Koshalya vs State of Punjab

J.S. Sekhon, J.

Mst. Koshalya and her son Harbans Lal, appellants along with her husband Kashmiri Lal, daughters Mst. Parveen Rani and Kiran Rani and her soninlaw Sat Pal were tried on a charge for offence under Section 304B read with Section 149, Indian Penal Code, by the learned Additional Sessions Judge, Hoshiarpur. Mst. Koshalya and Harbans Lal were found guilty on the charge for offence punishable under Section 304B of the Indian Penal Code and each one of them was awarded sentence of rigorous imprisonment for life and fine of Rs. 500/ or in default of payment thereof to further suffer three months'' rigorous imprisonment while their coaccused Kashmiri Lal, Parveen Rani, Kiran Rani and Sat Pal were acquitted.

Feeling aggrieved against their conviction and sentence, Mst. Koshalya and Harbans Lal had preferred Criminal Appeals No. 448DB and 460DB of 1991 respectively. Both these appeals shall be disposed of by this order as these arise out of the same judgment of the trial court and rest upon the same evidence.

In brief the facts of the prosecution case are that Mst. Kamlesh Rani alias Babli deceased was the daughter of Jagiri Lal (PW 12) of Jalandhar Cantt. She was married with Harbans Lal accused resident of Balachaur on 6.5.1989. She along with her husband, parentsinlaw and sistersinlaw used to reside jointly in a house at Balachaur. Ashwani Kumar (PW7) and Raj Kumar (PW14) are the bothers of the deceased. The father and brothers of the deceased used to visit her inlaws'' house off and on for seeing her. About three or four months prior to her death, a telegram was received from Harbans Lal alias Pappu accused by the parents of the deceased asking them to reach Balachaur immediately.On receiving this telegram, the brothers and father of the deceased rushed to Balachaur, but found Kamlesh Rani hale and hearty. Harbans Lal alias Pappu and her mother Koshalya accused demanded a sum of Rs. 50,000/ from these persons who undertook to make necessary arrangement for the same but Babli was not sent along with them. About twothree weeks later, another telegram was received from aforesaid Harbans Lal alias Pappu calling upon the brothers and parents of the deceased to reach Balachaur soon, but the latter expressed their inability on account of the serious illness of the mother of the deceased. About a month thereafter Ashwani Kumar, P.W. went to Balachaur to fetch his sister Babli to Jalandhar. On this occasion, Harbans Lal and Mst. Koshalya asked for money but he satisfied them by saying that the money is being arranged. Bholi alias Parveen Rani sister of Harbans Lal abused the deceased in the presence of Ashwani Kumar saying that she was not conversant with the domestic work. The motherinlaw of the deceased also abused her. Ashwani Kumar then returned to his house and apprised his parents'' of this episode. Thereafter, they sent telegram to Sh. Tarsem Lal brother of Koshalya accused residing at Calcutta as he had brought about the marriage of the deceased with Harbans Lal accused conveying that the deceased was being maltreated. Tarsem Lal, however, did not respond to this telegram. The uncle of the deceased died thereafter and due information was given to Harbans Lal accused about his death but he did not allow Babli to go to her parents house for offering condolences. About one month prior to her death, Harbans Lal alias Pappu came to Jalandhar Cantt and took a sum of Rs. 50,000/ from Raj Kumar (PW. 14) brother of the deceased for opening a shop at Balachaur. Harbans Lal accused again came to Jalandhar on 3.8.1990 and appraised his inlaws that he had taken a shop on rent. He further demanded another amount of Rs. 50,000/ for purchasing the articles to be exhibited for sale in the said shop but the brothers and father of the deceased expressed their inability to give this amount. Harbans Lal then felt offended and went to his house. On 4.8.1990, Tarsem Lal, mediator, approached the parents of the deceased at Jalandhar Cantt. and conveyed the message of his sister Koshalya accused that none of them should visit her house on Raakhi ceremony (Raksha Bandhan) and Babli will also not to visit their house on Raakhi ceremony on 6.8.1990 if they failed to pay Rs. 50,000/. In the meanwhile Satish Kumar (PW 15) cousin brother of the deceased visited her in laws'' house on 5.8.1990 and found her weeping. He asked her to tie the Raakhi but she refused to do so saying that she had been restrained by her inlaws to do so as her parents had not fulfilled their demand of money. She further informed him having been threatened by her inlaws to send her to her parents'' house if she tied Raakhi to any of her brothers.

