Judgment:
Verma Sunil Criminal Appeal No.S. 45 SB of 2001 2014.02.25 14:34 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.S45SB of 2001. Decided on :
30. 01.2014 Deepak Kumar ... Appellant Versus State of Haryana ... Respondent 1. Whether Reporters of Local Newspapers may be allowed to see the judgment?. yes 2. To be referred to the Reporters or not?. yes 3. Whether the judgment should be reported in the Digest?. yes CORAM : HON'BLE MR. JUSTICE K. C. PURI Present : Mr. Matwinder Singh, Advocate, for the appellant. Mr. Amit Kaushik, Sr. DAG, Haryana. Mr. Manoj Bajaj, Advocate, for the complainant. K. C. PURI, J.
Accused appellant Deepak Kumar has directed the present appeal against the judgment dated 13.11.2000 and order dated 17.11.2000 passed by Sh. Darshan Singh, Additional Sessions Judge, Panchkula vide which the accused-appellant was convicted under Sections 304-B and 498- A of the IPC and sentenced to undergo imprisonment for a period of ten years under Section 304-B of the IPC and to further undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.2000/- for the offence under Section 498-A of the IPC and in default of payment of Criminal Appeal No.S. 45 SB of 2001 fine, to further undergo rigorous imprisonment for a period of six months. Both the sentences were, however, ordered to run concurrently. The trial Court, however, acquitted co-accused after giving them benefit of doubt.
2. Brief facts of the prosecution case are that Sunita, daughter of complainant Arjun Singh Verma (PW-5) was married with accused Deepak Sadha. Complainant moved an application to the SHO, Pinjore wherein it was mentioned that on 14.9.1996 at about 3.45 p.m, complainant received a telephonic message at Tohana from accused Deepak Sadha from Pinjore that his daughter Sunita is serious and he should reach immediately. Complainant along with his wife, two brothers Prithvi Singh and Bhim Singh and his son Hem Raj reached at Pinjore at about 9.20p.m. and found his daughter Sunita dead in J.N. Shori Hospital situated at Nalagarh road, Pinjore. He apprehended foul play in the sudden death of his only daughter. Complainant thought that she has been murdered by her in-laws, husband and her sister-in-law (Nanad). Name of her father-in-law is R.C. Sadha, Mrs. Nirmala Sadha is her mother-in-law. It was further mentioned that his daughter had been tortured for dowry in the past also. She was brought from Tohana by his son-in-law and his maternal uncle Rajinder Kumar. A dispute was settled at Tohana before his brothers Pirthi Singh and Bhim Singh. Complainant had sent his daughter on the clear understanding and the assurance of good behaviour in future and that there would be no demand of dowry in future. It was further alleged that all the articles of jewellery given at the time of marriage of his daughter were in the custody of her in-laws. At the time of re-settlement also, a sum of Rs.25,000/- was Criminal Appeal No.S. 45 SB of 2001 given through his brother Bhim Singh.
3. On the basis of statement of the complainant, FIR was registered under Sections 304-B and 406 read with Section 34 IPC. The investigation was conducted and challan under Section 173 of Cr.P.C was presented before the Illaqa Magistrate.
4. The copies of documents as relied upon by the prosecution were supplied to the accused free of costs as required under Section 207 Cr.P.C. As the case was exclusively triable by the Court of Session therefore, the same was committed to the Court of Session.
5. Charges under Sections 304-B, 498-A and 406 of the IPC were framed against the accused, to which they pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution examined Dr. Prem Lata, Medical Officer Community Centre Kalka as PW-1, Ram Saran Draftsman as PW-2, Rajbir Singh Constable as PW-3, Ram Sarup as PW-4, Arjun Singh Verma as PW-5, Bhim Singh as PW-6, Rai Singh as PW-7, Rakesh Kumar as PW-8, C.P. Leekha, Advocate as PW-9, Budh Ram as PW- 10, Fateh Singh ASI as PW-11, Kewal Krishan ASI as PW-12 and closed its evidence.
7. The accused were examined under Section 313 Cr.P.C. and all the incriminating evidence was put to the accused to which they denied and pleaded false implication. In their defence evidence, the accused examined Dr. Shori as DW-1, Bimla as DW-2, Manjit Kaur as DW-3, Dr. Inderjit Dewan as DW-4, Sandeep Sharma as DW-5, Sunil Dutt as DW-6 and Criminal Appeal No.S. 45 SB of 2001 closed their evidence.
8. The trial Court, after hearing the learned counsel for both the parties convicted and sentenced the accused vide judgment dated 13.11.2000 and and order dated 17.11.2000 as aforesaid.
