Judgment:
P.K. Jain, J.
1. This appeal is directed against the judgment and order dated January 10,1994, passed by the Additional Sessions Judge, Jagadhri, whereby the appellant has been convicted for the offences under Sections 498-A and 304-B, Indian Penal Code and sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 500/-, and in default of payment of fine to further undergo rigorous imprisonment for six months for the offence under Section 498A, IPC to undergo life imprisonment for the offence under Section 304-B, IPC. Both the substantive sentences have been ordered to run concurrently.
2. The prosecution case, as can be gathered from the record of the Trial Court, is that the deceased Smt. Raj Kumari was married with the appellant somewhere in the year 1985. Out of this wedlock two children, i.e. a daughter and a son were born. There was miscarriage regarding the third pregnancy.
3. After about 8 months of the marriage, the deceased Smt. Raj Kumari alongwith the appellant came to her parents' house. The appellant made a demand of one colour-TV and a cash amount of Rs. 10,000/-. Hari Singh (PW 8), the father of Raj Kumari, paid a sum of Rs. 10,000/- to the appellant in the presence of Maha Singh Sarpanch of Village Sangoi and his brother, and expressed his inability to provide a colour-TV at that time. The appellant and his parents used to taunt the deceased for not giving a gold ring to her father-in-law. Thereafter, the appellant again made a demand of a buffalo which was fulfilled by Hari Singh. A demand of pedestal fan made by the appellant was also fulfilled. But still neither the appellant nor his parents were satisfied and they again raised a demand for colour-TV set and cash amount.
4. Somewhere in the middle of July 1990, the appellant came and informed his father-in-law Hari Singh that Raj Kumari was missing from his house with effect from 17.7.1990. On getting this information, Hari Singh (PW 8), his brother Raghubir Singh (PW10) alongwith other co-villagers made search for Raj Kumari hither and thither and in the nearby relations, but in vain. Ultimately, smelling some foul intention on the part of the appellant and his parents, Shri Hari Singh (PW 8) lodged an FIR (Exhibit PA) on 6.8.1990 for an offence under Section 364, IPC at Police Station Sadar, Yamuna Nagar. However, search of Raj Kumari continued.
5. On 22.8.1990, on getting information Raghbir Singh, (PW 10) Shri Hari Singh (PW 8) and others found the dead body of Raj Kumari stuck to the Jhal of Indri canal bridge. Information regarding the dead body having been found was given by Raghbir Singh (PW 10), on the basis of which Report No. 21 dated 22.8.1990 (Exhibit PB) was recorded at Police Station Indri. H.C. Harpal Singh of Police Station, Indri prepared the inquest report (Exhibit PF). The dead body was identified to be that of Smt. Raj Kumari wife of the appellant by Raghbir Singh (PW 10) uncle and Shri Hari Singh (PW 8), the father of the deceased. The dead body was sent to the Civil Hospital, Kamal. Dr. Anil Sharma (PW 4) alongwith Dr. S.R. Ajmani(PW 5) performed autopsy over the dead body and prepared post mortem report (Exhibit PE). The Salwar (Exhibit P.I) was removed from the dead body, handed over to the police which was seized after converting the same into a sealed parcel.. The body was in an advanced stage of put rification and in liquid form, so it was not possible to send the viscera for chemical examination. After the postmortem, the dead body was handed over to Shri Hari Ram (PW 8), the father of the deceased who alongwith his relations and other persons cremated Raj Kumari in his village.
6. During the course of investigation, it was found that the deceased was harassed and treated with cruelty for bringing insufficient dowry and not meeting the subsequent demands raised by the appellant and his parents from time to time and, therefore, she committed suicide. Consequently, the offences under Sections 498-A and 304-B, I.P.C., were added by Police Station, Yamuna Nagar. The appellant and his parents were arrested in the case. The seized articles were sent to the office of the Forensic Science Laboratory. After the receipt of the report, the investigation was completed and a charge-sheet was submitted to the Court.
7. A charge under Sections 498-A and 304-B, I.P.C., was framed against all the 3 accused to which they pleaded not guilty and claimed trial.
