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2013 DIGILAW 730 (PNJ)

Gulab Singh v. State of Haryana

2013-05-28

JITENDRA CHAUHAN

body2013
JUDGMENT : Jitendra Chauhan, J. The present appeal has been preferred by appellant, Gulab Singh, challenging the judgment and order dated 01.09.2009/04.09.2009, passed by learned Additional Sessions Judge, Karnal, (hereinafter as 'the trial Court'), convicting and sentencing the accused-appellant as under:- However, both the sentences were ordered to run concurrently. 2. The brief facts of the case in hand, as recorded by the learned trial Court stand reflected in the opening para of the impugned judgment, are being reproduced herein under:- Case of the prosecution is that on 13.11.2008, when Inspector/SHO Harbans Lal was present with staff in village Garhi Birbal in connection with investigation of case vide FIR No. 176 of 2008, u/s 24-A, 435 IPC, MHC Umed Singh informed through VT message that Reeta wife of Gulab Singh, Caste Harijan, resident of Dhanoura Jagir, age 21 years was admitted in CHC Ladwa with burn injuries, upon which SI Bhim Singh and C. Pawan Kumar were sent to CHC Ladwa, Inspector Harbans Lal and others went back to Police Station Ladwa where they met Bhim Singh SI who made over ruqa and MLR of Reeta alongwith an application seeking opinion of doctor for recording statement of Reeta hand written by Puran Mal, SI, P.S. Ladwa, attested by Dr. H.S. Saini, M.O. Ladwa. Statement of Reeta was recorded to the effect that she was resident of village Dhanora and was a labourer. She was married eight months ago with Gulab Singh son of Sant Ram, caste Harijan according to Hindu rites and ceremonies. In the marriage, her parents had given sufficient dowry as per their means, but her husband Gulab did not treat her well. She wanted to talk with her family members on telephone, but he did not allow her to talk with her parents and use to give her beatings. That day, at about 9.30 a.m., she was present in her house. Her husband Gulab was also present. She told him that her family members were coming the next day for milni and she wanted to talk to them on telephone. Her husband replied that he did not want to keep her and would not allow her to talk with her parents. Thereafter, he poured kerosene oil on her and set her on fire. When she raised cries, villagers arrived and removed her to CHC Ladwa. It was requested that legal action be taken against her husband. 3. Her husband replied that he did not want to keep her and would not allow her to talk with her parents. Thereafter, he poured kerosene oil on her and set her on fire. When she raised cries, villagers arrived and removed her to CHC Ladwa. It was requested that legal action be taken against her husband. 3. After the death of the victim on 14.11.2008, offence u/s 302 IPC was added. Subsequently, after recording of statement of Jeeta Ram, father of the deceased, offence u/s 302 IPC was deleted and offence u/s 304-B IPC was added. 4. In this background, charges under Sections 498-A, 304-B, and alternate charge u/s 302 IPC, was also framed against the accused-appellant. 5. In order to substantiate its case, the prosecution examined following 14 witnesses. PW-1, Virshakti Singh, Draftsman, prepared scaled map, Ex. P1, at the instance of Inspector Harbans Lal. PW-2, Dr. Hari Singh, Medical Officer, CHC, Ladwa, tendered in evidence his affidavit, Ex. P-2, stating that he admitted that deceased in the hospital with history of burns. PW-3, SI Ishwar Chander, conducted proceedings u/s 174 Cr.P.C. PW-4, Dr. Munish Wadhawan, Sr. Resident, Department of Forensic Medicines, PGI-MER, Chandigarh, tendered his affidavit, Ex. P-15, who conducted postmortem examination on the dead-body of the deceased, and proved that the cause of death of the deceased was as a result of 97% burns. PW-5, C. Shamsher Singh, tendered his affidavit, Ex. P-17. PW-6, H.C. Balwant Singh, tendered his affidavit, Ex. P-18. PW-7, SI Bhim Singh, visited the place of occurrence on 13.11.2008, and partially investigated the case. PW-8, Vijay Kumar son of Jeet Ram, who is brother of the deceased, collected the dead-body of his sister after postmortem examination. PW-9, Jeet Ram son of Kapuria, is the father of the deceased and narrated about the demand of papers of motorcycle, Rs. 50,000/- and also proved the recovery memo, Ex. P-14. PW-10, SI Puran Mal, recorded the statement, Ex. PB, of deceased, Reeta. PW-11, ASI Raghbir Singh, collected the hair of deceased, Reeta, which were taken into police possession. PW-12, C. Narender Kumar, delivered special reports to the higher officers. PW-13, Om Parkash son of Chuhra Ram, is a photographer, who photographed the place of occurrence. PW-14, Inspector/SHO Harbans Lal, is the Investigating Officer, who on completion of investigation, presented a report u/s 173 Cr.P.C. in the Court. PWs Dr. PW-12, C. Narender Kumar, delivered special reports to the higher officers. PW-13, Om Parkash son of Chuhra Ram, is a photographer, who photographed the place of occurrence. PW-14, Inspector/SHO Harbans Lal, is the Investigating Officer, who on completion of investigation, presented a report u/s 173 Cr.P.C. in the Court. PWs Dr. SP Mandal, Manoj Kumar, Ramji Lal Lambardar, Director FSL Madhuban, FTC Jagdish Kumar and Dr. Survirmal, were given up as unnecessary. 