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2010 DIGILAW 2020 (PNJ)

Harish Kumar v. State of Haryana

2010-07-12

M.JEYAPAUL

body2010
JUDGMENT M. Jeyapaul, J.(Oral) 1. All the three accused, who were convicted for the offence under Section 304-B and 498-A of the Indian Penal Code and were sentenced to undergo seven years rigrous imprisonment for the only offence under Section 304-B of the Indian Penal Code, have preferred the present appeal. 2. The brief case of the prosecution is as follows: a) Subhash Chander was the father of the deceased Manisha. Deceased Manisha was married to the first accused Harish Kumar on 14.1.1992. The second accused Krishan Kumar was the brother-in-law and third accused was the mother-in-law of the deceased Manisha. Dowry was given according to the financial status of Subhash Chander. However, the accused were not happy with the dowry given at the time of marriage. There was a demand of gold jewellery after two months of marriage. For the satisfaction of the accused, two pairs of ear rings and a ring were given by PW8 to them. The accused having been not satisfied with the dowry given continued their demand for more dowry. A male child was born to Manisha in the month of November 1992. Gifts were given during the occasion of birth of the child to Manisha but the accused were not satisfied with the gifts given. b) Hari Chand, PW10, the father of Subhash Chander, PW8, who resided at Hansi also gave a sum of Rs.5,000/-to the accused to fulfil partly the demands of gold chain and ear ring for mother-in-law of the deceased Manisha. c) During the month of December 1992, the first accused visited Subhash Chander, PW8 and raised the demand for getting a house purchased for him. All the accused started torturing the deceased Manisha. d) On 12.9.1993, the first accused came to the house of PW8 alongwith the deceased Manisha to attend betrothal ceremony of a relative of PW8. The next day morning on 13.9.1993, the first accused raised a demand of scooter. PW8 Subhash Chander gave a sum of Rs.11,000/-in cash and expressed his difficulty to pay remaining cost of the scooter. As the demand could not be met by PW8, the accused got annoyed. e) On 13.9.1993 at about 11.00 p.m. when Dr.M.L.KKalra, PW1, was on emergency duty, Manisha was brought with burn injuries by her husband for treatment. She was found restless crying with pain. She reported that she sustained injuries due to the accidental burns. As the demand could not be met by PW8, the accused got annoyed. e) On 13.9.1993 at about 11.00 p.m. when Dr.M.L.KKalra, PW1, was on emergency duty, Manisha was brought with burn injuries by her husband for treatment. She was found restless crying with pain. She reported that she sustained injuries due to the accidental burns. PW1 having medico legally examined the deceased Manisha noted that superficial burn injuries were present on the anterior part of neck, most parts of trunk, right side of back, both buttocks, both thighs including knees, right foot, most of left upper limb and medial part of right upper limb. The total area of burn was 50 to 60%. Having found that the burn injuries sustained by Manisha were dangerous to life he sent an intimation Ex.PB to the police station. f) PW13 having received the intimation Ex.PB proceeded to the General Hospital, Hansi and moved an application Ex.PC seeking the opinion of the doctor as to whether Manisha was in a fit state of mind to make a statement. PW1 gave an opinion at 00.05 a.m on 14.9.1993 that the injured Manisha was unfit for making any statement. On the very same day, at about 7.30 a.m., PW13 again proceeded to the Hospital and moved another application before the very same doctor. He declared Manisha fit to make a statement. The opinion of the doctor was marked as Ex.PC/2. He moved an application Ex.PL before the Judicial Magistrate at Hansi who assigned the work to the Tehsildar vide order Ex.PL/1. The Assistant Tehsildar came down to the Govt. Hospital, Hansi and recorded the statement of Manisha in the presence of DW1 Dr.Surender Singh who certified that Manisha was fit to give statement at 10.15 a.m. DW2 recorded the statement of Manisha and completed the same by 10.45 a.m. Manisha has given statement before DW2 that she sustained burn injuries accidentally. The statement given by Manisha was marked as Ex.DG. g) Manisha informed PW6, Smt. Raj that it was only the first accused who set fire to her. She also informed PW6 to inform her parents. Manisha died on 19.9.1993 in the Hospital. h) PW8 having been informed that the first accused set fire to her lodged a complaint to PW13 who directed PW7 to register the case. After registration of case, PW13 took up the case for investigation. She also informed PW6 to inform her parents. Manisha