Jai Pal vs State of Haryana

R.L. Anand, J.—This is a criminal appeal and has been directed against the judgment and order dated 1.10.1994 passed by the Court of Additional Sessions Judge, Sonepat, who convicted the present appellant Jai Pal u/s 304-B of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of ten years.

It may be mentioned here at the first instance that present appellant Jai Pal was tried alongwith Satbir, Mahabir, Pardeep, Dilbagh and Rattan under Sections 304-B, 498-A and 201 of the Indian Penal Code, but Satbir etc. were acquitted.

The story of the prosecution can be briefed as follows :

Sube Singh PW 6 is the father of deceased Smt. Dayawanti. He lodges the report by averring that he earns his livelihood by doing labour. He has three sons namely Rajinder PW 7, Bal Kishan and Dilbagh Singh. Two years prior to the death of his daughter Dayawanti he married her with Jai Pal appellant according to Hindu rites and ceremonies after giving dowry to his capacity. Jai Pal appellant is employed in the Army. After few days he started harassing his daughter and started giving beating to her. When the deceased was being subjected to cruelty the appellant used to say to the complainant to give scooter, failing which she would face the consequences. After 7/8 months of her marriage and when the deceased was residing in the house of her in-laws in Village Khanpur Kalan, Rajinder PW went to that village in order to enquire about the welfare of his sister. At that time also the deceased told her brother about the harassment and the demand of scooter. Rajinder made the appellant to understand. It is alleged by the complainant that for the last 7/8 months the deceased used to reside in the house of her parents but about 1 month back the appellant came to his house and showed remorse and assured the complainant that in future he would not repeat the demand of dowry etc. The deceased was reluctant to go to the house of her husband lest she might be killed but on believing the representation of the appellant the complainant, his wife Ram Payari, Kalas, his daughter-in-law and his son Rajinder persuaded the deceased to accompany the appellant after pacifying her. On 7.3.1992 at about 6.30/7.00 p.m. Sumander Singh son of Chandu Dhanak resident of Khanpur Kalan came to the house of the complainant and told him that his daughter was seriously ill and that the complainant has been called in Village Khanpur Kalan. The complainant conceived a doubt. Then he along with his wife Ram Payari, Kalas and Fateh Singh went to Village Khanpur Kalan and there came to know that the appellant has allegedly burnt Dayawanti after hangingher. When the complainant enquired from Jai Pal appellant about the cause of death of deceased, the latter told the former that Dayawanti has committed suicide after putting a rope in her neck. The appellant further told the complainant that the deceased has allegedly died due to stomachache and they have cremated her. The complainant alleged that he made confidential enquiries and came to know that the appellant hanged Dayawanti and with the help of Mahabir, Dilbagh, Pardeep, Rattan and Satbir have cremated the dead body of Dayawanti by putting woods and dung-cakes. It is further alleged by the complainant that the accused told their neighbourers that the deceased has died on account of stomachache. On above allegations ASI Jagpal Singh PW 9 of Police Station Gohana recorded the statement Ex. PC of the complainant Sube Singh, which was read over and explained to him, who thumb marked the same in token of its correctness. The Thanedar made endorsement under the said statement and it was sent to the Police Station, on the basis of which formal FIR Ex. PC /I was recorded and the offence was registered u/s 304-B read with Section 201 of the Indian Penal Code vide FIR No. 64. The special report of this case was also received by the Illaqa Magistrate on 9.3.1992. After recording the statement of Sube Singh, ASI Jagpal Singh went to the place of occurrence, which took place on 7.3.1992, inspected the spot and prepared rough site plan Ex. PE in the presence of Sube Singh. He also visited the cremation ground and took into possession the burnt ashes/bones of the deceased vide recovery memo Ex. PB. Further he prepared rough site plan of the place of recovery of ashes etc. On 12.3.1992 appellant Jai Pal was arrested along with others. After recording the statements of the witnesses and on receipt of the report of Chemical Examiner Ex. PG, the appellant along with others was challaned in the Court of Illaqa Magistrate, who supplied the copies of documents to the accused and vide commitment order dated 11.9.1992 committed the present appellant and his companions to the Court of Sessions.

Vide order dated 1.10.1992 appellant Jai Pal was charge-sheeted under Sections 498-A, 304-B and 201 of the Indian Penal Code, while his companions were charge-sheeted u/s 201 of the Indian Penal Code. The charges were read over and explained to the accused, to which they pleaded not guilty and claimed trial.