6. In his statement u/s 313 Cr.P.C., the accused appellant denied all the allegations of the prosecution case and pleaded false implication. It was stated that prior to the marriage in question, a Panchayat was convened as deceased, Reeta, was not happy with the marriage. Mahender Singh, Rishi Pal, Neki Ram, Jagir and Sham Lai, were also present in the said Panchayat. It was only after the intervention of the Panchayat, that the marriage was solemnized. He further stated that he was not present at his residence at the time of occurrence as he was working in the agricultural field of Rameshwar son of Bishna Ram. His sister-in-law, Reena, who was present at the time of occurrence, tried to save the deceased. In his defence, the accused examined Rameshwar son of Bishna Ram as DW 1; Shyam Lal, Ex. Sarpanch son of Kalu Ram as DW 2; Babli alias Surender son of Mam Ram as DW 3; Hardayal son of Ram Kishan as DW 4; Reena wife of Karan Singh as DW 5; Mahender Singh son of Sadhu Singh as DW 6; and Jai Bhagwan son of Sardha Ram as DW 7. 7. The learned trial Court, after hearing both the parties, framed the following three points for determination:- 1. Whether on 13.11.2008 in the area of village Dhanora Jagir, accused committed murder of Reeta by intentionally causing her death? 2. Whether from the period 5.11.2008 to 13.11.2009 in the area of village Dhanora Jagir, accused being husband of Reeta subjected her to cruelty with a view to coerce her and her parents to meet his unlawful demand for dowry? 3. Whether on 13.11.2008 in the area of village Dhanora Jagir accused caused death of Reeta by burns within seven years of her marriage and soon before her death subjected her to cruelty, in connection with dowry demand? 8. 3. Whether on 13.11.2008 in the area of village Dhanora Jagir accused caused death of Reeta by burns within seven years of her marriage and soon before her death subjected her to cruelty, in connection with dowry demand? 8. Learned counsel for the appellant states that the prosecution has miserably failed to prove the ingredients of Section 304-B IPC and Section 498-A IPC, as there is nothing on record to establish that the deceased was subjected to cruelty and harassment, for or in connection with demand of dowry, soon before death. There is no mention of demand of dowry in the statement of PW-9, Jeet Ram, recorded on 17.11.2008, by the Police u/s 161 Cr.P.C. However, he improved his version while deposing before the Court, wherein, it is stated that the accused was demanding motorcycle papers whereas his father Sant Singh raised a demand of 50,000/-. PW-8, Vijay Kumar, brother of the deceased, did not state in his examination in chief or made any allegation of any demand of dowry or cruelty. 9. The learned counsel further contends that the learned trial Court erred in disbelieving the version of defence witnesses to the effect that the accused-appellant was not present at home, when the alleged occurrence took place. He refers to the statement of DW-5, Reena, sister-in-law (bhabhi), who stated that she was married in the family for the last 4 years and neither she, nor the deceased was ever harassed by any member of the family of the accused She has also stated that the accused was not present at home, rather he was working in the fields, away from home. 10. The learned counsel further contends that the learned trial Court failed to appreciate the fact that 10 days prior to the marriage, a Panchayat was convened on the asking of PW-9, Jeet Ram, at Village Sarakpur, at the parental home of the deceased, wherein, the deceased was persuaded to marry the accused. 11. The learned counsel lastly contends that the alleged dying declaration, Ex. P-8, which is the very basis of the present case, has already been discarded by the trial Court, therefore, the impugned judgment and order passed the trial Court, deserve to the set aside. 12. On the other hand, learned counsel for the State has argued that the case of the prosecution is proved beyond doubt. P-8, which is the very basis of the present case, has already been discarded by the trial Court, therefore, the impugned judgment and order passed the trial Court, deserve to the set aside. 