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2010 DIGILAW 3055 (PNJ)

Bhupender v. State Of Haryana

2010-11-15

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. The present appeal is directed against judgment of conviction dated 30.4.2001 and order of sentence dated 3.5.2001 passed by the learned Sessions Judge, Bhiwani thereby convicting the appellant for the commission of offence under Sections 304-B/498-A of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for a period of ten years under Section 304-B of the Indian Penal Code and to pay a fine of Rs. 1,000/-, and in default of payment of fine, to undergo further rigorous imprisonment for six months and also to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/- under Section 498-A of the Indian Penal Code, and in default thereof to undergo further rigorous imprisonment for three months. Both the sentences were ordered to run concurrently. 2. In nut-shell, the case of the prosecution is that deceased Smt.Sunita, daughter of Manphool Singh son of Ramji Lal, resident of village Sandwa, P.S.Tosham, the complainant, was married to accused Bhupender in the month of June, 1996. He had given sufficient dowry and had incurred expenses beyond his capacity in the marriage. After staying for 5-7 days at the matrimonial home, deceased Sunita returned to her parental home. She told her parents that her husband Bhupender and Smt.Kamlesh (brothers wife of Bhupender) were not satisfied with the dowry and raised the demand of a motor-cycle. 20 days prior to the date of occurrence of this case, when accused Bhupender had taken Smt.Sunita to the matrimonial home, at that time, the complainant had made him (Bhupender) understand and also assured to give more money as per their capacity. 3. It was on 15.10.1996, at about 8.00 a.m., Mahipal, uncle of accused Bhupender, came to the house of complainant Manphool Singh and told that Sunita and Bhupender were admitted in the hospital at Bhiwani and that Sunita had died. At this, the complainant, along with his brother Ranbir and other co-villagers, reached General Hospital, Bhiwani and saw the dead body of his daughter Sunita, which was having contusions on her right eye and neck. The complainant had suspicion that his daughter Sunita deceased had been killed by accused Bhupender and Smt.Kamlesh after administering her some poisonous substance. At this, the complainant, along with his brother Ranbir and other co-villagers, reached General Hospital, Bhiwani and saw the dead body of his daughter Sunita, which was having contusions on her right eye and neck. The complainant had suspicion that his daughter Sunita deceased had been killed by accused Bhupender and Smt.Kamlesh after administering her some poisonous substance. On receipt of ruqa regarding the death of deceased Sunita and MLR of accused-appellant Bhupender on 15.10.1996, SI Ram Bilas, along with constables, reached General Hospital, Bhiwani and recorded the statement of complainant Manphool, and on its basis, a case was registered under Section 304-B/34 of the Indian Penal Code. He also prepared the inquest report, Exhibit PL/2, on the dead body of the deceased and sent the same for post- mortem examination and recorded the statements of the witnesses under Section 161 of the Code of Criminal Procedure. After completion of investigation, report under Section 173 of the Code of Criminal Procedure was prepared. 4. Accused - appellant was charge-sheeted for the offence punishable under Sections 304-B/498-A of the Indian Penal Code to which he pleaded not guilty and claimed trial. 5. In support of its case, the prosecution examined as many as nine witnesses. PW1-Manphool is the complainant in this case. He proved his statement, Exhibit PA, and also corroborated the version stated in the complaint. PW2- Smt.Manbhawati is the wife of complainant-Manphool and mother of deceased Sunita. She has corroborated the version of her husband Manphool, PW1. PW3- Kanwarpal, Draftsman prepared the scaled site plan, Exhibit PK, of the place of occurrence. PW4-Constable Naresh Kumar and PW5-Constable Sunil Kumar tendered their affidavits, Exhibits PF and PG, respectively. PW6-Dr. N.K. Chowdhary is the Medical Specialist, General Hospital, Bhiwani who along with Dr.K.K.Garg, SMO, conducted the post mortem examination on the dead body of deceased Sunita on 15.10.1996 and noticed the following injuries on her person : 1. Abrasion 1-1/2 cm x 1 cm in the left side of neck, 2-1/2 cm below lobule of left ear, brown in colour. 2. Abrasion = cm x 1/2cm and another abrasion = cm x = cm medially 3 cm from injury No. 1. 3. Bruise 1-1/2 cm x 1 cm in the middle of neck, 2-1/2 cm below the chin. 6. 2. Abrasion = cm x 1/2cm and another abrasion = cm x = cm medially 3 cm from injury No. 1. 