In order to prove the charges the prosecution examined PW 1 Ram Kumar, Draftsman, who prepared scaled site plan Ex. PA with correct marginal notes on 26.6.1992; PW 2 Constable Jaswant Singh, who took the sealed parcel to the office of F.S.L., Madhuban; PW 3 MHC Dilbagh Singh, who gave his statement to the effect that he handed over the sealed parcel containing ashes to Constables Jaswant Singh PW 2; PW 4 Arjan Singh, SI, who submitted final report u/s 173, Criminal Procedure Code; PW 5 Constable Suresh Kumar, who attested the recovery memo Ex. PB regarding taking into possession of burnt bones/ashes; PW 6 Sube Singh, father of the deceased; PW 7 Rajinder, brother of the deceased; PW 8 Dhan Singh, HC, who recorded the formal FIR Ex. PC/1 and ASI Jagpal Singh as PW 9, who is the Investigating Officer of the case. The prosecution placed on record the report of the Director, FSL, Madhuban Ex. PG and finally closed the case.

The statement of Jai Pal appellant was recorded u/s 313, Criminal Procedure Code and his plea was that the deceased died due to stomach pain. I need not incorporate the plea of others as they have been acquitted by the Trial Court.

In defence the appellant examined DW1 Mange Ram, who deposed that the deceased used to develop pain in her abdomen earlier also and a boy was sent to inform the parents of the deceased about her death. It has also been certified by this witness that the parents of the deceased were fully satisfied about the cause of death and last rites were performed in their presence. Mange Ram further stated that the parents of the deceased took the dead body to the cremation ground. Statement of DW 2 Brahma is also to the same effect.

The learned Trial Court believed the story of the prosecution in part and convicted Jai Pal appellant u/s 304-B and sentenced him to undergo rigorous imprisonment for a period of ten years. Aggrieved by his conviction and sentence, the present appeal, which I am disposing of with the assistance rendered by Mr. R.S. Ghai, Senior Advocate, on behalf of the appellant, who has been assisted in the arguments by Mr. S.S. Narula, Advocate, and the learned Deputy Advocate General, who has given representation on behalf of the State. I have also gone through the records of this case very minutely.

The learned Senior Counsel has assailed the judgment of the Trial Court and his fertile argument was that the learned Trial Court committed a patent illegality in convicting the appellant u/s 304-B of the Indian Penal Code. He submitted that if the entire allowance is given to the prosecution, the case of the prosecution does not travel beyond 498-A of the Indian Penal Code. On the contrary, Mr. Shailender Singh has submitted that deceased Dayawanti died unnatural death within seven years of her marriage in the house of the appellant and that she was subjected to cruelty with regard to the demand of dowry and in these circumstances the conviction of the appellant should be maintained u/s 304-B of the Indian Penal Code. The learned DAG submitted that if this Court does not accept the conviction of the appellant u/s 304-B, then an alternative conviction u/s 306 of the Indian Penal Code should be recorded.

After considering the rival contentions of the parties, I am of the considered opinion that the appellant was not rightly convicted u/s 304-B of the Indian Penal Code but certainly he can be convicted u/s 498-A of the Indian Penal Code, I also do not subscribe to the argument raised by the learned Counsel for the respondent that offence u/s 306 of the Indian Penal Code is made out against the appellant.

In order to attract the provisions of the Section 304-B of the Indian Penal Code, it is obligatory on the part of the prosecution to establish the following ingredients :

(1) that the death of the deceased was caused by burns or bodily injury or occurred otherwise than under normal circumstances within seven years of her marriage; and

(2) that soon before her death the woman was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry.

In the present case the prosecution has not been able to establish the first ingredient that the death of the deceased had taken place in abnormal circumstances. It is true that the deceased had died within seven years of her marriage. It can also be inferred for the benefit of the prosecution that ordinarily the ladies do not die on account of stomachache. Something must have happened glaringly causing the death of the deceased but this aspect has to be proved by the prosecution and no adverse inference can be drawn against the appellant even with the aid of Section 113-B of the Indian Evidence Act. In this case the admitted facts are that no post-mortem on the dead body of Dayawanti was conducted. It is the case of the prosecution that the appellant in haste tried to cremate the dead body of Dayawanti. The police took into possession the burnt bones and ashes of the deceased. The report of the Forensic Science Laboratory Ex. PG does not advance the case of the prosecution. The expert has opined as follows :

"No opinion regarding species of origin, age and sex could be given as the bones were too fragmentary for examination."

From this examination, no inference can be drawn in favour of the prosecution that the death of the deceased had taken place under unnatural circumstances. The statements of DW1 Mange Ram and DW 2 Brahma are to the effect that the parents of the deceased were informed about her death and the dead body was cremated in their presence and at that time no finger was raised nor any foul play was conceived on the part of the complainant. It is not the case of the prosecution that the deceased vomited before her death. No vomit has been taken into possession by the Investigating Officer. There is no circumstantial evidence to this effect that some poisonous substance etc. had been administered to the deceased. No circumstantial evidence in the shape of rope etc. was taken into possession, from which it can be remotely suggested that the death of the deceased had taken place under unnatural circumstances. If the first ingredient of Section 304-B is not proved by the prosecution, the conviction under this section cannot be sustained.