On 9.8.1990 in the early hours of the morning, Mst. Babli suffered burn injuries. She was removed to Primary Health Centre, Balachaur by Kashmiri Lal where Dr. Shangara Ram Kainth (PW 6) examined her at 6 a.m. and sent intimation Exhibit PG to the local police in this regard. Accordingly, on receipt of information, A.S.I. Mohinder Singh (PW 19) rushed to the hospital and elicited information about the fitness of Babli to make statement but the doctor declared her unfit to make a statement. He referred her to P.G.I. Chandigarh for treatment due to her precarious condition, she was taken to P.G.I. Chandigarh where Dr. Anurag Jindal (PW 11) admitted her at 11.10 a.m. on that day and found that she was having 80% burn injuries. Dr. Davinder Gupta (PW 17) treated her injures but she succumbed to the injures on the same day at 12.00 Noon. After her death, intimation Exhibit PM was sent to the local police by this doctor.

On receipt of intimation that Babli was lying injured with burn injuries in the hospital at Balachaur, her brother Ashwani Kumar along with her father Jagiri Lal rushed to the hospital where they learnt that Babli had already been removed to P.G.I. Chandigarh for treatment. They then went to P.G.I. Chandigarh but by then she had already expired. A.S.I. Mohinder Singh received wireless message Exhibit PX from Chandigarh at 6.30 p.m. about her death. He went to Chandigarh on 10.8.1990 where Ashwani Kumar PW met him and his statement Exhibit PF was recorded. On its basis a case under Section 302 read with Sections 149 and 148, Indian Penal Code, was got registered against all the accused at Police station Balachaur vide FIR Exhibit PF/1 at 7.30/8.40 p.m. The special report was conveyed to the Ilaqa Magistrate through Palwinder Singh Constable (PW 5).

A.S.I. Mohinder Singh then started investigation of the case and drafted inquest report Exhibit PK of the dead body at the P.G.I. The dead body was referred to the General Hospital, Sector 16, Chandigarh, for autopsy. The autopsy was conducted by Dr. Viney Goel (PW 10) on 11.8.1990, who found superficial to deep burns on the body. The doctor opined that cause of death was due to shock resulting from extensive burns which were sufficient to cause death in the ordinary course of nature. The viscera of the deceased was sent to the Chemical Examiner for analysis. Ultimately, the report of the Chemical Examiner revealed that there was no poison in the viscera.

A.S.I. Mohinder Singh also recorded the statements of various witnesses. He visited the spot and prepared site plan Exhibit PY. The accused were arrested on 28.8.1990 and after completion of investigation, all the accused were arraigned for trial on such like allegations by submitting the charge sheet before the committing Magistrate, who committed the case to the Court of Session.

Before the trial court, in order to prove its above referred case, the prosecution examined nineteen witnesses. The report Exhibit PZ of the Chemical Examiner was also tendered in evidence. The version of the accused before the trial court in their respective statements was that of innocence and false implication. Harbans Lal further maintained that Mst. Babli was mentally upset and he had shown her to a doctor of Dayanand Medical College, Ludhiana. Jagiri Lal father of the deceased and his relations had concocted a false case against him to humiliate and black mail him and his family members. Mst. Koshalya accused further maintained that her son Harbans Lal was residing separately from her.