died on 19.9.1993 in the Hospital. h) PW8 having been informed that the first accused set fire to her lodged a complaint to PW13 who directed PW7 to register the case. After registration of case, PW13 took up the case for investigation. i) PW4 Subhash Chand was the landlord of the first accused. He spoke about the harassment meted out to Manisha by the first accused. Hans Raj, PW5 was the neighbour of the first accused. He also spoke to the harassment meted out to Manisha. j) Dr.Nalini Cooner, PW3, conducted the post mortem examination on the dead body of Manisha and opined that the deceased died due to burn injuries which were ante mortem in nature and its complications. PW13 having completed the investigation laid final report against the accused 1 to 3. 3. On the side of defence, Dr.Surender Singh was examined. He has deposed that he was present at the time when the Assistant Tehsildar, DW2 recorded the statement of victim lady Manisha at about 10.15 a.m. on 14.9.1993. He has also certified that Manisha was in a fit state of mind throughout the proceedings recorded by DW2. 4. DW2 Assistant Tehsildar was examined by the accused to show that the dying declaration recorded by DW2 was completely suppressed by the Investigating Agency. DW2 has deposed that after verifying the fact that the injured Manisha was in a fit state of mind from DW1, he recorded the statement of Manisha. Manisha has stated in her dying declaration before DW2 that the fire injuries sustained by her was accidental. 5. The trial Court having relied upon the dying declaration alleged to have been given by the deceased to PW6 and the evidence of PW4, PW5, PW8, PW9 and PW10, held that all the three accused have committed offences under Section 304-B and 498-A of the Indian Penal Code. 6. Learned counsel for the appellants-accused would submit that the very fact that the first accused was living separately from the second and third accused would go to demolish the case of the prosecution that they made any demand of dowry. The witnesses have spoken in general about the demand made by the second and third accused. 6. Learned counsel for the appellants-accused would submit that the very fact that the first accused was living separately from the second and third accused would go to demolish the case of the prosecution that they made any demand of dowry. The witnesses have spoken in general about the demand made by the second and third accused. No specific demand of dowry had emanated from the second and third accused even as per case of the prosecution, he would further submit that the prosecution has completely suppressed the dying declaration given by the deceased before DW2. The trial Court has failed to note that the oral dying declaration alleged to have been given by the deceased to PW6 did not inspire confidence, inasmuch as, she had not chosen to inform any of the relatives of the deceased. Learned counsel appearing for the appellants also pointed out that PW6 was examined by the Investigating Officer on 27.9.1993, four days after the complaint was given and two days after the case was registered. The trial Court also completely ignored the evidence of PW1 who first admitted the injured to the hospital for treatment. PW1 has deposed that injured informed that she sustained burn injuries accidentally. No explanation was given by the prosecution for the delay in lodging the complaint and for registration of the case. The evidence of PW4, the landlord of the first accused and PW5 Hans Raj, a neighbour of the house taken on rent by the first accused, cannot also be believed as they were found to be interested witnesses. Referring to the statement of PW9, he would submit that mother of the deceased has deposed that the first accused as well as the deceased jointly demanded an amount for purchasing a scooter. Therefore, it is his submission that the prosecution has not established the charges as against the accused beyond reasonable doubt. 7. The Public Prosecutor for the State would submit that the parents of the deceased as well as the grand-father of the deceased have spoken to the effect that there was a demand of dowry which ultimately culminated in cruelty. The neighbour and the landlord of the first accused have also cogently spoken to the cruelty committed by the first accused. The dying declaration, alleged to have been recorded by DW2, does not inspire confidence, inasmuch as, Manisha was capable of putting signature. The neighbour and the landlord of the first accused have also cogently spoken to the cruelty committed by the first accused. The dying declaration, alleged to have been recorded by DW2, does not inspire confidence, inasmuch as, Manisha was capable of putting signature. De hors dying declaration alleged to have been given to DW2, and the oral declaration alleged to have been given by the deceased, the prosecution could establish with other materials on record that there was a demand of dowry by the accused and they also committed cruelty in connection therewith which took away life of the deceased Manisha. 