3. Bruise 1-1/2 cm x 1 cm in the middle of neck, 2-1/2 cm below the chin. 6. PW7-Dr.KL Bawa, Medical Officer, General Hospital, Bhiwani,, medico-legally examined accused - appellant Bhupender on 15.10.1996 and found that he was irritable and not responding to questions. He further stated that Bhupender, appellant was kept under observation being suspected case of poisoning. This witness, after seeing the report of Chemical Examiner, Exhibit PE, which showed halogenated hydrocarbon compound group of insecticides, opined that appellant -Bhupender was under the effect of this poison. 7. PW8-Ishwar Singh, ASI, arrested co-accused Kamlesh in this case on 5.11.1996. 8. PW9-SI Ram Bilas is the Investigating Officer of the case. 9. Statement of the accused-appellant was recorded under Section 313 of the Code of Criminal Procedure in which he denied all the allegations of the prosecution and stated that he was living separately with his wife deceased- Sunita and neither he nor his co-accused Kamlesh ever demanded any dowry or motor-cycle from Sunita. The appellant further stated that deceased-Sunita was never mal-treated or harassed on any count by him and in fact, she had baseless doubts against him that he had illicit relations with his co-accused Kamlesh. He further stated that on the day of occurrence, deceased Sunita administered poison to him and herself also, as a result of which, they both were got admitted in the hospital and on the way to Hospital, she confessed this fact before Mahender son of Ram Parshad and Rajpal, Ex-Sarpanch and as such, the complainant-party falsely got involved him in this case. 10. Upon appreciation of evidence, the learned trial Court convicted and sentenced the accused-appellant as indicated at the outset in para 1 of this judgment. 11. Feeling aggrieved by the judgment of conviction and order of sentence, the present appeal has been filed. 12. The appeal was admitted by this Court on 23.5.2001 and the appellant was ordered to be released on bail vide order dated 18.3.2004. 13. Learned counsel for the appellant has submitted that the accused-appellant and the deceased were removed to the hospital by Mahender, DW1. He has further stated that on the way, deceased Sunita made a statement regarding the doubt of illicit relations of her husband with his sister-in-law Kamlesh. 14. 13. Learned counsel for the appellant has submitted that the accused-appellant and the deceased were removed to the hospital by Mahender, DW1. He has further stated that on the way, deceased Sunita made a statement regarding the doubt of illicit relations of her husband with his sister-in-law Kamlesh. 14. Learned counsel for the appellant has further argued that there is no evidence to the alleged demand of dowry soon before the death. He has referred to the statement of Manbhawati, PW2, mother of the deceased in this context, who has deposed that Kashmir, brother of the deceased, visited the matrimonial home of deceased Sunita and found her to be happy there. 15. Learned counsel for the appellant has further argued that legal presumption under Section 113 of the Indian Evidence Act cannot be invoked in the instant case as no harassment was caused to the deceased. He has again referred to the statement of Mabhawati, PW2, who has stated that the deceased was matriculate and used to write letter, whereas no letter has been placed on record by the prosecution. 16. Lastly, learned counsel for the appellant has argued that there is an unexplained and inordinate delay of 5/6 hours in lodging the FIR and this time was utilised by the prosecution to manufacture the evidence against the appellant. He has also submitted that the falsity of the case of the prosecution is a proved attempt to falsely implicate Kamlesh, sister-in-law of the accused-appellant, who stands acquitted by the learned trial Court. 17. On the other hand, learned counsel for the State has submitted that death of Sunita in the instant case has occurred after five months of her marriage, therefore, the appellant cannot escape from the presumption that arises under Section 113-B of the Indian Evidence Act. The death has occurred in the matrimonial home of the deceased and it is for the accused-appellant to explain as to how the death has occurred. Learned State counsel has further argued that from the statement of Dr.NK Chowdhary, PW6, who made the statement after having consultation with Dr.KK Garg in conducting post-mortem on the dead body of Sunita, it is apparent that death in the instant case was by consuming of poison, and throttling. Learned State counsel has further argued that from the statement of Dr.NK Chowdhary, PW6, who made the statement after having consultation with Dr.KK Garg in conducting post-mortem on the dead body of Sunita, it is apparent that death in the instant case was by consuming of poison, and throttling. He has further submitted that there is no delay in lodging the FIR in the instant case, and whatever the delay of five hours is there, it has been satisfactorily explained by the prosecution. He has further submitted that Mahender, DW1, has rightly been disbelieved by the learned trial Court. 