When called upon to enter on their defence, before the trial court, the accused examined seven witnesses. Kamal Singh, D.W. 1 and Raghbir Singh, D.W. 7 deposed about the accused having never demanded any dowry or maltreated Babli deceased. D.W. 1 Kamal Singh also stated that she had some defect in her brain and was being treated at Ludhiana. Balbir Singh, D.W. 2 denied having produced the accused before the police. Krishan Kumar (DW 3) of Ludhiana deposed that Rajinder Kumar along with his wife Mst. Kiran accused used to reside at Ludhiana and she was arrested by the police after seven or eight days before Raakhi. Sh. Hussan Lal, D.W. 4 deposed that Sat Pal and Parveen Rani were arrested by the police after eight days of Raakhi. Dr. Pami Singh, Consultant Psychiatrist, D.W. 6 on the basis of record produced by Jagdish Lal, D.W. 5 deposed having treated Babli on 10.1.1990 from border line mental retardation with depression and prescribed medicine vide prescription Exhibit DE.

The trial Court, however, believing the prosecution evidence convicted and sentenced the appellants as referred to above while acquitting the other accused by giving them benefit of doubt.

Mr.R.S. Rai, the learned counsel for the appellants contends that the version of Ashwani Kumar (PW 7) and Raj Kumar (P.W. 14) brothers of the deceased that the latter had to pay Rs. 50,000/ to her husband Harbans Lal accused is belied by the testimony of her father Jagiri Lal as the latter is silent regarding payment of this amount. The nonreflection of this amount in incometax return by Raj Kumar was also stressed. He further highlighted that the deceased was suffering from mental ailment and had committed suicide on her own volition. In the alternative, it was maintained that the case of Mst. Koshalya appellant was distinguishable due to lack of specific allegations of her having treated the deceased with cruelty.

Mr. K.S. Sidhu, the learned Additional AdvocateGeneral, Punjab, on the other hand, supported the findings of the trial Court contending that telegram marked ''A'' and ''B'' given by Harbans Lal, appellant, to the father of the deceased clearly spell out demand of money by him from his inlaws. It was also stressed that the brothers of the deceased being grown up persons may not take in confidence their father Jagiri Lal (PW 12) while paying Rs. 50,000/ to Harbans Lal.

It is admitted case of the parties that Mst. Babli deceased was married with Harbans Lal accused on 6.5.1989 and that this marriage was brought about by Tarsem Lal brother of Mst. Koshalya accused (mother of Harbans Lal accused). The telegram Exhibit PA given by Pappu alias Harbans Lal on 21.6.1990 to his fatherinlaw Jagiri Lal (PW 12) leaves no doubt that Jagiri Lal was urgently called by Harbans Lal to Balachaur on the pretext of serious ailment of Babli while earlier vide telegram Exhibit PB dated 12.6.1990 given by Harbans Lal alias Pappu, Jagiri Lal, PW, was urgently called to Balachaur. On receipt of the telegram, Jagiri Lal (father of the deceased) along with his sons Ashwani Kumar and Raj Kumar rushed to the house of the inlaws of Babli deceased, but found her hale and hearty. Harbans Lal alias Pappu accused in his statement recorded under Section 313, Criminal Procedure Code had simply denied having given these telegrams. The testimony of Som Nath, Duty Clerk of Postal Department (PW 1) clearly establishes that telegram Exhibits PA and PB are the correct copies of the original telegrams give by Pappu. These telegrams were given by Pappu alias Harbans Lal accused. Jagiri Lal (PW 12) has also stated that on receipt of telegrams he along with his sons had gone to the house of Harbans Lal. The testimony of both these witnesses in this regard was not challenged during crossexamination. Thus, there is no escape but to hold that these telegrams were given by Harbans Lal alias Pappu accused to his fatherinlaw. On receipt of telegram Exhibit PA, Jagiri Lal has given telegram mark ''A'' to his soninlaw on 22.6.1990 expressing his inability to reach there due to the serious ailment of Parkash. Jagiri Lal had also reacted to this situation of matreating of his daughter by giving telegram mark ''B'' to Tarsem Lal, maternal uncle of Harbans Lal as he had brought about the marriage between Harbans Lal and Mst. Babli deceased. Thus, this documentary evidence, which could not be fabricated after this occurrence, clearly spells out that the deceased was being tortured by her husband and her motherinlaw.