8. Let me first take up the role of the second and third accused in the alleged demand of dowry, coupled with cruelty, which ultimately culminated in her dowry death. PW8 is the father of the deceased Manisha. He would depose that after two months of the marriage, the first accused and his family members started demanding dowry. It is to be noted that PW8 was not specific as to the family members who actually demanded dowry alongwith the first accused in this case. The demand of money for purchasing a house, demand of neckless and ear rings had been made only by the first accused as per the version of PW8. Therefore, it is very clear that PW8 has not specifically implicated the second and third accused in the demand of dowry, coupled with cruelty which led to her dowry death. 9. PW9 is the mother of Manisha. She has also not spoken specific roles of the second and third accused. She had spoken about the demand of dowry made by the first accused. 10. PW10 is the grand father of Manisha. It is on record that he was residing at a distance about 500 yards from the house of the first accused. He would depose that he had to pay a sum of Rs.5,000/-to the first accused for the purchase of pair of ear rings and a ring about three months after the marriage. Again a demand of Rs.20,000/-was made by the first accused for purchasing a scooter. Nothing has been spoken by PW10 against second and third accused with respect to the demand of dowry and the other charges levelled against them. 11. The PW4 landlord of the first accused would categorical state that the first accused had set up a separate establishment in his house. Nothing has been spoken by PW10 against second and third accused with respect to the demand of dowry and the other charges levelled against them. 11. The PW4 landlord of the first accused would categorical state that the first accused had set up a separate establishment in his house. Therefore, there would have been no occasion for second and third accused who lived separately to make a demand jointly alongwith the first accused. He has deposed that the first accused and deceased Mansiha lived in his house five months prior to the accident. He has deposed before the trial Court that the accused used to beat her by making a demand of dowry. A demand of scooter worth Rs.20,000/-was also made by the accused and the maltreatment continued when he resided in his house as tenants. There is no reason to disbelieve the evidence of PW4, the landlord of the first accused. 12. The other material witnesses examined by the prosecution with respect to the demand of dowry and cruelty had spoken about the role of the first accused. There is no whisper about the role of the second and third accused in their evidence. 13. In view of the facts and circumstances, I find that the trial Court has erred in coming to the conclusion that the second and third accused had committed offences under Section 304-B and 498-A of the Indian Penal Code, despite the lack of materials produced by the prosecution. Therefore, I have no hesitation to upset the verdict of the trial Court as far as the conviction of second and third accused and the sentence imposed for the offence under Section 304-B and 498-A of the Indian Penal Code. 14. PW8 being the father, PW9 being the mother and PW10 being the grand-father of the deceased Manisha are the competent witnesses to speak about the demand of dowry and cruelty committed by the first accused. A married woman would share her agonies in the matrimonial home only to her family members. PW8, PW9 and PW10 have cogently spoken to the persistent demand of dowry by the first accused. In fact, PW8 and PW10, the father and grand-father of the deceased Manisha had to oblige to certain extent the demand made by the first accused. PW8 had to part with a pair of ear rings and a ring as demanded by the first accused. In fact, PW8 and PW10, the father and grand-father of the deceased Manisha had to oblige to certain extent the demand made by the first accused. PW8 had to part with a pair of ear rings and a ring as demanded by the first accused. He had also to pay a sum of Rs.11,000/-towards the purchase of scooter, negating the demand made for purchasing a house. PW9 supporting materially the evidence of PW8 and PW10 has spoken to the fact that PW8 had to pay a sum of Rs.5,000/-to the first accused for purchasing a pair of ear rings and a ring about three months after the marriage and the first accused also demanded a sum of Rs.20,000/-for purchasing a scooter. PW8 has deposed that the first accused gave a beating to her daughter as he did not oblige the demand of money for purchasing a house. 