Full Judgment
CRA-S-1161-SB of 2013 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-S-1161-SB of 2013 (O&M) Date of Decision : December 23, 2014 Deepak Sharma ....Appellant versus The State of Punjab ....Respondent CORAM: HON'BLE MRS.JUSTICE RAJ RAHUL GARG1 Whether Reporters of local papers may be allowed to see the judgment?.
2.
To be referred to the Reporters or not?.
Whether the judgment should be reported in the Digest?.
Argued by :Mr.L.M.Gulati, Advocate for the appellant.
Ms.Minakshi Goyal, AAG, Punjab.
RAJ RAHUL GARG, J This is an appeal directed against the judgment of conviction dated 21.03.2013 rendered by Ms.Neelam Arora, the then Additional Sessions Judge, Amritsar, vide which appellant-Deepak Sharma was held guilty for committing offence punishable under Section 304 B IPC.
In this case, alternative charge for committing offence under Section 302 IPC was also framed.
Learned trial Court did not find any reason to hold appellant guilty of offence under Section 302 IPC vide order of even date.
Appellant was ordered to undergo RI for 10 years and to pay a fine of `10,000/- and in default of payment of fine to further undergo RI for 2 months for committing offence under Section 304B IPC.
The brief facts of the case are like this : that Sunita Kumari SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -2- whose name was changed to Aarti Sharma by her in-laws after marriage; is the victim of this case.
The FIR of this case was lodged by father Jagdish Raj S/o Sadhu Ram vide Exhibit P-1.
As per Jagdish Raj, he is a labourer and he has five daughters and a son.
Sunita-deceased was the youngest daughter aged about 22-23 yeaRs.Her marriage was performed with appellant-Deepak Sharma on 15.07.2009.
As per complainant, he gave sufficient dowry and cash in the marriage.
Many times his daughter came to him and told that her husband-Deepak Sharma had been demanding more dowry and motorcycle from her.
At this, he had given 2/3 times cash to her daughter and then she used to live at her matrimonial home.
Even then the appellant had been giving beatings to her and had been demanding dowry from her.
Many times Ram Lubhaya (his sister-in-law's husband) had tried to bring round appellant but remained in effective.
As per complainant on 08.05.2010, he received telephonically call from Rajiv Kumar S/o Ram Lubhaya to the effect that Sunita Kumari was lying admitted in the emergency ward of Guru Nanak Dev Hospital as she had received burnt injuries.
In pursuance with the aforesaid phone call, he and his wife Rakesh Rani reached aforesaid hospital and found Sunita Kumari in a burnt condition.
She was lying unconscious but after some time she expired.
At this, he expressed that Sunita Kumari was burnt by her husband-Deepak Sharma.
The aforesaid statement of Jagdish Raj was recorded by ASI Karamjit Singh at Guru Nanak Hospital, Amritsar.
After recording the statement he read over the same to Jagdish PW-1 and he signed the same.
It was attested by ASI Karamjit Singh as Ex.PW10/1.
He made endorsement Ex.PW10/2 and sent Ruqa to police Station for SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -3- registration of FIR, whereby formal FIR Ex.PW10/3 was registered by SI Daljeet Singh.
Inquest report Ex.PW10/4 was prepared.
Statements of witnesses were recorded.
Dead body of Sunita Kumari was handed over to HC Daljinder Singh and HC Jagjit Singh vide application Ex.
PW9A who got conducted the postmortem examination of dead body, on the next day.
On 08.05.2010, Investigating Officer had gone to the place of occurrence and prepared rough site plan Ex.
PW105.
After postmortem, dead body was handed over to Jagdish father of deceased vide receipt Ex.
PW106.
On 24.05.2010, appellant-Deepak Sharma was arrested.
Intimation regarding arrest was given to his father Kasturi Lal.
Intimation is Ex.P-6.
On interrogation of accused, he gave disclosure statement to the effect that he kept concealed can plastic which was used for pouring kerosene oil on Aarti Sharma @ Sunita Kumari about which he alone knew and can get the same recovered.
This disclosure statement was exhibited as Ex.P-3.
In pursuance of this disclosure statement accused led the police party to the pointed place and got recovered 5 litres can plastic white colour which was smelling of kerosene oil, from the disclosed place and the same was taken into police possession vide memo Ex.P-4.
This can plastic is MO-1.
Site plan of the place of recovery was prepared as Ex.PW-10/7.
Personal search memo is Ex.P5.
From the personal search of the accused `45 currency notes was recovered.