Therefore, the testimony of these witnesses that these telegrams were given in order to call them to Balachaur by Harbans Lal alias Pappu accused in order to pressurize them to part with Rs. 50,000/ sounds truthful. It is the consistent version of Ashwani Kumar, PW 7 in his statement, Exhibit PF as well as during his testimony at the trial that he along with his brother Raj Kumar and father Jagiri Lal went to Balachaur, when the accused including Mst. Koshalya, appellant, demanded Rs. 50,000/ from them. Simply because in his statement, Exhibit PF on the basis of which FIR was recorded he had not specifically stated that these two accused had taken them aside while making such demand but at the trial he had so deposed is not sufficient to belie his testimony in this regard as he was not expected to give minute details in his statement before the police being perturbed due to the sudden demise of his sister Mst. Babli.

The question then arises whether Raj Kumar (PW 14), brother of the deceased, had actually paid Rs. 50,000/ to Harbans Lal accused. In this regard, it is noteworthy that according to Ashwani Kumar (PW. 7), his brother Raj Kumar had sold the shop and this money was the sale proceeds thereof. He further stated that Raj Kumar had told him having paid Rs. 50,000/ and that he was not present at that time. The version regarding payment of this amount by Raj Kumar figures in the report lodged by this witness. During cross examination, it was elicited from Ashwani Kumar that his brother Raj Kumar used to sell girders and sarias while he used to work as Broker at Ludhiana for selling iron sheets. Thus, this witness was not expected to know whether his brother Raj Kumar was Incometax assessee and used to file incometax returns. Consequently, the testimony of Raj Kumar (PW 14) that he is not an incometax assessee or that he has not reflected this amount in the accounts maintained by him cannot be said to be untruthful, especially when it is usual that the sale price of immovable property is not correctly reflected in the saledeed in order to avoid payment of exorbitant registration fee and wealth tax etc. This amount of money was paid on 20.7.1990 in the presence of Anant Abhinash (PW 16), who is an insurance agent and happened to be present in the house of this witness in connection with procuring the insurance of the mother of Raj Kumar. It appears that due to greed, the husband and motherin law of the deceased had further put up a demand of another Rs. 50,000/ for purchasing articles to be sold on the shop set up by Harbans Lal accused. In this connection, Harbans Lal accused paid a visit to inlaws at Jalandhar on 3.8.1990, but Ashwani Kumar and Raj Kumar, brothers of the deceased, expressed their inability to pay the same. Thereafter, Tarsem Lal also visited the house of Raj Kumar and Ashwani Kumar. The nonexamination of Tarsem Lal by the prosecution is of no consequence since he being closerelation of the accused was not expected to support the version of the prosecution. Admittedly, Raakhi ceremony fell on 6.8.1990. In view of the conduct of the mother inlaw and husband of the deceased, Ashwani Kumar and Raj Kumar (PWs) had not visited their sister Mst. Babli deceased at Balachaur for performance of this ceremony. On the other hand, their cousin brother Satish Kumar (PW 15) happened to pay visit to her house on 5.8.1990 and found her weeping. He asked her to tie Raakhi but she refused to do so as she had been instructed by her motherinlaw not to do so as her parentsinlaw had put up a demand of Rs. 50,000/. The testimony of the witness is discarded by the trial Court as Raakhi falls on 6.8.1990, whereas this witness visited the house of his cousin sister on 5.8.1990 in that connection. The conduct of this witness in not apprising the brothers of the deceased qua the maltreating of her sister also weighed with the trial Court. The above referred approach of the trial Court is not appreciable as brothers and cousin brothers do pay visit to their sister in connection with Raakhi a day earlier. Moreover, sisters do post Raakhis much before the Raakhi day so that these should reach their brothers well before time. Thus, there is nothing abnormal in the conduct of Satish Kumar (PW 15) in visiting the house of his cousin sister a day prior to Raakhi for tying the sacred thread called Raakhi. Obviously, Satish Kumar as well as his uncle Jagiri Lal and his cousin brothers Ashwani Kumar and Raj Kumar knew earlier about the maltreatment of the deceased by her parentsinlaw. Thus, he thought it fit not to perturb them further by giving the above referred information regarding the maltreatment of the deceased, especially when the mother of the deceased was seriously ill during those days. Thus, the testimony of Satish Kumar, P.W. also rendered due assurance to the version of Ashwani Kumar and Raj Kumar eyewitnesses that the deceased was being maltreated and they were restrained from visiting her inlaws'' house on the occasion of Raakhi ceremony and that the deceased was also restrained from visiting her brothers house on that occasion. Thus, there is no escape, but to conclude that the deceased was treated with cruelty on 6.8.1990 by restraining her to perform the Raakhi ceremony on the grouse that her brothers'' and parents were not satisfying the demand of her husband and motherinlaw of another Rs. 50,000/. It is not disputed that she suffered burn injuries in the early hours of 9.8.1990 and succumbed to the injuries at 12.00 noon on that day.

