Naresh Kumar vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal filed by Naresh Kumar husband, Laxman Dass, fatherinlaw and Darshana Devi, motherinlaw, of deceased Shoba Devi, and has been directed against the judgment dated 10.3.1998 and order dated 11.3.1998, passed by the Court of Additional District and Sessions Judge, Rewari, who convicted the appellants u/ss 304B and 498A, I.P.C. and sentenced them to undergo R.I. for a period of 10 years u/s 304B, I.P.C. and to pay a fine of Rs. 5,000/ in default of payment of fine, each of the appellants was further directed to undergo R.I. for one year. The appellants were further sentenced to undergo R.I. for a period of 2 years each u/s 498A, I.P.C. and to pay a fine of Rs. 500/ in default of payment of fine, each of the appellants was further directed to undergo RI for three months. The trial Court also held that both the substantive sentences shall ran concurrently.

The brief facts of the case are that Ganga Deen son of Birbal, caste Brahmin, resident of village Sunderoj, was employed in the Haryana Roadways at Rewari Depot and was working as a Clerk. He had two sons and one daughter; namely Shoba Devi, aged 20 years, who was married with Naresh Kumar, appellant, on 22.1.1991, as per Hindu rites and ceremonies, wherein sufficient dowry was given. The parents of Naresh Kumar, appellant, were not happy with dowry articles and they used to harass Shoba Devi. About 10 days prior to the occurrence, Shoba Devi had visited the house of her parents and had disclosed that her husband and parentsinlaw used to torture her on account of demand of dowry and they were demanding Rs. 50,000/; otherwise had asked her to stay at the house of her parents. On 16.9.1992, when Ganga Deen accompanied by his relative Chhailu Ram, went to the house of Laxman Dass, Laxman Dass and his son Naresh Kumar were present in the house. They asked him if he had brought a sum of Rs. 50,000/. On this, Ganga Deen assured them to pay a sum of Rs. 25,000/ within a period of about 20 days and returned to his house leaving Shoba Devi in the house of her inlaws. On 24.9.1992, at about 12 noon Krishan Kumar informed him that Shoba Devi had consumed poison. Ganga Deen, then accompanied by Krishan Kumar went to the house of the appellants where Shoba Devi had disclosed them that the appellants used to harass her on account of demand of dowry and finding no way, she had consumed poison. Shoba Devi was taken to General Hospital, Rewari where she died. On receiving the ruqa from the hospital regarding the death of Shoba Devi in the police station, City Rewari, Arjun Singh, ASI, went there and recorded the statement of Ganga Deen and after making his endorsement underneath the same, sent it to the police station where formal F.I.R. was registered. The I.O., then, prepared the inquest report and request for postmortem examination in order to conduct the postmortem examination. He also visited the place of occurrence, prepared the rough site plan and during the course of spot inspection found a letter alleged to have been written by the deceased and it was taken into possession vide separate recovery memo.

During the course of postmortem examination on the dead body of Shoba Devi, viscera was also collected and sealed into a parcel, which was sent to the office of the chemical examiner. Further investigation was conducted by Ram Singh, Inspector, who arrested Laxman Dass on 25.9.1992 and Naresh Kumar on 8.10.1992. During investigation, scooter No. HR362615 was also produced by Laxman Dass, which was taken into possession. Darshana Devi, accused, was also arrested on 8.10.1992. The case property was deposited with the MHC and on the completion of the investigation of the case, challan was presented u/ss 304B, 498A, I.P.C. against the appellants in the Court of the Area Magistrate, who supplied the copies of the documents and vide commitment order dated 5.12.1992 committed the accused to the Court of sessions.

The learned Addl. Sessions Judge vide his order dated 7.1.1993, charge sheeted the appellants u/s 304B and Section 498A, I.P.C. The charges were read over and explained to them to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined PW1 Constable Suresh Chand, who delivered the special report to the Area Magistrate, PW2 Dr. R.N. Yadav, who conducted the postmortem examination on the dead body of the deceased. In the opinion of this doctor, the cause of death was deferred till the receipt of the report of the chemical examiner. Ex.PA is the post mortem report. On receipt of the report of the chemical examiner, in which the cause of death was declared as Aluminium Phosphide poisoning, this doctor opined that this poison was responsible for the death of Shoba Devi. ASI Dharam Singh, PW3, received the ruqa, Ex.PF and recorded the formal F.I.R., Ex.PF/1. PW4 Ganga Deen is the complainant and father of the deceased, and I will deal with his statement in the subsequent portion of this judgment. PW 5, Krishan Kumar, uncle of the deceased supported the case of PW4. Dr. R.A. Gupta, PW6, proved Ex.PK, by deposing that on 24.9.1992, he admitted the patient Shoba Devi in the casualty department. PW7 Dr. Y.P. Singh declared the deceased as dead on 24.9.192. PW8 Chhailu Ram is uncle of the deceased and regarding motive he has deposed against the accused. I.O. Arjun Singh, ASI, appeared as PW9, and the second I.O. Ram Singh, Inspector, appeared as PW10. The report of the chemical examiner, Ex.PD, was also tendered into evidence.