8. In support of its case, the prosecution examined 12 witnesses. A.S.I. Randhir Singh had recorded the F.I.R. of mis case, copy of which is Exhibit PA. In his cross-examination he has stated that on 12.8.1990 he had registered one more case under Section 304-B, I.P.C., against one Kehar Singh on the complaint of one Hans Raj and that the said Kehar Singh had confessed before him that he, after committing murder of his wife had thrown her dead body in the western canal near Yamuna Nagar. (later portion inadmissible in evidence in view of the provisions of Section 25 of the Evidence Act). H.C. Harpal Singh (PW 2), on getting information regarding the dead body of Raj Kumari in the western canal at Indri, had recorded D.D. Entry No. 21 dated 22.8.1990 and had accompanied Gurcharan Singh to the spot. He conducted the inquest proceedings and then sent the dead body for post-mortem. After post-mortem, he handed over the dead body to Raghbir Singh and Hari Singh vide receipt Exhibit PD. In his cross-examination he has clarified that the dead body was identified to be that of Raj Kumari by the incisor teeth as well as the length of the dead body. He has also explained that the dead body was having a green Salwar on it. Wajinder Pal (PW 3) was the Moharrir Head Constable at Police Station, Indri on 23.8.1990 with whom the case property was deposited by H.C. Harpal Singh. Dr. Anil Sharma(PW 4) and Dr. S.R.Ajmani (PW 5) had performed autopsy over the dead body of Raj Kumari and had prepared the post-mortem report, copy of which is Exhibit PE. According to these doctors it was not possible to send the viscera for chemical examination as the body was in advanced stage of putrification and liquid form. The cause of death could not be given by them as a result thereof. Shri Jiwan Kumar (PW 7) is the Photographer. He had taken the photographs of the dead body in the Civil Hospital, Kamal. Hari Singh (PW 8) is the father and Raghbir Singh (PW 10) is the uncle of the deceased Smt. Raj Kumari, Shri Maha Singh (PW 9) is the Sarpanch of Village Sangoi, the parental village of the deceased. ASI Lajja Ram (PW 11) and S.I. Amar Singh are the Investigating Officers.
9. In their statements recorded under Section 313 of the Code of Criminal Procedure, all the three accused admitted that Raj Kumari daughter of Hari Singh was married with the appellant about 8 years ago. Rest of the allegations regarding harassment and demand of dowry have been denied. All the three gave the explanation that the said Raj Kumari is still alive and is residing with some unknown person with the consent of her father and other family members at some unknown place, that the dead body was not of Raj Kumari wife of the appellant, rather the same was of Raj Kumari daughter of Hans Raj, wife of Kehar Singh and that before cremation the dead body was claimed by Hans Raj. The accused persons examined Hans Raj (DW 1) in their defence. According to his testimony, he had identified the dead body of his daughter Raj Kumari who was married with Kehar Singh and had claimed the same by filing an application alongwith an affidavit (Exhibit D.I). According to his testimony, the teeth of her daughter were broken 4 years prior to her marriage and no denture was provided to replace the same. In his cross-examination he clarified that his daughter was 17 years of age at the time of her marriage, that he identified the body from her teeth only, and had made the application for claiming the dead body personally before the Superintendent of Police, Yam una Nagar. He then admitted that they had effected compromise against Kehar Singh etc. because the dead body was not that of his daughter.
10. On the basis of the evidence produced on record, while disbelieving the defence version, the Additional Sessions Judge, Jagadhri, acquitted Balwant Singh and his wife Smt. Sona Devi of the charges, but convicted and sentenced the appellant as stated above. Feeling aggrieved, Suresh Kumar convict has come up in appeal.
11. State of Haryana has filed Criminal Appeal No. 360-DBA of 1994 against the acquittal of the two accused, namely, Balwant Singh and Smt. Sona Devi.
12. Shri Hari Singh has filed Cri. Revision No. 482 of 1994, challenging the acquittal of Balwant Singh and Smt. Sona Devi and for the award of adequate compensation.
13. We have heard the learned Counsel for the parties, who have taken us through the record of the Trial Court.
14. Mr. H.N. Mehtani, Advocate, learned Counsel for the appellant has assailed the order of conviction on the ground that the prosecution has failed to produce any satisfactory evidence to prove that the dead body recovered from the Indri Canal bridge on 22.8.1990 was that of Smt. Raj Kumari w/o the appellant. While making a reference to the testimony of Hans Raj (DW 1), the learned Counsel has argued that the dead body was that of one Smt. Raj Kumari daughter of Hans Raj and wife of Kehar Singh. Thus, it has been argued that the entire prosecution case fails for this simple reason.
15. While meeting this argument, Mr. Virender Singh, Deputy Advocate General, Haryana, has vehemently argued that there is sufficient evidence on the record to prove that the dead body recovered was that of Smt. Raj Kumari wife of the appellant and none else. After reading out the deposition of Hans Raj (DW 1), the learned Deputy Advocate General has argued that the entire story put forward by the appellant and his two co-accused is a self-concocted one and the testimony of Hans Raj stands falsified by his own admission in his cross-examination.