Case property was deposited with MHC.
Statement of Gyani Tarlok Singh who performed the marriage of Aarti Sharma @ Sunita Kumari was also recorded.
He gave receipt of marriage as Ex.PW6/A, photographs of marriage Ex.10/8 to 10/12 were also taken into police possession.
SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -4- After completion of investigation challan was presented in the Court against the appellant.
Accused was charge sheeted for committing offences punishable under Sections 304-B and in the alternative under Section 302 IPC to which accused did not plead guilty but claimed trial and, thereafter, prosecution evidence was recorded.
Jagdish Raj, father of the deceased was examined as PW-1.
His wife Rakesh Rani was examined as PW-2 and Ram Lubhaya as PW-3.
They are the witnesses on the point of harassment of deceased for dowry.
Head Constable Jorawer Singh was examined as PW-4.
He is the witness of the disclosure statement of accused, in pursuance of which he got recovered plastic can from the disclosed place vide recovery memo Ex.P-4.
Tarlok Singh (PW-6) was examined, to prove the marriage of deceased with the accused.
He is Granthi in Gurdwara Pipli Sahib, Amritsar.
Dr.
Gurmanjit Rai, Addl.
Professor and Head Forensic Medicine Department, Govt.
Medical College, Amritsar, was examined as PW-5.
He proved the post-mortem report Ex.PW-5/A, of the deceased and also proved the skiagram Ex.PW-5/B showing the seat of injuries on the person of the deceased.
ASI Karamjit Singh, Investigating Officer of the case appeared as PW-10.
Besides these witnesses, prosecution examined other formal witnesses as well who participated in the conduct of investigation.
Statement of accused under Section 313 Cr.P.C was recorded wherein accused denied each allegation of the prosecution and pleaded his innocence.
Accused took the defence, which reads as under:- “ I am innocent and have been falsely implicated in the SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -5- present case.
It was simple marriage and no gifts were exchanged/given at the time of marriage.
Sunita Kumari had only stayed 4/5 days in our house after her marriage with me and thereafter she had gone to her parental village at her own after quarreling with me.
She had come to our house on the day of occurrence alongwith her father and Ram Lubhaya and she was left in our house.
I asked her that she should not conceal the facts of her earlier marriage and she got annoyed on that account and during the night, she poured kerosene oil on her from the stove and set herself on fire and ended her life.
On hearing her cries, my mother and other family members tried to extinguish the fire and immediately she was taken to Guru Nanak Dev Hospital, Amritsar and got her admitted there for treatment and expenditure of her medical treatment was incurred by us”.
Accused Deepak Sharma, himself appeared as DW-1.
After hearing learned Additional Public Prosecutor for the State assisted by Sh.
Sourabh Changotra, Advocate and learned defence counsel, the appellant was held guilty of having caused dowry death of his wife Sunita Kumari @ Aarti Sharma, and, thereby, committed an offence punishable under Sections 304-B of IPC.
However, regarding offence under Section 302 IPC, it was observed that there is no direct evidence on this point, hence, there is no reason to hold accused guilty of the offence under Section 302 IPC.
Vide order of sentence of even date, accused was sentenced to SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -6- undergo rigorous imprisonment for 10 years and to pay a fine of `10,000/- with default clause of rigorous imprisonment for two months for committing offence punishable under Section 304-B IPC.
Assailing the impugned judgment of conviction and order of sentence,the present appeal has come up before me.
I have heard learned counsel for the appellant and learned State counsel, besides appraising the entire material coming on record.
Parties of this case belong to poor strata of the society.
Jagdish Raj (PW-1).father of the deceased, is a labourer and during his cross- examination he categorically stated that he is not employed with any one and he works on daily wages when the work is available.
He also deposed that he has five daughters and one son.
Deceased was his youngest daughter.
Not only this, he also categorically stated that deceased was earlier married to Ramesh.
No dowry was given at the time of marriage of deceased with Ramesh Kumar.
Thus, from the statement of Jagdish Raj (PW-1).it is proved on the file that Jagdish Raj is a poor person and celebrated the marriage of deceased with Ramesh Kumar, which was a dowry less marriage.
Though, it is not necessary, if the earlier marriage was a dowry less marriage, the second would also be the same, yet in the light of further discussion, it would become relevant.
In the case in hand, of couRs.Jagdish Raj (PW-1).and his wife Rakesh Rani (PW-2).deposed that they have given sufficient dowry as per their capacity to the deceased at the time of her marriage with the appellant.