On the closure of the prosecution evidence, the statements, of the accused were recorded u/s 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and the plea of Darshana Devi and Laxman Dass was as follows :

"I am innocent. We have falsely been implicated in this case. We never made any demand of dowry nor harassed or tortured Shoba Devi on any account."

The defence taken up by Naresh Kumar before the trial Court was as follows :

"I am innocent. I have falsely been implicated along with my coaccused. We have not made any demand of dowry nor harassed Shoba Devi on any account. As soon as we came to know about the incident, I along with my mother rushed back to Rewari. I am the only son of my parents. Myself and Shoba Devi wanted my father to open a separate shop for me but my father expressed his inability and this gave rise to the quarrel between myself and my parents. Shoba was depressed on this account and she was a lady of a very sensitive nature."

When called to enter defence, the accused examined DW1 Bhagwat Dayal, who supported the defence of the accused by stating that no demand of dowry was ever made by the accusedparty and that the deceased was treated very nicely in the house of her inlaws.

The learned trial Court relied upon the prosecution story in its entirety and convicted and sentenced the appellants in the manner as stated above. Aggrieved by the said judgment and order, the present appeal.

I have heard Mr. R.S. Ghai, Senior Advocate, on behalf of the appellants and Mr. J.S. Ahlawat, Advocate, for Haryana State and with their assistance have gone through the record of this case.

Section 304B I.P.C. lays down as follows :

"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 purpose of this subsection, "dowry death" 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 perusal of the above Section would show that in order to succeed, the prosecution has to prove the following facts :

"(1) That the death of the woman took place due to burns or bodily injury or otherwise than under normal circumstances;

(2) That such death had occurred within 7 years of her marriage;

(3) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband; and

(4) That such cruelty or harassment should be for or in connection with demand of dowry."

As per Explanation of Section 304B, I.P.C., "dowry death" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961)

Along with Section 304B, it will be useful for me to make a mention about Section 113B, Indian Evidence Act, which lays down that 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.

Here I will also like to deal with Section 498A, I.P.C. As per this Section 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. Cruelty has also been explained in this very section which 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, limb or health (whether mental or physical) of the woman; or 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.

In the present case, it is proved that the death of Shoba Devi had taken place within 7 years of her marriage. It has also been proved that she died under abnormal circumstances. The cause of death was Aluminium Phosphide. The point which survives for determination is whether the deceased was subjected to cruelty or harassment in connection with the demand of dowry and if so by whom and for the purposes of Section 498A, I.P.C., whether some harassment was caused to the deceased so as to meet any unlawful demand for any property or valuable security.

The learned counsel for the appellants has tried to make out a case of suicide on the part of the deceased and in support of his contention, counsel for the appellants has invited my attention to Ex.P1, which was found from the place of occurrence and on which reliance has been placed by the prosecution also. The counsel read out the contents of this letter in detail and in verbatim and submitted that from this letter, the only conclusion which can be drawn is that there were strained relations between the father and son and for that reason there was unhappiness in the family of the deceased and the deceased herself was worried in this regard. She wrote a letter clearly indicating that her husband was not happy with the matrimonial affairs in the house and at one point of time he left the house of his own accord with a clear understanding given the deceased that he would not return to the house. The learned counsel submitted that the deceased had complained to her father about the surcharged atmosphere which was going on in the family and the probability cannot be ruled out that the deceased might have committed suicide in order to put the curtains for all times to come upon her life so as to get relieved of the tension and the surcharged atmosphere which was going in the family.

On the contrary, the counsel for the learned State counsel is that the letter, Ex.P1, does not advance the case of the defence in view of the direct evidence of father and other relatives who have categorically deposed that the deceased was not happy in the house of her inlaws and whenever she came to the house of her parents, she used to complain that the accused wanted Rs. 50,000/. The counsel submitted that even from the letter, it appears that there was some tiff between the father and son and in order to see that her husband may remain happy, the deceased must have requested her parents to pay a sum of Rs. 50,000/ so that her husband may become separate from his father. This demand was actually made to the parents of the deceased and this would amount to harassment and a demand in connection with dowry. Resultantly, all the accused should be convicted u/s 304B, I.P.C. r/w Section 498A, I.P.C. The State counsel has adopted all the reasons given by the learned trial Court in convicting and sentencing the appellants.

