Harish Kumar @ Harish vs The State of Haryana

Harbans Singh Rai, J.—Harish Kumar alias Harish was tried and convicted by Additional Sessions Judge Rohtak vide his order dated August 1, 1988. He vide his order dated August 4, 1988 sentenced the accused as under :

Under Section 304B I.P.C. To undergo rigorous imprisonment for life. Under Section 306 I.P.C. To undergo rigorous imprisonment for seven years and to pay a fine of Rs. 200/- and in default of payment of fine, to undergo further rigorous imprisonment for six months. Under Section 498A I.P.C. To undergo rigorous imprisonment for three years with a fine of Rs. 200/- and in default of payment of fine, to further undergo R.I. for six months. Under Section 201 I.P.C. To undergo rigorous imprisonment for three years with a fine of Rs. 200/- and in default of payment of fine, to further undergo R.I. for six months.

All the substantive sentences passed against the accused were ordered to run concurrently.

Feeling aggrieved he has filed this appeal.

Prosecution case, in brief, is that Bimla was married to Harish Kumar accused on May 21, 1985. Bimla was a double post-graduate. Chiman Lal, father of Bimla had died prior to the marriage. Kundan PW 5 is her uncle. Tulsi Bai is mother of Bimla. According to the prosecution, sufficient dowry was given to the accused but the accused was not satisfied and he started making demands of money from Tulsi Bai PW 3 and Kundan Lal PW 5.

On August 31, 1987 Bimla had come to her mother Tulsi Bai at Rohtak and told her that she had asked Harish to return the money of Kundan Lal but Harish Kumar has not agreed and gave her beatings.

Two days later, Tulsi Bai came to know that Bimla had died. She went to village Bainsi, the in-laws village of Bimla and found that Bimla had already been cremated. She informed Kundan Lal who is residing at village Kalanaur.

Kundan Lal on receipt of information made his own enquiries and ultimately on September 5, 1987 made application Ex. PE to Baldev Raj, D.S.P. resulting in the registration of the case.

Daya Nand S.I. left for the village of the accused alongwith Kundan Lal where he prepared rough site plan Ex. PG, recorded statements of certain witnesses and visited cremation ground. He lifted burnt bones and ashes, made them into a sealed parcel and took the same into possession.

On September 10, 1987 A.S.I. Banarsi Dass recorded statement of Tulsi Bai and others. The accused was arrested and after completion of the investigation, he was sent up for trial, convicted and sentenced as mentioned in the earlier part of the judgment.

Prosecution, in support of its case, examined PW 1 Surinder Kuraar Draftsman who has prepared scaled site plan Ex. PA.

PW 2 D.S.P. Baldev Raj stated that he had received application Ex. PB and endorsed the same for registration of a case.

PW 3 Tulsi Bai, mother of the deceased, PW 4 Subhash Chander, brother of the deceased and PW 5 Kundan Lal, uncle of the deceased are the main witnesses who have deposed that deceased was married to the accused; sufficient dowry was given at the time of marriage but the accused was not satisfied and he maltreated the deceased resulting in her death.

PW 6 Sat Ram Das has deposed regarding extra judicial confession made by the accused to him on September 9, 1987 in the presence of Hans Raj at Rohtak.

PW 7 A.S.I. Banarsi Dass and PW 8 S.I. Daya Nand are the investigating Officers.

After the close of prosecution case, the accused in his statement u/s 313 Cr.P.C. denied the prosecution allegations appearing in evidence against him and pleaded false implication, He has taken the following stand :--

"I am innocent. Infact I had never maltreated Bimla since deceased on account of bringing less dowry or otherwise. I did not make any demand whatsoever from Tulsi Bai, Kundan Lal or any body else and these allegations are false against me. Bimla since deceased was pregnant and she had developed acute problems because of pregnancy. She had been taking treatment from village and from outside also Two three days, prior to 3-9-1987, she was not keeping good health and on 3-9-1987, she died her natural death. Tulsi Bai, Kundan Lal and other relatives of Bimla were called by us and they had participated in the cremation of Bimla. Subsequently, on 4-9-1987, Ram Parkash Bhatia, who used to be in police, Hans Raj Bhatia and Kundan Bhatia came to our house and asked my eldest brother Manohar Lal Bhatia, who had also come by then from his service after the death of Bimla, to return all the articles belonging to Bimla, upon which, my brother requested them that they should decide this thing after all the ceremonies. Upon this, Ram Parkash Bhatia and others became annoyed and said that in case the articles were not returned to them on the same day, they knew the way of taking the same back and this resulted in an altercation. The prosecution party thereafter in connivance with the police falsely implicated me in this case".

In defence, he examined D.W. 1 Arjun Dev Bhatia who stated that he learnt about the death of deceased and had gone to the house of accused for condolence. At that time, Tulsi Bai, mother of the deceased, alongwith other persons were present there,

D.W. 2 Shanti wife of Ram Gopal stated that she is working as "Dai" (mid wife) in village Bainsi for the last four years. Bimla deceased was her patient. She was pregnant. She checked her and found that there was some bleeding from her vagina. She advised Bimla to get herself medically examined at Rohtak as the medicines given by her did not make any improvement in her condition. The witness further stated that Simla had met her two days prior to her death and at that time there was heavy bleeding from her vagina. She again advised her to take rest and to get herself checked up in Medical College Hospital Rohtak.