However, they have failed to give details as to what articles were given to deceased by way of dowry at the time of her marriage.
Otherwise, Tarlok SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -7- Singh (PW-6).deposed that the marriage of the deceased was celebrated with the accused-appellant in Gurdwara Pipli Sahib, Amritsar.
Rakesh Rani (PW-2).deposed during the couRs.of her cross-examination, that she does not know the name of the place/hotel/restaurant where the marriage was solemnized.
She also does not know for what amount the place/hotel/restaurant was booked and about the locality where the same was situated.
She further stated that they (she and her husband) had not invited their four other daughters to attend the marriage of deceased.
She even did not invite her brother (maternal uncle of deceased) to attend the marriage.
She only invited her sister to attend the marriage, who lives at Amritsar.
She does not know the name of the cook/halvai, who were engaged by them for cooking the meal and she does not know what amount was paid to them.
She further stated that, in fact, marriage was solemnized at Gurdwara Pipli Sahib, Putligarh, Amritsar.
No gift was given to the accused at the time of soleminization of marriage ceremony of milni and no photographs were taken.
With this statement of Rakesh Rani (PW-2).it is evident that the marriage of deceased with the appellant was very very simple marriage and in fact nothing was incurred by complainant party on food.
The marriage was celebrated in the Gurdwara Pipli Sahib, Amritsar, and no gift was given to the accused at the time of marriage.
Ram Lubhaya (PW-3).who is the mediator of the marriage, categorically stated during the couRs.of his cross-examination that no dowry was given at the time of marriage.
Thus, with the statements of Jagdish Raj (PW-1).Rakesh Rani SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -8- (PW-2) and Ram Lubhaya (PW-3).it stands proved on the file that the marriage was a dowry less marriage.
Under these circumstances and the fact that earlier marriage was also a dowry less marriage convince the conscious of this Court that the marriage of deceased with the appellant of this case is also dowry less marriage.
Complainant being a poor person, depending upon the earnings from the labour work, was not even having capacity to give dowry to his daughter.
Now, when for whatever reasons, deceased could not live with the complainant and ended her life.
The complainant party have come forward with the allegation of harassment of deceased on account of demand of more dowry and motor-cycle.
For the purpose of Section 304-B IPC, a presumption can be raised only on proof of following essentials:- (a) Death of the woman was caused by burns or bodily injury or occurs otherwise than under normal circumstances.
(b) Such death took place within seven years of her marriage.
(c) The woman was subjected to cruelty or harassment by her husband or his relatives.
(d) Such cruelty or harassment was for, nor in connection with, any demand for dowry and (e) Such cruelty or harassment was soon before her death.
In the case in hand, though above a & b points are there yet there is no evidence on the file to show that the deceased was subjected to cruelty or harassment by the appellant or his relatives soon before her death or that the cruelty or harassment was in connection with any demand for dowry.
SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -9- FiRs.of all, her marriage itself was a dowry less marriage, the question of raising demand for more dowry and motor cycle does not arise.
Otherwise, there is no evidence on the file to show that soon before her death, husband or any of his relatives harassed the deceased for bringing more dowry or motor-cycle.
Even the allegations leveled by Jagdish Raj (PW-1).father of the decease, that the appellant has harassed the deceased, demanding motorcycle and more dowry, remained unproved on the file .
Rakesh Rani (PW-2).deposed that appellant was demanding cash and motorcycle.
Jagdish Raj (PW-1).did not state as to what articles, the appellant demanded by way of more dowry.
Even Rakesh Rani (PW-2).did not state as to what amount was demanded by the appellant by way of cash.
Ram Lubhaya (PW-3).categorically stated that appellant did not demand any dowry from the deceased.
Though Jagdish Raj (PW-1),deposed that he has paid a sum of ` 7,000/- and `8,000/- on two occasions to the accused for the proper settlement of his daughter yet he could not tell during the couRs.of his cross-examination as to on which date, month or year he has paid the aforesaid amount to the accused and from where he got the aforesaid money, there is no evidence, in whose presence the aforesaid amount was paid by him to the accused.
In fact, there is no evidence on the file regarding payment of `7,000/- and `8/000/- by the complainant to the accused.
From all these, it becomes evident that since their daughter had died, thereafter, only, the complainant party had come forward with the allegations of demand of dowry and harassment of deceased on account of dowry.
In fact there is not even an iota of evidence available on record regarding SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -10- demand of dowry and harassment of deceased in connection with the demand for dowry soon before her death.