Now the point arises whether the appellant Jai Pal has committed any other offence other than Section 304-B of the Indian Penal Code or not. Though an effort was also made by Mr. Ghai by relying upon the judgment Sham Lai etc. v. State of Haryana 1997 (1) Cri 245:1 (1997) CCR 231 (SC) that the prosecution has not been able to establish that soon before her death the deceased was subjected to cruelty by the appellant and therefore, the finding u/s 498-A of the Indian Penal Code cannot be recorded. This submission of the learned Counsel for the petitioner is devoid of any merit. The words "soon before her death" is the matter of interpretation for the purpose of Section 304-B of the Indian Penal Code and not for the purpose of Section 498-A of the Indian Penal Code. "Cruelty" has been defined u/s 498-A of the Indian Penal Code and according to it, 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 has been added to Section 498-A and it has been stated that for the purpose of this section, "cruelty" means (a) 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, limb or health (whether mental of 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. The evidence which has come on the record from the mouth of PW 6 and PW 7 attracts explanation (b) of Section 498-A. In such like cases relations are the best witnesses because they will be presumed to know about the state of affairs going on in the house of their daughter or sister. Their statements cannot be brushed aside simply on the ground that they are partisan witnesses or they are interested in the success of the case being related to the woman. When a family dispute in connection with the demand of dowry arises in the house of the in-laws of a woman, the parents /brothers are the first persons who get the pinch of the alleged demand of dowry besides the bride. It will be the natural conduct on the part of the bride to apprise her parents /brothers as to whether she is leading a happy married life in the house of her husband/in-laws. This Court can also draw a reasonable inference in favour of the appellant to the effect that after the death of Dayawanti, Sube Singh and his son Rajinder would be the first persons to implicate anybody in the world in order to take the revenge. But this Court cannot ignore one glaring fact on the record that the death of Dayawanti had taken place on 7.3.1992, within two years of her marriage. A woman when marries herself she marries with great expctations that she will get financial security; she will get love and affection in the house of her husband and she will conceive children so as the family of her in-laws may flourish for the future. It would never be the object of a bride to die at the earliest. She always wants to live with comfort. She goes to the house of her in-laws with great expectations and when she is subjected to cruelty with regard to the demand of dowry, her desires and expectations become frustrations.

In the present case we have the statements of two natural witnesses who are in a position to state about the state of affairs, which were going on in the house of the appellant. PW 6 Sube Singh has deposed that immediately after the marriage, the accused started harassing his daughter on the plea that he had not given dowry to the satisfaction of the accused. Further, it has been stated by this witness that his son Rajinder told him that the deceased was being harassed in the house of appellant, Jai Pal. In the cross-examination Sube Singh deposed that the appellant made a demand of scooter. His statement is fully corroborated by the statement of PW 7 Rajinder when he deposed as follows :

"At that time Jai Pal started beating and harassing my sister on the pretext that we had not given handsome dowry. They raised demand of scooter from my sister. We could not give the scooter because we were not in a position to give the same. When I went to the house of Jai Pal to see my sister to enquire about her well-being, my sister started weeping bitterly. She told me that she is being beaten and harassed because she had not been able to provide them a scooter."

The statements of these two witnesses on this count could not be shattered successfully by-the defence in the Trial Court. Relying upon the statements of these two witnesses, I am of the considered opinion that the ingredients of Section 498-A are attracted and the appellant should be convicted under this section instead of Section 304-B of the Indian Penal Code.

Now I discuss the case of the State as to whether the case u/s 306 of the Indian Penal Code is made out or not. Abetment has been defined in this section, according to which if a person commits suicide, whoever abets the commission of such suicide, whall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Firstly, it has to be established by the prosecution that the death of a person was the result of suicide. There is not an iota of evidence on the record to this effect. Though Smt. Dayawanti died in the house of her in-laws but the evidence of suicide is missing. Also the evidence of abetment directly or indirectly leading to her death is again missing. There should be a direct nexus from which this Court may be able to draw a reasonable inference that the death of the deceased was due to the effect of the alleged abetment. Both the ingredients could not be proved by the prosecution successfully in this case.

As a result of the above discussion, I acquit the appellant of the charge u/s 304-B of the Indian Penal Code but convert his conviction u/s 498-A of the Indian Penal Code and sentence him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 3,000/-. In default of payment of fine he shall undergo further rigorous imprisonment for a period of nine months.

Let the intimation about the final decision of this appeal be sent to the District Jail, Sonepat.

The Counsel appearing for the appellant submits that the appellant is in custody since 1.10.1994. The jail authorities would verify this aspect.