18. I have heard learned counsel for the parties and perused the records. 19. There is no dispute that the marriage in the instant case took place on 6.6.1996 and the incident occurred on 15.10.1996. Thus, the death in this case has occurred within seven years of the marriage. As per the statement of Mahender, DW1, who removed the deceased-Sunita and the accused-appellant to the hospital, on the way, Sunita, disclosed to him that she administered poison to herself and to the appellant, as she suspected illicit relations between the appellant and his sister-in-law, Kamlesh. Kamlesh was also tried along with the appellant, but was acquitted by the learned trial Court. However, the statement of Mahender, DW1, has been disbelieved by the learned trial Court. The positive case of the prosecution is that there was a demand of motor-cycle, which the complainant failed to fulfil and on that account, the appellant murdered Sunita. 20. It has come in the statement of complainant that the deceased Sunita came to her parental home after 6-7 days of her stay at the matrimonial home and told him and his wife Manbhawati, PW2 that her in-laws did not appreciate the marriage and were demanding a motorcycle. It has also come in his statement that he noticed black marks on the neck of the deceased along with other injuries on the forehead above the right eye. The statement of complainant with regard to demand of motorcycle is corroborated by the statement of Manbhawati, PW2. 21. From the statement of Dr.NK Chowdhary, PW6, made in consultation with Dr.KK Garg, who conducted the post-mortem on the dead body, the cause of death, in the present case, was found to be due to poisoning and throttling. 22. The statement of complainant with regard to demand of motorcycle is corroborated by the statement of Manbhawati, PW2. 21. From the statement of Dr.NK Chowdhary, PW6, made in consultation with Dr.KK Garg, who conducted the post-mortem on the dead body, the cause of death, in the present case, was found to be due to poisoning and throttling. 22. Though, there are minor improvements in the statements of the complainant and Manbhawati, PW2, but there is consistency with regard to the demand of dowry and consequent harassment of the deceased, who died unnatural death within four months of her marriage at her matrimonial home. The description of the injuries given in the statement of the complainant, PW1, were noticed by Dr.NK Chowdhary, PW6, who conducted the post-mortem examination on the dead body of deceased which accords sanctity to the statement made by the complainant. 23. In view of the positive opinion by the Doctor that the cause of the death was by poisoning and throttling, hence, it is for the appellant to dis-prove the same. The death in the present case has occurred in the house of the appellant, the matrimonial home of the deceased. Therefore, the presumption as envisaged in Section 113 of the Indian Evidence Act comes into play against the appellant. The onus is upon the appellant to explain that the death has not taken place in the manner as projected by the prosecution. The version of the complainant is fully corroborated by the medical evidence as made out from the opinion of Dr.NK Chowdhary, PW6 made in consultation with Dr.KK Garg, who conducted the post mortem on the dead body of Sunita. Three injuries on the neck were noticed on the person of Sunita at the time of post mortem. 24. The delay of 5/6 hours has properly been explained by the prosecution, which stands discussed in detail by the learned trial Court in paras 15 to 17 of its judgment under challenge. Hence, in view of the proper reasoning given by the learned trial Judge, no further discussion is required in the matter and as such, there is no merit in the arguments of learned counsel for the appellant on this count. 25. Resultantly, I find no merit in the present appeal and the same is hereby dismissed. The impugned judgment of conviction and order of sentence passed by the learned trial Court is hereby maintained. 25. Resultantly, I find no merit in the present appeal and the same is hereby dismissed. The impugned judgment of conviction and order of sentence passed by the learned trial Court is hereby maintained. The appellant is stated to be on bail. His bail bonds shall stand forfeited and he be taken into custody forthwith for undergoing remaining part of his sentence awarded by the learned trial Court. 26. Since the main appeal is decided, misc. application(s) pending, if any, shall stand disposed of accordingly. Appeal disposed of.