16. We have carefully considered the question of identification of the dead body recovered from Indri canal bridge on 22.8.1990. It may be pointed out that immediately after the recovery of the dead body the same was identified to be that of Raj Kumari wife of the appellant, by Raghbir Singh, the uncle, Hari Singh, the father, and Smt. Kanta, the mother of said Raj Kumari, Maha Singh, Sarpanch, was also present at that time and he had also identified the dead body to be that of the wife of the appellant. From a bare perusal of a testimony of Hari Singh (PW 8), the father, Shri Maha Singh (PW 9), the Sarpanch, and Shri Raghbir Singh (PW 10), the uncle, it is evident that although the recovered dead body was in a very advanced stage of putrification and liquid form yet it was identified by these close relations keeping in view the age, the height, two incisor teeth of the upper jaw and the green Salwar found on the dead body, to be that of Raj Kumari wife of the appellant. The dead body was identified as such by the said father and uncle before the doctors who performed autopsy over the dead body. Thereafter, it was these close relations i.e. Shri Hari Singh (PW 8) and Shri Raghbir Singh (PW 10) who had claimed the dead body and had cremated her in their village.
17. It is pertinent to mention here that when the identity of a certain person is in issue, it may be proved or disproved not only by direct testimony, or by opinion evidence, but presumptively, by similarity or dissimilarity or personal characteristics, i.e. age, height, hair, complexion, other distinctive marks, faculties. Even a skeleton can be identified by physical or visual examination with reference to its peculiar features in it which would mark it out as belonging to the person whose bones or skeleton it is stated to be. It may also be stated here that the people have uncanny sense of identifying their own belongings, particularly articles of personal use in the family, even these articles are of ordinary kind available in the open market. In the present case, the recovered dead body has been identified to be that of Raj Kumari wife of the appellant not only by the green salwar found on the body but by particular characteristics i.e. age, height and the two incisor teeth of the upper jaw.
18. On the other hand, the plea raised by the appellant and his two co-accused to the effect that Raj Kumari wife of the appellant is still alive and is being kept somewhere with somebody by her parents is not only highly improbable but a fairy tale. It was the appellant who had gone to the house of his in-laws and informed that Raj Kumari was missing from his house. Further, the testimony of Hans Raj (DW 1) is self-contradictory. In his cross-examination, he' has categorically stated that since the dead body recovered from the Indri canal bridge was not of his daughter, he had effected a compromise with Kehar Singh. Shri Hans Raj has nowhere stated in his testimony regarding the height of his own daughter; the age given by him also differs. It is interesting to note that according to Hans Raj, his daughter Raj Kumari was murdered by Kehar Singh at Haridwar and her body was thrown at Western Yamuna Nagar. This is not only highly improbable but a white lie. Therefore, the Trial Court was fully justified in totally disbelieving the testimony of Hans Raj regarding the identification of dead body of Raj Kumari, and on the basis of the evidence produced by the prosecution in holding that the dead body was that of Smt. Raj Kumari wife of the appellant. The argument of the appellant on this point is misconceived and without any merit.
19. Thgn the learned Counsel for the appellant has made an attempt to challenge the finding of the Trial Court regarding the alleged harassment and cruel treatment meted out to Smt. Raj Kumari wife of the appellant and the demand of dowry by them. It has been argued by the learned Counsel that this version was not given at the earliest opportunity when a case under Section 365, I.P.C., was registered at the Police Station, Yamuna Nagar, but was introduced later on after due consultation and deliberations. The learned Counsel has tried to point out certain inconsistencies/contradictions in the testimony of Shri Hari Singh (PW 8), Maha Singh (PW 9), Raghbir Singh (PW 10) in this regard.