9. Feeling dissatisfied with the aforesaid judgment and order, the accused has directed the present appeal.
10. I have heard learned counsel for the parties and have gone through the record carefully.
11. Learned counsel for the appellant has submitted that in order to prove the ingredients of offence under Section 304-B, IPC, the prosecution has to prove the following ingredients :- (i) That the death of a woman has taken place by burns or bodily injury or otherwise than under a normal circumstances. (ii) Said death has occurred within seven years of her marriage. (iii) Soon before her death that woman was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry.
12. It is contended that the prosecution has been able to prove only to the extent that death has taken place within seven years of the marriage and other two ingredients of offence under Section 304-B, of the IPC, referred to above, are not proved. It is submitted that death has taken place due to unnatural manner is not proved. It is submitted that Sunita was first taken to Dr. Anil Shori ( DW-1). This witness has categorically stated that Sunita was brought to him in convulsion status i.e. gasping with status Criminal Appeal No.S. 45 SB of 2001 epileptics and he could not find any poisonous substance. Mere fact that in various part of the body that is stomach, small and large intestines, liver, lung and kidney aluminum phosphide was detected, that does not prove the fact that Sunita was subjected to administration of aluminum phosphide.
13. DW-2 Bimla, neighbour has also stated that deceased Sunita had fit of epilepsy.
14. Three members Board of Doctors was constituted to conduct the postmortem examination on the dead body of Sunita. The said Board deferred the opinion regarding cause of death till the receipt of report from the Chemical Examiner. Report of Chemical Examiner was never shown to the Board of Doctors and Dr. Prem Lata, one of the members of the Board, for the first time in examination-in-chief has given opinion that cause of death was due to poisoning. The said Doctor was shown three books on Medical Jurisprudence written by Modi, Poarikh and Cox, and she admitted that none of the post mortem symptons mentioned in the post mortem report relates to aluminum phosphide poisoning. The accused have the courage to examine Dr. Inderjit Dewan DW-4, Professor of Anatomy and Forensic Medicines, PGI, Chandigarh. This doctor had opined that post mortem report does not show the fact that Sunita died due to aluminum phosphide poisoning. This doctor has further stated that on perusal of post mortem report Ex.PA , there is nothing to indicate that deceased died because of aluminum phosphide poisoning. He has also stated that the chemical examination report Ex.PB was not infallible or sacrosanct. He has further stated that status epilepticus is a condition when the patient Criminal Appeal No.S. 45 SB of 2001 experiences repeated attacks of epilepsy without regaining consciousness. He further stated that status epilepticus can occur in a patient without any history of epilepsy and that mortality rate in the cases of status epilepticus could be as high as 50%. So, it is submitted that prosecution has failed to prove the fact that Sunita died due to aluminum phosphide poisoning.
15. I have considered the said submission but do not find any merit in the said submission.
16. Dr. Prem Lata is the best person who can tell about the cause of death in respect of Sunita deceased. This witness, after carefully examining the report of Chemical Examiner Ex.PB, has categorically given an opinion that Sunita died due to aluminum phosphide poisoning. According to the report of Chemical Examiner Ex.PB, aluminum phosphide was detected in stomach, small and large intestines, liver, lung and kidney of Sunita were sent for analysis. Phosphide was also detected in the blood of Sunita sent for analysis. It is not the case of accused at any stage of the trial that sample of stomach small and large intestines, liver, lung, kidney and blood was tampered with. The presence of aluminum phosphide in all major limbs including blood was found. So far as the testimony of Dr.Anil Shori DW-1 that he had not seen the report of Chemical examiner but he could depose only after the examining the postmortem report of the patient. Moreover, the learned trial Court has rightly held that this doctor has meticulously treated Sunita deceased. Without the report of the Chemical Examiner, even the Board of Doctors Criminal Appeal No.S. 45 SB of 2001 has not given any opinion regarding the cause of death. So, the arguments advanced by the counsel for the appellant that report of the Chemical Examiner Ex.PB was not infallible or sacrosanct, is not helpful to appellant as there is nothing on record that said report is in any way wrong. Dr. Inderjit Dewan DW-4 has simply narrated about the clinical examination in respect of the deceased. This doctor has not conducted the post mortem nor Sunita deceased was brought before him at any time. Without conducting post mortem examination, he cannot draw any opinion regarding cause of the death by simply going through postmortem report. The learned trial Court has rightly held that there was no previous history of Sunita suffering from epilepsy.
17. DW-2 Bimla is neighbour of accused/appellant and as such she seems to be interested in the accused. The appellant has failed to prove that under what circumstances aluminum phosphide was found in all major limbs of Sunita deceased sent for chemical examination including the blood.
18. Similarly DW-3 Manjit Kaur has also come forward being neighbour and the learned trial court has rightly discarded the testimony of DW-2 Bimla and DW-3 Manjit Kaur.