D.W. 3 Attar Singh had produced the summoned record of Medical College Hospital Rohtak showing that at serial No. 50 dated 31-8-1987, there was an entry in the name of Bimla and in the column of diagnosis, the word "Preg" is written.

We have heard the learned counsel for the parties and gone through the record, with their help.

Prosecution relies upon the evidence of P.W. 3 Tulsi Bai, P.W. 4 Subhash Chander and P.W. 5 Kundan Lal. In the prosecution evidence, three occasions are mentioned when the accused was paid money by the complainant party. The first occasion was when Subhash Chander who was residing at Baroda intended to take Bimla to Baroda for taking her help as delivery to the wife of his younger brother Atam Parkash was due. He stated that Bimla told him that she had no money for railway fare etc. for going to Baroda and that she will come later on. He went to Rohtak and gave Rs. 500/- to Tulsi Bai for taking Bimla alongwith her from village Bainsi to Baroda. He further states that in November, 1986, his mother and his sister Bimla reached Baroda. His sister Bimla did not make any complaint at that time. Harish Kumar accused came to Baroda to bring Bimla back. At that time Bimla made a demand for money saying that she may be given some money for starting business. She further stated that she may not be given any item as the same will go waste and she should be given some money. Bimla and Harish Kumar were given Rs. 1,100/- when they left for village Bainsi from Baroda. After some time a letter was received by Subhash Chander demanding Rs. 5,000/- from him but Subhash Chander did not send the money. According to Kundan Lal P.W. 5, he had paid Rs. 5,000/- to Harish as demanded by Bimla, He states in his cross-examination that Harish had told him while taking Rs. 5,000/- that he will return the same to him.

It is stated by Tulsi Bai P.W. 3 that when Bimla came to her before death, she had told her that Harish had mis-behaved with her when she asked him to return the money of Kundan Lal. It is also in the evidence of these P.Ws. that after the death of Bimla, 43 items were taken by the police from the house of the accused and these items are now lying in their house.

To prove an offence u/s 304B I.P.C., the prosecution is to prove that the death of deceased occurred otherwise than under normal circumstances, within seven years of her marriage and that the deceased was subjected to cruelty or harassment in connection with any demand for dowry. The deceased was married on May 21, 1985 and she died in September, 1987. So, her death has taken place within seven years of marriage.

To prove that the death of deceased occurred otherwise than under normal circumstances, the prosecution has not led any evidence. There was no post-mortem examination on the dead body of the deceased nor anybody from the village has been examined who might have stated as to under what circumstances the deceased had died. Three P.Ws. examined by the prosecution, i.e., P.W. 3 Tulsi Bai, P.W. 4 Subhash Chander and P.W. 5 Kundan Lal did not know as to how the deceased died. They only learnt that deceased had died and was cremated. The accused, in his statement, pleaded that, the deceased was not keeping good health and she had died natural death in September 1987. As the prosecution has not led any evidence to show that deceased died in circumstances, otherwise than normal, it cannot be said in what circumstances she had died whether her death was natural or not.

As far as third circumstance as to whether she was maltreated on account of dowry, the prosecution has relied upon three demands, i.e.. of Rs. 500/-, Rs. 1,100/-and Rs. 5.000/-. Neither of these amounts is covered by the definition of dowry. Rs. 500/- were paid to the deceased as she had shown her inability to go to Baroda to attend her brother''s wife who was to deliver a child. The deceased had told her brother that she had no money to go to Baroda. This amount of Rs. 500/- was paid to the deceased to enable her to go to Baroda. So, this cannot be styled as dowry. When the deceased had gone to Baroda and the wife of her brother had given birth to a child, the deceased said that instead of giving her articles which would go waste, she may be given cash. She was paid Rs. 1,100/- which might have been calculated as cost of the articles which were to be given to her on the birth of a son to the wife of her brother. It is customary in our society that when a son is born to the brother, certain articles are given to sisters as a mark of happy occasion. If the deceased said that she may not be given articles but may be given cash then in such a situation it cannot be said that it was a demand for dowry which she was compelled to have from her parents. The parents of Bimla wanted to give some articles by their own sweet will as they were feeling happy on the birth of a son to the wife of brother of Bimla deceased and if they had given some articles or money on that occasion, it cannot be termed as dowry.

The third payment of Rs. 5,000/- by Kundan Lal to Harish Kumar accused is again not a demand for dowry. Admittedly the money was paid as a loan for starting some business which Harish Kumar could not return. A loan can never be termed as dowry. It is in prosecution evidence that Harish Kumar accused had taken Rs. 5,000/- as a loan with the undertaking that he will return the same. It is a different matter than return of money was delayed. Taking all the three items, it cannot be said that there was any demand of dowry by the accused from the deceased.

As the prosecution has not been able to establish that the deceased died an unnatural death nor there is any evidence to establish that she was harassed due to demand of dowry, no offence u/s 304B I.P.C. is made out against the accused.

As far as offences under Sections 306, 498A and 201 I.P.C. are concerned, there is no evidence to support the conviction of the appellant under these offences. No evidence has been led which may establish any of these offences against the accused. Consequently the conviction and sentence of the accused under Sections 304B, 306, 498A and 201 I.P.C. are set aside and he is acquitted of all the charges. This appeal is allowed.