The medical evidence of Dr. Shangara Ram Kainth (PW 6) of Primary Health Centre, Balachaur; Dr. Anurag Jindal (PW 11) and Dr. Davinder Gupta (PW 17), who treated her while lying in the P.G.I. as well as Dr. Viney Goel (PW 10), who conducted autopsy clearly establishes that death of Babli was due to shock resulting from the burn injuries. Thus, there is absolutely no doubt that Babli had died unnatural death on 9.8.1990 within seven years of her marriage, which took place on 6.5.1989.

1718. Dowry death has been defined in Section 304B, Indian Penal Code, which reads as under :

"Section 304B Dowry death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation. For the purposes of this subsection "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

A bare glance through the same leaves no doubt that if the death of a woman is caused by any burns or bodily injuries or occurs otherwise than under normal circumstances within seven years of her marriage and that she was subjected to cruelty or harassment by her husband or any relative of her husband soon before her death, such death shall have to be treated as dowry death. The explanation appended under subsection (1) further shows that the term ''dowry'' figuring in this section has the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. The provisions of Section 2 of the Dowry Prohibition Act read as under :

"2. Definition of "Dowry" In this Act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly

(a) by one party to a marriage to the other party to the marriage ; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."

xx xxx xxx

A bare glance through the above provisions leaves no doubt that the demand of husband or any person for any article or valuable security on the occasion of the marriage or later on shall be treated as dowry. The word ''soon'' before her death cannot be interpreted as just before her death, but these convey the sense of continuity. The word "soon" before her death is not defined in any statute. Its ordinary dictionary meaning in the context of provisions of Section 304B has to be taken into consideration. In Chambers English Dictionary (Edition 1990) the word "soon" has been defined as "immediately" or in a short time. The apex Court in Tulsi Ram v. State of Madhya Pradesh, AIR 1985 SC 299 interpreted the word "immediately" to convey reasonable despatch and promptitude, intending to convey sense of continuity rather than urgency while considering the import of expression "immediately" figuring in rule 9A of the Rules framed under the Prevention of Food Adulteration Act. The Court observed at p. 305 of the judgment as follows :

"The real question is, was the Public Analyst''s report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the court to send one of the samples to the Central Food Laboratory for analysis. If after receiving the Public Analyst''s report he never sought to apply to the Court to have the sample sent to the Central Food Laboratory, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice. Our conclusions on this question are : The expression "immediately" in R. 9A is intended to convey a sense of continuity rather than urgency. What must be done is to forward the report at the earliest opportunity, so as to facilate the exercise of the statutory right under Section 13(2) in good and sufficient time before the prosecution commences leading evidence. Noncompliance with Rule 9A is not fatal. It is a question of prejudice."