19. So, I have no hesitation in holding that prosecution has been able to prove the second ingredient of offence, narrated above, that death has taken place within seven years of the marriage in an unnatural manner as aluminum phosphide poisoning was found in the body of the deceased.
20. Learned counsel for the appellant has further submitted that the case of the prosecution was unfolded by complainant Arjun Singh PW-5. Criminal Appeal No.S. 45 SB of 2001 He has stated that deceased was married with appellant in the year 1993 and in October 1994, a daughter was born out of the wedlock. This witness has further stated that all the accused except Rajinder Verma (mama of the appellant) used to demand dowry from the deceased. Rs.1,50,000/- were spent on the marriage. Mother-in-law Nirmala used to taunt in respect of television. The allegations against sister-in-law and other accused were also made regarding demand of dowry but the learned trial Court has disbelieved the story of the prosecution in respect of all other accused except the appellant. Mere fact that appellant is the husband of the deceased is not a ground to convict him in respect of offence under Section 304-B of the IPC on the same set of evidence. The prosecution has not been able to prove the 3rd ingredient of offence that deceased was subjected to cruelty in respect of demand of dowry articles soon before her death. The prosecution has relied upon alleged letters Ex.PH and PJ but the trial Court has not believed all those documents as the original thereof have not been produced. In fact the appellant has informed the complainant about the serious condition of Sunita due to epilepsy. It is alleged that Arjun Singh PW-5 during his cross- examination has admitted that in the month of March/April 1996, appellant Deepak along with one Rajinder had gone to the house of his in-laws to bring her back but he has not sent the deceased with them because nobody was there to assure them regarding good behaviour. He has further admitted that Deepak and Rajinder had stayed there at night at the house of the complainant. Arjun Singh PW-5 has concealed the material facts that in the month of March/April 1996 that appellant Deepak along with one Nihal Criminal Appeal No.S. 45 SB of 2001 Chand had gone to the parental house of the deceased to bring her back from the parental house and second thing with held by PW-5 Arjun Singh is in respect of meeting at Kurali in May 1996 where Panchayat was held to resolve the dispute. These meetings have been only admitted by him during the cross-examination. The demand of Rs.25,000/- by Deepak appellant is not proved. It was appellant Deepak, who had brought deceased from her parental house to her matrimonial house. In fact Sunita was the only daughter of Arjun Singh. She lived at her parental house for prolong period i.e. 2-3 months in the year 1994 in connection with B.A. Examination i.e., from March 1994 to June 1994. Thereafter she also remained in the house of her parents from September 1994 to January 1995 on account of birth of daughter. Even thereafter she remained at the parental house from 1.7.1995 to May 1996. So, it is submitted that out of 34 months of the marriage, she remained at her parental house about ten months prior to 1.7.1995 when deceased was taken to her parental house. Arjun Singh PW-5 had admitted that he has suggested appellant to shift to Chandigarh being employed in Punjab and Haryana High Court as Clerk in November 1994. The complainant has admitted letter dated 16.5.1994 Ex.DB written by deceased. The writing of said letter clearly shows that she had most affectionate relation with her in-laws family. It is submitted that prosecution has failed to prove that soon before death deceased was subjected to cruelty in connection with demand of dowry articles. There is no allegation of demand of dowry articles between 1.7.1995 to 14.2.1996 i.e., for fourteen months. The telephone was installed in the house of accused in Pinjore in Criminal Appeal No.S. 45 SB of 2001 the year 1996. Complainant had admitted one mobile talk took place between the complainant and Deepak. The complainant has further admitted that his two sons are residing at Chandigarh who had visited the deceased at her in-laws house at Panjore once or twice in a year. He has further stated that on 28.8.1996 his son Prem Sagar had gone to Pinjore with his wife on the occasion of Rakhi.
21. Counsel for the appellant has also argued about the acceptance of letters Ex.PH and PJ into evidence but those arguments are not material as the learned trial Court itself has not admitted documents Ex.PH and Ex.PJ in evidence.
22. Learned counsel for the appellant has submitted that accused remained in custody for 4years, 4months and 1day. On 14.9.1996 daughter of the deceased was approximately 2 years old, who is presently at the age of 18 years and ten months. The appellant had been maintaining the daughter of the deceased after release on bail in 2001. The appellant got re- married in 2002 with a girl, who was the sister-law of the appellant's paternal uncle (Chacha). It was the second marriage for the appellant and the 4th marriage for the said lady. The marriage collapsed within four months. A son was born from the wedlock. No criminal case was registered in connection with the second marriage of the appellant. However, the appellant had to file two criminal complaints and a petition under Hindu Marriage Act in connection with the fraud and defamation committed against him and his family and the said marriage was annulled by the Family Court, Rohini, Delhi in December 2011 in pursuance of a settlement. The Criminal Appeal No.S. 45 SB of 2001 son remained in custody of Ms. Lata. His old parents are residing at Pinjore and his daughter who is studying in Bachelor of Physio-therapy. So, prayer has been made for acquittal of the accused and in the alternative prayer has been made for taking lenient view regarding quantum of sentence.