20. After scanning the testimony of these three PWs, we are unable to agree with the learned Counsel for the appellant. All the witnesses are consistent on the point that immediately after marriage, demand was being made for more dowry in the shape of cash and articles from time to time at least by the appellant. Some of the demands were fulfilled by Shri Hari Singh (PW 8), and the rest could not be met on account of weak financial position. Shri Maha Singh (PW 9), who is the Sarpanch of the village can be said to be wholly truthful witness, inasmuch as he was not over-jealous to support the case of the prosecution against all the three accused nor he has got any bias or prejudice against the accused party. He has called spade a spade in deposing that the dowry demand in cash and kind was made from time to time by the appellant only. If he so wanted, he could have easily implicated the parents of the appellant also by making a statement that when the Panchayat took place in the village of the appellant, the demand was being made by his parents or that he came to know from deceased Smt. Raj Kumari that she was being harassed or given beatings for not bringing sufficient dowry by her parents-in-law. But this witness told the whole truth and nothing but the truth. Inconsistencies or contradictions here or there in the oral testimony of witnesses of the rural background in themselves is a guarantee of truthful version and not a tutored one. It has come out in the testimony of these three witnesses that dowry in cash and kind was being demanded from time to time by the appellant from the parents of his wife i.e. deceased Smt. Raj Kumari. It has also been established on the record that some of the demands were met and the rest could not be fulfilled. The demand for colour TV, gold ring etc. still remained to be fulfilled and the deceased Raj Kumari was being harassed on that account. It is also not disputed that the death of Smt. Raj Kumari is an unnatural one and took place within 7 years of her marriage with the appellant.
21. A careful analysis of Section 304-B, I.P.C. shows that this section has the following essentials :
'(1) The death of a woman should be caused by burns or bodily injury or otherwise than under normal circumstances;
(2) Such death should have occurred within 7 years of her marriage;
(3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband;
(4) Such cruelty or harassment should be for or in connection with demand for dowry.'
Section 113-B of the Evidence Act lays down that if soon before the death such woman has been subjected to cruelty or harassment for or in connection with any demand for dowry, then the Court shall presume that such person has committed the dowry death. The meaning of 'cruelty' for the purposes of these sections has to be gathered from the language as found in Section 498-A and as per that section 'cruelty' means 'any wilful 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 etc. or harassment to coerce her or any other 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'. As per the definition of 'dowry' any property or valuable security given or agreed to be given either at or before or any time after the marriage, comes within the meaning of 'dowry'.
22. With the aforesaid background of the provisions of law, the Trial Court was fully justified in coming to the conclusion that it was the appellant who treated Smt. Raj Kumari with cruelty for not bringing sufficient dowry and ultimately she was driven to commit suicide within a period of 7 years of her marriage with the appellant. We have no reason to differ with the findings of facts recorded by the Trial Court in this respect. Consequently, the conviction of the appellant for the offences under Sections 498-A and 304-B, I.P.C,, is hereby affirmed.
23. As a last resort, the learned Counsel for the appellant has made an appeal for the reduction of the sentence. It has been argued by the learned Counsel that life imprisonment can be imposed in rarest of rare cases and the present case does not fall within that category. It has also been argued by the learned Counsel that it was the appellant who had gone and informed his in-laws that Raj Kumari was missing from his house. It has further been pointed out that the appellant is the only person to look after the family and a long term of imprisonment is bound to affect adversely his entire family including the minor children. On the other hand, the learned Deputy Advocate General has argued that the Trial Court has exercised its judicial discretion in awarding life sentence for the offence of dowry death to the appellant and the same does not call for any interference.
24. It may be stated that the question of awarding sentence is a sensitive one and it differs from case to case even for the same offence. In Hem Chand v. State of Haryana, 1994(3) Recent C.R. 625=I (1995) DMC 86 (SC), the Apex Court observed that awarding extreme punishment, of life imporisonment for the offence under Section 304-B, I.P.C. should be in rare case: and not in all cases. In that case a sentence of 10 years rigorous imprisonment was held to meet the ends of justice. In Smt. Shanti and Anr. v. State of Haryana, 1991(2) Recent C.R; 55=I(1991) DMC 187, the Apex Court awarded the minimum sentence of 7 years rigorous imprisonment for such an offence. Again in Salamat Ali and Anr. v. State of Bihar, A.I.R. 1995 Supreme Court 1863, their Lordships upheld a sentence of 7 years' imposed upon the husband for the dowry death of his wifi1.
25. After giving our careful thought to be facts and circumstances of this case, we find that it is not that type of rare case. which may call for imposition of the extreme sentence of life imprisonment. A lesser sentence would be enough to meet and ends of law and justice. Consequently, while affirming the conviction of the appellant for the offences of the appellant under Sections 498-A and 305-B, I.P.C., we reduce the sentence imposed upon him for the offence under Section 304-B, I.P.C. to a period of 8 years. The other sentence passed against the appellant for the offence under Section 498-A, I.P.C. is hereby affirmed.
26. With the above modification, this appeal stands disposed of.
27. In view of our above findings, the Criminal Appeal No. 360-DBA of 1994, filed by the State of Haryana and Criminal Revision No. 482 of 1994, filed by Shri Hari Singh are hereby dismissed.