The above referred view was again followed and reiterated by the Apex Court.

The provisions of Section 113B of the Evidence Act raise a presumption as to dowry death. It reads as under :

"Section 113B. Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation. For the purpose of this section, "dowry death" shall have the same meaning as in Section 304B of Indian Penal Code (45 of 1860)."

A bare perusal of the above referred provisions leaves no doubt that if it is proved that a married woman had been subjected to cruelty or harassment soon before her death, by her husband or other relatives of the husband in connection with any demand of dowry, the Court shall presume that such person has caused her dowry death. Of course it is a rebuttable presumption but the onus would shift on the accused to rebut the same after the prosecution proves that such woman was subjected to cruelty or harassment soon before her death in connection with any demand or dowry by the husband or his relatives.

In the case in hand, the accused had examined Dr. Pami Singh, Consultant Psychiatrist (D.W. 6) in order to prove that the deceased was suffering from mental ailment and she had committed suicide on account of mental depression. The perusal of the evidence of Dr. Pami Singh reveals that he had treated the deceased in January, 1990 and a week thereafter as a patient suffering from border line mental retardation with depression. He has prescribed the medicine vide prescription slip Exhibit DE. During crossexamination he admitted that according to the record, Mst. Babli was first examined by a clinical Psychiatrist who noted down that this information was given by her motherin law. He further clarified that he examined her on 15.1.1990 and prescribed the tablets of sintamil. He further admitted that in the report dated 10.1.1990, the Psychiatrist had written that on the test itself, the patient was quite good and answered questions of addition and subtraction. Thus, the evidence of this doctor is not sufficient to prove that the deceased was suffering from mental retardation with depression, because there was no such positive diagnosis of the Psychiatrist. On the other hand, the Psychiatrist has based his history on the basis of statement given by her motherinlaw. Thus, the testimony of Jagiri Lal PW 12 (father) and Raj Kumar PW 14 and Ashwani Kumar PW 7 (brothers) that she was not suffering from any ailment is wholly reliable. Consequently, the accusedappellants had failed to dislodge the presumption of dowry death of Mst. Babli against them.

The question then arises whether case of Mst. Koshalya motherinlaw of the deceased is distinguishable from that of her husband Harbans Lal. In this regard, it is noteworthy that suggestion of the learned defence counsel to Ashwani Kumar PW 7 that Mst. Koshalya used to reside separately with her son Shyam Lal and not with Harbans Lal coaccused, was refuted by this witness. During her statement recorded under Section 313, Criminal Procedure Code Mst. Koshalya simply alleged that she along with Kashmiri Lal used to reside separately from her son Harbans Lalaccused. Strangely enough, this fact was not got proved from Kamal Singh Sodhi (DW 1) ; Balbir Singh (DW 2), although they happened to be residents of Balachaur where these accused also resided, only Raghubir Singh Lambardar (DW 7) supported the version of Koshalya in this regard. Strangely enough, Koshalya accused had failed to produce any rationcard or voters'' list in support of her contention that she used to reside with her another son Sham Lal. Moreover, her separately residing from her son Harbans Lal accused would be of no consequence, especially when there is positive evidence of the father and brothers of the deceased that she along with her son Harbans Lal had put up a demand of Rs. 50,000/ at the outset which was satisfied by Raj Kumar, P.W. 14 on 20.7.1990 and thereafter she had put up another demand of Rs. 50,000/. Thus, there is no escape but to conclude that she was also harassing the deceased on the failure of her parents and brothers to satisfy her demand of Rs. 50,000/.

For the reason recorded above, there is no escape but to dismiss both the appeals preferred by the appellants and upheld the orders of the trial Court qua their conviction and sentence. It is ordered accordingly.

JUDGMENT accordingly.