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2010 DIGILAW 2805 (PNJ)

Ashok Kumar v. State Of Haryana

2010-10-01

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. The present appeal has been preferred by the appellant challenging his conviction u/s 304 B and 498 A IPC vide judgment dated 16.8.2002 delivered by the Court of learned Sessions Judge, Gurgaon (for short as `the trial Court). 2. Vide order dated 17.8.2002, the appellant was sentenced to 7 years RI u/s. 304 B and to undergo RI for two years for conviction u/s. 498-A. In addition to the sentence under Section 498-A, a fine of Rs. 2,000/- was also imposed and in default of payment of fine, appellant was ordered to further undergo RI for three months. 3. In nut-shell, the facts, as narrated in para 2 of the impugned judgment, are as under : "On 13.12.2000 Rohtash Singh, Sub Divisional Magistrate, Gurgaon, received a message (Ex.PE) from Police Station, Bilaspur, to the effect that Smt. Suman wife of Ashok Kumar has died under mysterious circumstances and as such proceedings under Section 176 of the Code of Criminal Procedure, be conducted. On receipt of said information, he visited Harijan Basti, Bohra Kalan. The dead body of Suman was lying on the cot. He prepared report under Section 176 of Code of Criminal Procedure (Ex.PF). He recorded the statement of Sher Singh (Ex.PF/1) wherein he stated that he is a labourer. He got his daughter Suman, aged 22/23 years, married with Ashok Kumar resident of Bohra Kalan in April, 1996 according to Hindu rites and ceremonies. She has daughter aged one year. After marriage, his son in law Ashok Kumar used to quarrel with his daughter Suman and used to pressurise her to bring money from her parents. His another daughter Geeta was married with Nihal, elder brother of Ashok. Nihal had expired 5/6 months earlier. Geeta, thereafter, started staying with him. However, Ashok Kumar used to pressurise Suman to bring her (Geeta) as well to him and used to proclaim that if she is not sent to him, Suman will be done to death. A month prior, his daughter Suman had visited him and returned to her in laws house next day. Yesterday, i.e. on 12.12.2000 his cousin Krishan resident of Bohra Kalan had informed him that Suman is ill and he should visit him hurriedly. A month prior, his daughter Suman had visited him and returned to her in laws house next day. Yesterday, i.e. on 12.12.2000 his cousin Krishan resident of Bohra Kalan had informed him that Suman is ill and he should visit him hurriedly. On this, he alongwith Kalu Ram visited village Bohra Kalan and went to his daughters house and found that his daughter Suman is lying on a cot and till now, he had been verifying the cause of death of his daughter. He has a suspicion that he son in law Ashok Kumar has poisoned her to death. He signed the statement in token of its correctness....." 4. The inquest proceedings were completed by the SDM Gurgaon Sh. Rohtash Singh and body was sent for post-mortem by him. Along with the post mortem report, the inquest report Ex. PF was forwarded to the SHO Police Station Bilaspur on 15.12.2000. Thereafter, on 20.12.2000, an FIR was registered at Police Station Bilaspur and special report regarding it was sent to the Illaqa magistrate on the same day. 5. On completion of investigation, the accused/appellant was charge-sheeted for the commission of offence punishable under Sections 498-A/304-B of IPC, to which he pleaded not guilty and claimed trial. 6. To prove its case, the prosecution examined 13 witnesses out of whome material witnesses are Sher Singh, PW10, is the father of the deceased, Kalu Ram, PW11, is the uncle of the deceased and Dr. S.K. Sharma, SMO, ESI Hospital, Faridabad, PW-12, is the doctor, who conducted the post mortem and prepared and also gave his opinion about the cause of death. 7. Krishan, the cousin of Sher Singh, PW-10, who is stated to have informed Sher Singh regarding the ill health of Suman on 12.12.2000 was given up as having been won over. 8. After completion of prosecution evidence, the accused/appellant was examined under Section 313 of the Code of Criminal Procedure in which he denied all the incriminating circumstances appearing against him in the prosecution evidence and pleaded his false implication in the present case. In his defence, the appellant produced 2 witnesses, namely Ram Saran, DW-1 and Mangat Ram, DW2 and took the defence of alibi by stating that on the day of occurrence i.e. 12.12.2000, he was at his in-laws house. 9. In his defence, the appellant produced 2 witnesses, namely Ram Saran, DW-1 and Mangat Ram, DW2 and took the defence of alibi by stating that on the day of occurrence i.e. 12.12.2000, he was at his in-laws house. 9. After hearing the learned counsel for the parties, the learned Trial Court convicted and sentenced the accused/appellant for the offence and the term as reflected at the outset in para 1 of this judgment. 10. Feeling aggrieved by the judgment and order of the learned trial Court, the accused/appellant has preferred this appeal, which was admitted by this Court on 7.10.2002. 11. The learned counsel for the appellant has submitted that in order to sustain a conviction u/s 304 B, the most relevant fact to be proved is that harassment was caused to the deceased on account of dowry and such harassment was caused immediately or `soon before her death. 12. The veracity of allegations regarding demand of dowry demand and harassment in relation thereto immediately before the death of deceased Suman has to be tested by scanning the prosecution evidence, in particular from the testimonies of PW 10 who is the father of the deceased and PW 11 who is the brother of PW 10 i.e. uncle of the deceased. 