15. The delay in lodging the first information report is quite understandable. The evidence of PW8, PW9 and PW10 cannot be ignored. 16. PW5 is the neighbour of the first accused. It appears that he has come out with a version that Manisha narrated in his presence the harassment meted out to her in the matrimonial home for the first time before the trial court, taking a marked departure from the statement he had given during the course of investigation under Section 161 of the Code of Criminal Procedure. Therefore, his evidence does not inspire confidence. The improvement he has made from the original stand cannot be safely relied upon by the Court of law. 17. PW3 Dr. Nalini Cooner had conducted the post mortem examination of dead body of Manisha. She has opined after the post mortem examination that Manisha had died due to burn injuries which she sustained. The marriage took place on 14.1.1992. The occurrence had unfolded on 13.9.1993 when Manisha had breath her last on 19.9.1993. The aforesaid materials would go to establish without any pale of doubt that the demand of dowry made by the first accused, coupled with cruelty compelled the victim Manisha to take her life. 18. PW6 Smt. Raj has been projected by the prosecution as though an oral declaration was given by sinking Manisha on the very day of her death. The aforesaid materials would go to establish without any pale of doubt that the demand of dowry made by the first accused, coupled with cruelty compelled the victim Manisha to take her life. 18. PW6 Smt. Raj has been projected by the prosecution as though an oral declaration was given by sinking Manisha on the very day of her death. It is her evidence that on 19.9.1993 when she went to the hospital for seeing Manisha , her husband had been to a shop. At that point of time the injured Manisha unfolded her heart that it was only the first accused who caused her death by setting fire. It is her evidence that the deceased also informed her that this message should be passed on to her parents. PW6 is none other than the wife of the paternal uncle of the deceased Manisha. Though PW6 would state that she disclosed this information to her husband, it appears that message did not reach PW8 to PW10. If at all the deceased had really confid toed her that it was only the accused who set her fire, there is no reason for her to keep this information without divulging the same to PW8, PW9 or PW10. Therefore, the evidence of PW6 does not appear to be natural. 19. PW1 who admitted the injured Manisha to the hospital and examined her medico legally has deposed that injured Manisha informed him that she sustained burn injuries accidentally. PW1 had taken steps to record the dying declaration. PW13 having received intimation from PW1 made a request to the Judicial Magistrate who unfortunately delegated his function to an Assistant Tehsildar. The attitude of the learned Judicial Magistrate in delegating such a function is deprecated by this Court. Learned Judicial Magistrate is bound to record the dying declaration. As otherwise, most valuable piece of evidence would be lost for ever. Such an act of the Judicial Magistrate would amount to dis-service to the society. PW13 Investigating Officer had to approach the Assistant Tehsildar for recording dying declaration as directed by learned Judicial Magistrate. 20. DW2 Assistant Tehsildar having ascertained the fit state of mind of the victim Manisha through DW1 has recorded the dying declaration of Manisha. Manisha has stated before him that she sustained burn injuries due to the accidental fire. 21. PW13 Investigating Officer had to approach the Assistant Tehsildar for recording dying declaration as directed by learned Judicial Magistrate. 20. DW2 Assistant Tehsildar having ascertained the fit state of mind of the victim Manisha through DW1 has recorded the dying declaration of Manisha. Manisha has stated before him that she sustained burn injuries due to the accidental fire. 21. The victim Manisha accompanied by her husband throughout had informed PW1 that she sustained burn injuries due to the accidental fire. Similar statement was made by her before the Assistant Tehsildar DW2 who chose to record her dying declaration. It is to be noted that the husband was very much present at the time when PW1 jotted down the reasons for injuries sustained by Manisha. The presence of the husband of Manisha, the first accused herein, has been specifically noted by PW1. The real reason for the burn injuries sustained by Manisha had been completely suppressed by her when the culprit was very much present alongwith her. It is quite natural that the victim would not come out with real truth in such circumstances. 