I have considered the contentions raised by the counsel for the parties and I am of the considered opinion that the case of two appellants; namely, Laxman Dass and Darshana Devi, is distinguishable on the face of it even if all the allegations of the prosecution are taken on its face value and if examined on the touchstone of probability. Ganga Deen, father of the deceased, is a material witness in this case. His statement can be quoted as follows :

"My daughter Shoba Devi was married on 22.1.1991 with accused Naresh Kumar son of Laxman. On return my daughter had told me that her motherinlaw had said to her that according to information of the neighbours, they were expecting dowry articles worth Rs. 5,00,000/ but she had not brought the dowry articles according to their expectation. After one month of the marriage, I had sent my son Nawal Kishore to bring my daughter Shoba Devi. My daughter told me her inlaws were unhappy as she had not brought washing machine and so I had bought a washing machine for her. My son also told me that my daughter was not happy and was saying that she was in great grief. On the occasion of Teej, I had myseslf gone to my daughter. I had given a Sari each for my daughter, her Nanad (sisterinlaw), motherinlaw, 5 kgs. sweets and a cash amount of Rs. 551/ and had advised motherinlaw of my daughter that my daughter should not be harassed. On 18.11.1991, my son inlaw had come to the marriage of my son, on the date of departure of Barat and I had given to him one golden chain and a sum of Rs. 5100/ on the occasion of Bar Rukai, but it appeared that my soninlaw was not happy and he had left and had not gone with the marriage party."

This part of the statement of Ganga Deen is nothing but a sheer improvement. If the allegations of the prosecution are examined, the only grouse of the complainant was that there was a demand for Rs. 50,000/ and in this regard the statement of Ganga Deen was as follows :

"On 14.9.1992, my daughter had come to me. She started weeping and had showed marks of beating on her body and requested me that she should be allowed to live with me as she was being harassed by the accused. She also told me that her motherinlaw was taunting her that she had come from a poor family and it is their bad luck and her fatherinlaw told her that she should be given as much beating as possible and her motherinlaw had asked her to bring a sum of Rs. 50,000/ from me and her fatherinlaw had also stated that she would bring as much dowry as she is beaten. At this, I had called Chhailu Ram, fatherinlaw of my sister and I had told him all the facts and then on 16.9.1992, myself, Chhailu Ram and my daughter Shoba Devi went to the house of accused Laxman Dass. All the three accused were present there. Laxman Dass and accused Naresh asked me whether I had brought Rs. 50,000/ as he had to start a shop. I told them that so far I have not been able to arrange the money, but I would be able to arrange a sum of Rs. 25,000/ after 20 days. My daughter had called me aside and told me that I must arrange the money otherwise they would kill her. After giving the accused an assurance to pay Rs. 25,000/, myself and Chhailu Ram had returned."

The truth must come out from howsoever one may try to conceal. So far as the beating aspect is concerned, there is no material on record that the deceased was ever given beatings, etc. With regard to the demand of Rs. 50,000/ the case of the prosecution which has come from the statement of Ganga Deen is that the accused party wanted Rs. 50,000/, for the benefit of his soninlaw so that he may be able to run a shop. If the contents of the letter, Ex.P.1, are read in the light of this demand, everything will become clear. There was a tiff between the father and son. Perhaps, the son wanted to start a separate business and for this reason he must have impressed upon his wife to arrange a sum of Rs. 50,000/ from the house of her parents so that he may be able to start his business. In this regard, the deceased must have requested her father to part with a sum of Rs. 50,000/ so that she may be able to live comfortably in the house of her husband. In these circumstances, fatherinlaw and motherinlaw will not be the beneficiary if the husband starts a shop with the aid and finance given by his fatherinlaw. We all know that when a woman dies within a span of seven years in the house of her inlaws, the relations between the parties become strained. It will be always expected of the parents of the deceased to implicate all the members of the family of the husband so that they can be taught a lesson. The Courts of law in such cases, go by probabilities. Even the statement of PW8 Chhailu Ram, can be quoted with advantage, which will strengthen the opinion of this Court that the demand must have been made by accused Naresh. As per the statement of Chhailu Ram "Ganga Deen and his daughter had told me all the facts. Accused Naresh asked Ganga Deen in my presence that he had to start a separate shoop and so he should arrange a sum of Rs. 50,000/ for him."

The above statement of Chhailu Ram clearly brings out the implication of fatherinlaw and the motherinlaw. It is settled principle of law that the benefit of reasonable doubt had to go to the accused and not to the prosecution.

In this view of the matter, the case of two appellants namely, Laxman Dass and Darshana Devi has become distinguishable from their coaccused Naresh Kumar. They stand acquitted of the charges framed against them. So far as the appeal of Naresh Kumar is concerned it is hereby dismissed as the prosecution has been able to prove all the three essential ingredients of Section 304B, I.P.C. as well as Section 498A, I.P.C. r/w Section 113B, Indian Evidence Act.

Faced with this difficulty, the learned counsel for the appellants submitted that the sentence awarded to Naresh Kumar is excessive.

I am of the opinion that the ends of justice will suffice if the substantive sentence of Naresh Kumar u/s 304B, I.P.C., is reduced to seven years and I order accordingly. So far as the sentence awarded to him u/s 498A, I.P.C. is concerned, it is not disturbed. The imposition of fine is also not disturbed qua Naresh Kumar. Both the sentences awarded to Naresh Kumar shall run concurrently.

The net result is that the appeal of the appellants Laxman Dass and Darshana Devi, succeeds while the substantive sentence of Naresh Kumar stands reduced to 7 years u/s 304B I.P.C.

JUDGMENTed accordingly.