12. On the other hand, learned counsel for the State has argued that the case of the prosecution is proved beyond doubt. There is sufficient material on record to establish that the appellant is the perpetrator of the crime in the instant case. 13. I have heard learned counsel for the parties and perused the record with their able guidance. Sections 304B and Section 498A read as follows: 304B. Dowry death. - (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death. Explanation. - For the purposes of this subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but Which may extend to imprisonment for life. 498A. Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. - For the purposes of this section, "cruelty" means- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. 14. 14. Admittedly, the marriage in the instant case was solemnized on 05.11.2008. The incident in question took place on 13.11.2008, whereas, the deceased died on 14.11.2008. FIR, Ex. P-9, was recorded on 13.11.2008, on the basis of dying declaration, Ex. P-8 (wrongly reflected in the opening para that marriage took place eight months ago). 15. In order to bring the accused under the parameters of offence u/s 304-B IPC, the essential ingredients of the Section are required to be proved. It is mandatory for the prosecution agency to establish two things. Firstly, that the unnatural death took place within seven years of the marriage and secondly, soon before her death, the victim was subjected to cruelty and harassment for or in connection with any demand for dowry. 16. In this case, the demand of dowry, soon before death is not proved on record. To prove the demand of dowry, the prosecution has examined, PW-9, Jeet Ram, father of the deceased, who has stated that on 13.11.2008, accused-Gulab Singh, asked him (PW-9), to bring three things, i.e. registration papers of the motorcycle, an inverter and his father asked him to bring Rs. 50,000/-, on the next day. His daughter also spoke to her over telephone on that very day. This witness has made substantial and material improvements in his statement in Court as compared to his earlier statement dated 17.11.2008, recorded u/s 161 Cr.P.C. by the Police. In his statement u/s 161 Cr.P.C., this witness did not mention anything about the alleged demand of papers of motorcycle and about demand of Rs. 50,000/-, whereas, he did mention about the demand of an inverter. 17. The statement of this witness suffers from material improvements, which cannot be believed because there was no mention of any demand of papers of motorcycle and 50,000/- in his statement u/s 161 Cr.P.C. Moreover, except PW-7, there is no other witness to prove the alleged demand of dowry. Even the brother of the deceased, i.e. PW-8, Vijay Kumar, leveled no allegation against the accused about the demand of dowry. Only the allegation of demand of inverter remains. There is no assertion by the prosecution that the demand was repeatedly pressed and not meeting thereof would enrage the appellant to the extent that he would set his wife on fire. Only the allegation of demand of inverter remains. There is no assertion by the prosecution that the demand was repeatedly pressed and not meeting thereof would enrage the appellant to the extent that he would set his wife on fire. Nowadays, inverters are available in the houses of poor strata of the society because it is a necessity due to shortage of electric power. It is a fact that the companies dealing in this business supply the inverters on easy installments. Even if for the sake of arguments, the statement of this witness is accepted qua the demand of inverter, it is improbable to hold that the accused would kill his wife for such a small demand. Secondly, the demand of inverter gets further nullified after going through the dying declaration of the girl, Ex. P-8, and the FIR, Ex. P-9, because there is not even a whisper about it. It is worthwhile to mention here that even if the dying declaration, Ex. P-8, is accepted, it would become clear that the only allegation made by the deceased-wife against her husband-appellant is that her husband never allowed her to talk to her parents and that he put kerosene oil upon her body and set her ablaze. Therefore, it becomes crystal clear that the deceased had made no allegation of dowry against her husband or any of his family members. Even the allegations leveled by her father with regard to demand of motorcycle papers, Rs. 50,000/- and of inverter do not stand on their own legs. The marriage existed only for seven days. The ceremonial rituals were still going on. It has come in the statement, Ex. P-8, of the deceased, that her parents were to come to her in-laws' house for 'milni' with the family members of the accused. It is not believable that in such short span of time, the husband or his family members would treat the bride with such extreme cruelty for the sake of inverter. 18. It is the golden principle of criminal jurisprudence that if there are two versions, one proved by the prosecution and the other proved by the defence, the Court has to see as to which of the versions, out of the two, is more truthful, probable and believable. 