It is the case in which accused-appellant has taken a specific defence and also dared to appear himself as his own witness.
Jagdish Raj (PW-1).during the couRs.of his cross-examination admitted that his daughter lived only for few days with Ramesh Kumar.
When he was asked to give father’s name of Ramesh Kumar he deposed that he does not remember.
Even he had avoided to disclose the place of residence of aforesaid Ramesh Kumar.
Even deceased did no obtain the divorce from aforesaid Ramseh Kumar.
As per Jagdish Raj (PW-1).her daughter’s divorce with Ramesh Kumar was written in brotherhood only.
When there is no decree of divorce from any Court of law, it cannot be said that the fiRs.marriage was ended legally.
Appellant gave the suggestion to Jagdish Raj (PW-1) that Sunita Kumari was having love affair with boy of her own village and she was forcibly married with Ramesh Kumar, and, therefore, she had left the house of Ramesh Kumar to live with that boy but later on that boy did not agree to keep Sunita Kumari.
Under these circumstance, deceased never wanted to live with the appellant and she stayed in the house of the appellant only for 4-5 days and, thereafter, she had gone to her parental village at her own after quarreling with the appellant.
Thus, deceased never wanted to live with the appellant and her parents were forcing her to live with the appellant.
Even on the day of occurrence, father of the deceased along with Ram Lubhaya had left the deceased in their house.
He asked the deceased that she should not conceal SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -11- the factum of her earlier marriage and further that she got married to him without taking divorce from the previous husband, whereupon, she got annoyed on that account and during the night she poured kerosene oil on herself from the stove and set herself on fire and ended her life.
Appellant stated by way of defence that he, his mother and other family members tried to extinguish the fire and immediately the deceased was taken to Guru Nanak Dev Hospital, Amritsar and got her admitted there for treatment.
It is also admitted by the prosecution witnesses that the expenditure of treatment was also incurred by the appellant and that Guru Nanak Dev Hospital, Amritsar is a good hospital.
The appellant and his family members remained present in the hospital.
Even the cremation of deceased was done by them.
Thus, it is the case where the appellant party did not run away from the scene of crime.
They remained present throughout.
They had tried to extinguish the fire and taken the deceased to the hospital and got her treated there.
Even, they performed her last rights.
Not only this, even appellant party informed the parents of the deceased about the incident in question with due promptitude.
Jagdish Raj (PW-1) admitted that Rajiv Kumar son of Ram Lubhaya, informed him about the admission of the deceased in emergency ward of Guru Nanak Dev Hospital, Amritsar, whereupon, he along with his wife reached there Deepak Sharma as DW-1 categorically stated that it was a simple marriage and marriage ceremony was performed in the Gurudwara Pipli Sahib, Putlighar, Amritsar.
Members of the ‘barat ‘ and member of his in-laws were served langar in the Gurudwara.
He never harassed or tortured her, nor demanded dowry from her and her parents.
He also deposed about SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -12- the occurrence in question as to under what circumstances, the same had taken place.
To this witness i.e Deepak Sharma-appellant, no specific question was put as to what actually he demanded as dowry from deceased and in what manner he had been harassing the deceased in connection with demand for dowry.
There is also no specific question put to his witness which could suggest that soon before the death of deceased, she was harassed for and in connection with demand for dowry.
Only four suggestions have been given to Deepak Sharma by way of his cross- examination i.e.he had concocted a false story in his examination-in-chief and further that he used to harass the deceased for demand of dowry or he caused the death of deceased by burning her.
The appellant dared to appear as his own witness and submitted himself for cross-examination by the prosecution.
Complainant was even represented by a private counsel as well but not even a single question was put to the appellant on the point of demand for dowry or harassment of deceased in connection with demand for dowry.
No question was put to Deepak Sharma that at any occasion Jagdish Raj (PW-1).gave him a sum of `7,000/- and `8,000/- on account of demand for dowry.
Thus in view of above discussion, it stands proved on the file that prosecution has failed to prove the above mentioned essential ingredients of Section 304-B of IPC.
It was contended by counsel for State that as death of deceased had taken place within seven years of her marriage i.e.too by burns, therefore, the presumption of dowry death is there under Section 113-B of the Indian Evidence Act.
In this case, as there is no evidence regarding harassement of SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -13- deceased in connection with demand of dowry, therefore, on the basis of presumption under Section 113-B of the Indian Evidence Act, appellant cannot be held guilty.