23. Learned counsel for the appellant has relied upon the following authorities :- 1. Harjit Singh versus State of Punjab reported in 2006 (1) RCR (Criminal) page 133 ; 2. State of Haryana vs. Rajbati and others reported in 2002 (3) RCR Criminal page 743 3. Om Parkash vs. State of Haryana reported in 2004 (3) RCR (Criminal) page 508 ; 4. Rajbabu and another vs. State of MP reported in 2008 (3) RCR (Criminal) page 890 ; and 5. H. Shankar vs. State of A.P. Reported in 1994 (3) Crimes 605.
24. The learned State counsel as well as counsel for the complainant have supported the judgment and order of the trial Court and opposed the prayer of the learned counsel for the accused-appellant.
25. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case with their able assistance.
26. So far as the arguments advanced by the counsel for the appellant that 3rd ingredient of offence that deceased Sunita died on account of demand of dowry articles at the hands of appellant is not proved, is concerned, that argument is meritless. The prosecution has been able to prove the said ingredient of offence beyond reasonable doubt. It cannot Criminal Appeal No.S. 45 SB of 2001 be said that Sunita being the only daughter was taking liberty. The very fact that she remained with the accused goes a long way to prove that deceased was aggrieved against the conduct of appellant in demanding the dowry articles. Arjun Singh (PW-5) has specifically stated that accused demanded scooter. He has further stated that on 1.7.1995 Sunita was maltreated and he brought her to her parental house. Soon before death she was residing at the house of appellant. Arjun Singh (PW-5) has stated that on demand he paid an amount of Rs.25,000/- with the assurance that no amount in the future would be demanded. Sunita died in the house of appellant. He has to explain under what circumstances a young lady has committed suicide. The unnatural death stands proved beyond reasonable doubt while living in the matrimonial house. Bhim Singh (PW-6) has corroborated the version given by Arjun Singh on all material particulars. Dr. Prem Lata (PW-1) has categorically stated that there was two injuries on the dead body of Sunita. There was submocous hameorrhage at muco cutaneous junction of both upper and lower lips, which proved the factum of possibility of administration of poisonous substance. Blackish red contusion 4 x 2cm over lateral surface of middle of left thigh was also present. Those injuries have not been explained by the accused/appellant. Letter Ex.DB is not a ground to disprove the above said 3rd ingredient of offence. The other point argued against the 3rd ingredient of offence does not disprove the said ingredient of offence.
27. So far as authority Harjit Singh's case (supra) is concerned in that authority no incident of cruelty or harassment for a period of three Criminal Appeal No.S. 45 SB of 2001 months prior to death was proved and on that account the Hon'ble the Apex Court held that offence under Section 304-B, of the IPC is not made out and offence under Section 306 of the IPC is made out. So, that authority is distinguishable to the facts of the present case as there are many instances of demand of dowry articles even soon before death in the present case.
28. So far as authority State of Haryana vs. Rajbati and others' is concerned that case relates to an appeal preferred by the State in respect of acquittal of the accused under Section 304-B, of the IPC. In that case ingredients of offence under Section 304-B of the IPC were not complete and on that account the acquittal was upheld.
29. Authority Om Parkash's case (supra) is also distinguishable as in that case there were only general demand of dowry articles and there was no instance of demand of dowry, soon before her death.
30. Authority Rajbabu's case (supra) relates to acquittal of mother-in-law where there is no specific demand of dowry articles by her.
31. So far as authority H. Shankar's case ( supra ) is concerned, that relates to proving of the demand. However, the letters relied upon by the prosecution have not been believed by the trial Court. So, the above said authority is not relevant for the just decision of the present case. The other co-accused had been acquitted as there were no specific allegations of demand of dowry against them.
32. So, in view of the above discussion, the conviction recorded under Section 304-B of the IPC stands affirmed.
33. Now reverting to the quantum of sentence. Criminal Appeal No.S. 45 SB of 2001 34. Appellant has submitted that he has 18 years old daughter to look after. Otherwise also occurrence relates to more than thirteen years back. So, in these circumstances, the sentence of the appellant stands reduced to seven years instead of ten years as awarded by the trial Court.
35. With the modification the sentence, the appeal stands disposed of accordingly.
36. The accused/appellant is stated to be on bail. He be taken into custody to undergo the remaining part of the sentence.
37. A copy of this order be conveyed to the trial Court for strict compliance. ( K. C. PURI ) January 30 , 2014 JUDGE sv