therefore, was not explained. In Thulia Kali v. State of Tamil Nadu (1972) 3 Supreme Court Cases 393, it was held that the FIR in a criminal case, is an extremely vital and valuable piece of evidence, for the purpose of corroborating the oral evidence, adduced at the trial. The importance of the report, can hardly be over-estimated, from the standpoint of the accused. The object of insisting upon prompt lodging of the report, with the Police, in respect of commission of an offence, is to obtain early information, regarding the circumstances, in which the crime was committed, the names of the actual culprits, and the part played by them, as well as the names of the eye-witnesses, present at the scene of occurrence. Delay in lodging the first information report, quite often results in embellishment, which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account of the prosecution story, as a. result of deliberation and consultation. Delay in lodging the first information report, quite often results in embellishment, which is a creature of after-thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account of the prosecution story, as a. result of deliberation and consultation. It is, therefore, essential that the delay in the lodging the first information report, should be satisfactorily explained. In that case, there was a delay of about 20 hours, in lodging the F.I.R., though the Police Station was only at a distance of two miles. Hence this circumstance was taken, as the one, to raise considerable doubt, regarding the veracity of the case, and it was held that it was not safe to base conviction. In this view of the matter, the submission of the Counsel for the appellants, being correct, is accepted. 16. No doubt, Sushma, committed suicide, inside the house of her in-laws. The allegations, that the accused, used to torture Sushma, in connection with the demand of dowry, were not proved. No direct evidence, was produced, on the record, that the accused instigated the deceased, to commit suicide, or entered into any conspiracy, to aid her, in committing suicide. The cruelty, should be of such a nature as is likely to drive the woman to commit suicide or cause grave injury or danger to life, limb or health of a woman. The letter P1, has been held, to be a fabricated document. Madhu, PW2, did not state even a single word, that the accused, in any way, instigated Sushma, to commit suicide. The mere fact, that Sushma, was found hanging, with her scarf, and cutting the same, by Madhu, PW2, in itself, did not go to prove, that there was any instigation, on the part of the accused, as a result whereof, she committed suicide. In Rajababu & another v. State of M.P., 2008(3) RCR (Criminal) 890 (SC), in similar circumstances, it was laid down, that the accused, could not be held guilty, for the offence, punishable under Section 306 of the Indian Penal Code. No offence, under Section 306 of the Indian Penal Code, was also not committed by the accused. 17. No other point, was urged, by the Counsel for the parties. 18. No offence, under Section 306 of the Indian Penal Code, was also not committed by the accused. 17. No other point, was urged, by the Counsel for the parties. 18. In view of the above discussion, it is held, that the judgment of conviction and the order of sentence, are not based, on the correct reading and due appreciation of evidence, as also law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would have certainly come to the conclusion, mat the prosecution, had failed, to prove its case, beyond a reasonable doubt. The judgement of conviction and the order of sentence are perverse and illegal, and, as such, liable to be set aside. 19. For the reasons recorded above, the appeal, qua Chander Pal and Manbir is accepted. The judgment of conviction and the order of sentence, rendered by the trial Court, qua them, are set aside. They are acquitted of the charge, framed against them. In case, Chander Pal and Manbir, appellants, are in custody, they shall be set at liberty, at once, if not required, in any other case. In case, they are on bail, they shall stand discharged of their bail bonds forthwith. 20. The appeal qua Shanti Devi, appellant, abates, as she died during the pendency of appeal. 21. The Chief Judicial Magistrate, is directed, to comply with the judgement, in accordance with law. Order accordingly.