In Manohar Lal versus State of Haryana, 2014 AIR (SCW) 3923, it has been held that for the purpose of Section 304-B IPC, a presumption can be raised only on proof of the fact that that death of the woman was caused by burns; that the death took place within seven years of her marriage.
Further that she was subjected to cruelty or harassment by her husband or his relatives in connection with demand for dowry soon before her death.
In that very judgment, death of bride had taken place within seven years of marriage.
Statement of mother of deceased that accused used to harass her daughter on account of inadequacy of dowry and used to make demand for cash was there.
In that case, it was held that the statement was general, and not specific.
No specific incidence was indicated suggesting the cruelty or harassment made by the accused and further that though the allegation of demand of dowry was made but none of the witnesses stated that the deceased was harassed “ soon before her death”.
for or in connection with demand of dowry.
The facts of the present case are similar to the aforecited judgment.
In this case as well, the allegation for more dowry and motorcycle are general in nature and not specific as Jagdish Raj (PW-1).could not give any date, time and the year for raising demand for more dowry and motorcycle and even no instance of harassment was stated by any of the prosecution witnesses.
No incident of harassment on account of demand of dowry stated by any of the prosecution witnesses.
The present case is the one in which the mediator of the SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -14- marriage Ram Lubhaya (PW-3) categorically stated that no dowry was given in the marriage.
Thus, statement of Ram Lubhaya (PW-3) contradicts the statements of Jagdish Raj (PW-1) and Rakesh Rani (PW-2).who deposed that they had given sufficient dowry to deceased as per their capacity in her marriage.
It is the case in which deceased had committed suicide.
It is the mind of the deceased which cannot be predicted as to under what circumstance, she had set herself on fire but one thing is evident that there is not even an iota of evidence available on the file to show that the appellant or any of his family members ever abetted her to commit suicide.
There is not even a single incidence available on the file which could show that the appellant ever aided or instigated the deceased to commit suicide.
In the absence of the same, even no offence under Section 306 IPC can be said to be there against the accused Learned counsel for the appellant further cited the judgment titled as Awadhesh Kumar versus State of U.P, 2014 (4) ADJ644 in that case, it was observed that there was no evidence produced on record showing demand of dowry by the appellant.
Vague allegation was leveled in the FIR.
As such, appeal was allowed holding that presumption under Section 304-B of the Indian Penal Code and 113-B could not be invoked against the appellant.
He further cited the judgment tiled as Bakshish Ram and another versus State of Punjab, 2013 (4) SCC131 in that case, it was held by the Hon’ble Supreme Court of India that High Court, as a fiRs.Court of appeal, on facts must apply its independent mind and record its own SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -15- findings on the basis of its own assessment of evidence.
Mere reproduction of the assessment of trial Court may not be sufficient and in the absence of independent assessment by the High Court, its ultimate decision cannot be sustained.
The role of the Appellate Court in a criminal appeal is extremely important and all the questions of fact are open before the Appellate Court.
It was also held in the aforecited judgment that one of the essential ingredients amongst others in provisions of Section 113-B of Evidence Act and Section 304-B Indian Penal Code is that the woman concerned must have been ‘soon before her death’ subjected to cruelty or harassment “ for or in connection with the demand for dowry”.If the alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.
In the case in hand, what to speak of incident of cruelty is remote in time and stale but there is not even single incidence of harassment of deceased or causing of cruelty to deceased in connection with demand for dowry soon before her death in judgment cited as Balwant Singh and another versus State of Punjab, 2004 )(7) Supreme Court Cases, 724.
The another case cited is Laxmi Narain @ Rajesh versus State, 2012 (2) CCR535 In that case, it was held that only because death was unnatural, is not sufficient for conviction under Section 304-B, IPC.
In Naresh and others versus State of Hayana, 2011 (3).AICLR, 451 , it was held that bride was burnt within two years of marriage at matrimonial home while lighting the candle in washroom.
In that case, no demand of dowry was proved against the husband as such conviction of husband under Section 304-B was set aside.
SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document CRA-S-1161-SB of 2013 (O&M) -16- In view of the above, as prosecution has filed to bring home guilt against the appellant.
The judgment of conviction dated 21.03.2013 and order of sentence of even date are set aside.
The appeal is accepted.
Accused is ordered to be acquitted of the charge leveled against him.
His bail bonds and surety bonds are discharged.
Fine, if any paid, is ordered to be returned to the appellant.
(RAJ RAHUL GARG) JUDGE December23, 2014 anil/smriti SMRITI201412.24 11:13 I attest to the accuracy and authenticity of this document