13. A careful perusal of the testimony of PW-10 i.e. father of the deceased before the learned trial Court reveals that the deceased was pressurised by the accused for bringing the dowry. PW-10 has further stated that the deceased used to turn out from the matrimonial home after every two months. However, in his cross-examination, there is categoric statement to the effect that at the time of marriage no demand of dowry was made by the accused. In addition he also stated that his daughter never told him as to how much money the accused had demanded. In fact the thrust of the examination-in-chief of PW-10, was in proving the fact that accused/appellant had an eye on his other daughter named Geeta, who was incidentally married to Nihal, the elder brother of the accused/appellant, who unfortunately had expired about 5-6 months back and since then Geeta had been living with her father Sher Singh, PW-10. In fact the thrust of the examination-in-chief of PW-10, was in proving the fact that accused/appellant had an eye on his other daughter named Geeta, who was incidentally married to Nihal, the elder brother of the accused/appellant, who unfortunately had expired about 5-6 months back and since then Geeta had been living with her father Sher Singh, PW-10. A perusal of the examination-in-chief of Sher Singh, PW-10, further shows that one month prior to the death of the deceased, accused/appellant had taken Suman, i.e., the deceased from the house of Sher Singh, PW10 and even at that point of time appellant-Ashok had asked Suman, the deceased, that Geeta should also be sent along. However, this was objected to by Sher Singh, PW10 and appellant Ashok was reprimanded on this count. 14. PW-11 Kalu Ram has corroborated PW10 regarding the demand of dowry by the accused from the deceased after their marriage. However, neither in his cross-examination nor in examination-in-chief, this witness has anywhere deposed that immediately before the death of the deceased, the appellant had raised any demand of dowry and harassed her in this regard. 15. Learned counsel for the appellant while relying upon the aforementioned testimonies of PW-10 and PW-11, has argued that no offence under Section 304-B of IPC is made out in the facts and circumstances of the present case in as much as the father of the deceased himself has stated that there was no demand of dowry at the time of marriage. Moreover, nothing has come on record in their testimonies, which may even remotely suggest that soon before her death, the deceased was subjected to harassment on account of dowry demands. In this regard reliance has been placed by the learned counsel on the judgment of Honble the Supreme Court of India delivered in Crl Appeal No. 756 of 1999 titled as Harjit singh v. State of Punjab cited as 2006 (1) RCR (Crl.) 133. 16. The learned counsel for the appellant has also argued that there is unexplained delay of 8 days in lodging the FIR, because the alleged occurrence is of 12/12/2000, whereas the FIR was registered on 20/12/2000. 17. On the other hand, learned counsel for the State has submitted that as per testimonies of PW10 and PW11, it is made out that the deceased was pressurised by the accused for bringing money. 17. On the other hand, learned counsel for the State has submitted that as per testimonies of PW10 and PW11, it is made out that the deceased was pressurised by the accused for bringing money. He has further submitted that accused/appellant had an eye on Geeta (sister of the deceased), who was incidentally married to Nihal, the elder brother of the accused/appellant, who unfortunately had expired about 5-6 months back. He has further submitted that there is no delay in lodging the FIR. 18. I have heard the learned counsel for the parties and perused the record with their able assistance. 19. There is force in the contention of the learned counsel for the appellant regarding delay in recording the FIR although the same has been discarded by the learned trial Court. The occurrence took place on 13.12.2000. The FIR was registered on 20.12.2000. The inquest proceedings were completed by SDM Sh. Rohtash Singh, PW9, on 15.12.2000 and alongwith the inquest report, Exhibit PF forwarded the post mortem report to Police Station Bilaspur on 15.12.2000 itself. Therefore, the delay of 8 days in registration of the FIR has gone totally unexplained, which casts a serious doubt on the veracity of prosecution case. 20. Although, in his defence, the appellant has taken the plea of alibi, the same is not relevant for adjudging the guilt of the appellant. As has already been mentioned above for sustaining a conviction under Section 304-B of IPC, what is important is that it must be proved that soon before the death, the deceased was subjected to cruelty or harassment on account of dowry. The two best witnesses, who could have substantiated the allegations appearing against the appellant regarding cruelty and harassment on account of dowry, have not stated anything worth placing reliance for conclusively holding that the deceased was subjected to cruelty on account of dowry demands immediately before her death. 21. Although, as per Dr. S.K. Sharma, PW12, the cause of death as per the report of Chemical Examiner, is on account of consuming organo phosphorous poisoning, which clearly indicates an unnatural death but the reasons for the same are not disclosed by the prosecution evidence which has been brought on record in this case. 21. Although, as per Dr. S.K. Sharma, PW12, the cause of death as per the report of Chemical Examiner, is on account of consuming organo phosphorous poisoning, which clearly indicates an unnatural death but the reasons for the same are not disclosed by the prosecution evidence which has been brought on record in this case. In the instant case, the reason for the unfortunate demise of Suman, appears to be the undue and unwarranted interest of the appellant shown in her elder sister Geeta, widow of his elder brother. Therefore, it is made out that the prosecution has suppressed the true genesis of the crime. 22. In view of the above, the present appeal is allowed. The judgment and order of the learned Trial Court is set aside and the appellant is acquitted of the charges under Section 304-B of IPC and Section 498-A of IPC. The appellant is stated to be on bail. His bail bonds shall stand discharged. 23. Since the main appeal is disposed of by this judgment, the misc. application pending, if any, shall also stand disposed of. Appeal allowed.