18. It is the golden principle of criminal jurisprudence that if there are two versions, one proved by the prosecution and the other proved by the defence, the Court has to see as to which of the versions, out of the two, is more truthful, probable and believable. If the version put forward by the accused appears more probable than the prosecution version, the Court will choose to believe and adopt the defence version. In this case, after evaluating both the versions, this Court comes to the conclusion that the defence version is more probable than the prosecution version for which the benefit has to go to the accused. DW-5, Reena, who had been the sole eyewitness of the entire incident, had stated that she is the sister-in-law of the accused appellant and was married in the family about four years ago. She had no grievance against the appellant's family as there was no trouble in the family about any demand of dowry from her or the deceased. This witness further proved that at the time of alleged occurrence, the accused was not present in the house, rather he was working in the fields of his employer. When she heard the cries of the deceased and saw her on fire, DW-7, Jai Bhagwan; DW-4, Hardial; and DW-3, Babli; reached at the spot and tried to rescue the deceased. The trial Court had erred in not believing this witness only on the sole ground that this witness was closely related to the accused-appellant. The presence of this witness at the house being a family member is natural. The testimony of this witness cannot be discarded simply on the ground that he or she relates to the party in whose favour, he or she is deposing, especially, when his or her evidence is found to be credible. This Court, after scrutinizing the defence evidence, considers this witness as truthful witness. Moreover, as the dying declaration stands disbelieved, it is not established that the appellant was present at the time of occurrence. 19. The cause of suicide of the deceased has been brought on record by the accused, by producing cogent and reliable evidence. It has been brought on record that the deceased was in fact unwilling to marry the accused-appellant. Moreover, as the dying declaration stands disbelieved, it is not established that the appellant was present at the time of occurrence. 19. The cause of suicide of the deceased has been brought on record by the accused, by producing cogent and reliable evidence. It has been brought on record that the deceased was in fact unwilling to marry the accused-appellant. Even, ten days prior to the date of marriage, a Panchayat was convened at the asking of PW-9, Jeet Ram, at his village, in order to persuade the deceased to marry the accused appellant. DW-2, Shyam Lal and DW-6, Mahender Singh-Mediator, along with other persons attended the Panchayat meeting. DW-6, Mahender Singh, is a go between, whose testimony cannot be brushed aside, being a neutral party. It is also important to note that the deceased was taken to hospital by DW-5, Reena; and DW-3, Babli; whose name also finds mention in the M.L.R. At the column of 'brought by'. The mediator in the marriage of the deceased as well as that of DW-5, Reena, was the same. This witness has close relations with both the families. So, the testimony of this witness is reliable and trustworthy. The reason for refusal of the deceased to marry the accused-appellant is kept concealed by both the families for the reasons best known to them. It appears that she was upset after having been married with the accused without her consent and thus, decided to end her life. Therefore, this Court is of the considered opinion that the accused-appellant has successfully rebutted the presumption under the Evidence Act. No case of dowry death or abetment is made out. The demand of dowry allegedly raised by Sant Singh, the father of the appellant-Gulab Singh, against whom, no challan has been presented by the prosecution for want of any incriminating evidence against him. 20. Resultantly, from the cumulative circumstances, it can be safely concluded that the prosecution has miserably failed to establish any cruelty or harassment on account of demand of dowry, whereas the admitted factum of absence of accused from the place of occurrence at the time of incident and the factum of Panchayat being convened in order to persuade the deceased for marriage, have been wrongly discarded by the learned trial Court. In view of the foregoing discussion, the present appeal is allowed; the judgment and order dated 01/04.09.2009, passed by the Additional Sessions Judge, Karnal, is set aside; and accused-appellant, Gulab Singh, is acquitted of the charge. The appellant be set at liberty, if not required in any other case.