22. The evidence on record would go to show that PW8 and PW9 had not exhibited concern for the injured. PW8 had gone to Delhi immediately after seeing his daughter in the hospital. PW9 was the mother of Manisha who had gone to Delhi to join her husband when Manisha was fighting for life a day before her death. PW9 has also deposed that she had visited the house of the first accused only for a day. PW8 and PW9 would categorically depose that they had not participated in the cremation of their own daughter Manisha. 23. Above fact and circumstances would go to show that Manisha had been left in the lurch by her parents. She had to leave behind her tender child aged below one year in the custody of first accused. Under such circumstances she would not have come out with real truth even during the course of giving dying declaration to DW2. She would have been confronted with the future of her tender child on the one hand and the crime committed by the first accused, who was the only option to entrust the tender child. The dying declaration given by Manisha under such circumstances to DW2 cannot at all be taken into consideration. She would have been confronted with the future of her tender child on the one hand and the crime committed by the first accused, who was the only option to entrust the tender child. The dying declaration given by Manisha under such circumstances to DW2 cannot at all be taken into consideration. The trial Court has rightly dis-believed the dying declaration recorded by DW2. 24. Of course, there is some delay in lodging the First Information Report by PW8. As already pointed out by me the parents of the deceased had not shown their love and affection towards Manisha who was fighting for her life. They had not even participated in the cremation of Manisha. Further the victim had come out with a totally different version before DW2. For all these reasons, PW8 had taken his own time to lodge a complaint. Such a delay in lodging the first information report cannot be taken advantage of by the accused. 25. The Hon'ble Supreme Court in State of H.P. v. Raj Kumar Chopra and another 1994 Supp (2) SCC 318 has held that the first information report lodged by the father of the victim alleging that the victim told him that the accused persons poured kerosene oil for not bringing adequate dowry, in the face of dying declaration already given by the victim to a respectable and highly qualified doctor in the presence of the police officers when she sustained injuries due to burst of stove does not inspire confidence. That was a case where the father has come out with a story after 5 days of the occurrence that an oral dying declaration was given to him. In the instant case, independent of the alleged oral dying declaration, the prosecution could establish the charge as against the first accused. Therefore, observations made by the Hon'ble Supreme Court in the above case would not apply to the facts and circumstances of this case. 26. This Court in Rajbir v. State of Haryana 2004(4) RCR (Criminal) 589 has held that the demand made by the husband to meet her hospitalization expenses to take care of his pregnant wife and the taunting remarks made by the husband that his wife hailed from a poor household would not amount to offence of cruelty. The facts and circumstances of the instant case is totally different. The facts and circumstances of the instant case is totally different. Therefore, the aforesaid decision also would not apply to the facts and circumstances of this case. 27. The trial Court has returned a verdict of conviction as against the first accused for offence under Section 304-B and Section 498-A of the Indian Penal Code on proper appreciation of materials on record. There is no reason to upset such a decision arrived at by the trial Court. Therefore, the conviction recorded by the trial Court as against the second and third accused for offences under Sections 304-B and 498-A of the Indian Penal Code and sentence imposed thereunder stands set aside, but the conviction recorded by the trial Court as against the first accused for the offences under Sections 304-B and 498-A of the Indian Penal Code and the sentence imposed thereunder on the first accused stands confirmed. If the first accused is on bail, his bail bonds, shall stand cancelled. The Chief Judicial Magistrate concerned shall take necessary steps in accordance with the provisions of law, to comply with the judgment within a period of two months, from the date of receipt of a copy of the same, keeping inview the applicability of the provisions of Section 428 of the Code of Criminal Procedure. The appeal is allowed in part accordingly. Appeal allowed.