Rajinder Kumar vs State of Haryana

J.B. Garg, J.

Rajinder Kumar husband of the deceased, Harish Kumar and Durgesh Kumar his two brothers and Kailash Rani, the mother have been convicted for an offence u/s 304B of the I.P.C. by Shri Pritam Pal, Additional Sessions Judge, Yamuna Nagar on 13.7.1992. Out of them, Rajinder Kumar, the husband has been sentenced to imprisonment for life and two brothers and the mother to R.I. for a period of seven years each. Aggrieved against it, the present appeal has been attempted.

Briefly, the facts as alleged are that Rajinder Kumar, a resident of Yamuna Nagar was married to Sunita alias Pinki on 3.7.1991. The husband wanted that Sunita should bring a sum of Rs. 20,000/ from her parents and brothers and that she should also arrange the transfer of a shop belonging to her parents so that the husband could run his own business. On 25.8.1991, Sunita had come to the house of her brother Suresh Kumar in Bishan Dass Colony, Yamuna Nagar to apprise her brother about the aforesaid demand. Her brother accompanied his own wife who wanted to go to her own parents for the purpose of tying Rakhi and while they were returning, Suresh Kumar, the brother came to know that his sister Sunita alias Pinki had set herself on fire by sprinkling kerosene oil. Sunita was taken to the Civil Hospital, Yamuna Nagar. Shri Des Raj A.S.I. arrived there and he recorded the statement of Sunita who had more than 90% burns which ultimately took the form of a dying declaration. The statement was dispatched to Police Station, Yamuna Nagar where the formal F.I.R. was recorded at 12.30 p.m. and a copy thereof was delivered to the Ilaqa Magistrate at 4.00 p.m. Sunita died on account of the aforesaid burns.

P.W. 5 Dr. Prem Chand, Medical Officer of Civil Hospital, Yamunanagar alongwith another Medical Officer conducted the postmortem examination on 26.8.1991. He found that there was smell of kerosene oil coming out of the body and the burns were superficial to deep all over the body and were 100% . Right and left lungs, pharyx and stomach were congested and the cause of death was shock on account of burns. He clarified that the burns were present all over the body.

P.W. 6 Dr. S.K. Gupta, Medical Officer, Civil Hospital, Yamunanagar deposed that at 11.30 a.m on 25.8.1991 he conducted the medicolegal examination of Sunita d/o Prem Chand w/o Rajinder aged 22 years and she was conscious. There was smell of kerosene oil and her bloodpressure and pulse could not be recorded. Synging of hairs, eyelashes, eyebrow, tongue and nasal mucous were reddish. Fingers of both the hands were charred. The injuries were dangerous to life. He has denied that the time given in the ruqa Ex.PK was changed from 11.30 p.m. to 11.35 p.m. He has especificially deposed that the dying declaration Ex.P8 was recorded by Shri Des Raj A.S.I. in his presence and his own endorsement on the dying declaration was Ex.RA/2. He has denied that the declaration was not recorded in his presence . He has stated that because the patient was responding to the oral querries, he declared her fit to make the statement.

P.W.1 Harbans Singh, A.S.I. recorded the formal F.I.R. Ex.PA/1 on receipt of the statement of Sunita.

PW2 Om Prakash Draftsman prepared the site plan Ex.PB.

PW3 Bishamber Dass took the photograph Ex.P1 to P5 and the corresponding negatives are ExsP.6 to P.10. PW4 Inderjeet Constable carried the F.I.R. No. 362 dated 25.8.1991 from PoliceStation, City Yamunanagar to the Ilaqa Magistrate and it was delivered at 12.30 p.m. at his residence because it was a holiday.

PW7 Suresh Kumar is a brother of the deceased and he has described that his sister Sunita was married recently with Rajinder Kumar on 3.7.1991 or in other words, only seven weeks prior to the occurrence. She had come to his house on 25.8.91 which was the day of ''Rakhi'' festival. She had been telling that Rajinder Kumar her husband had been demanding a sum of Rs. 20,000/ allegedly for the purpose of opening a new shop and besides that a shop which belonged to the complainant and was situated near the bypass camp at Yamunanagar. In the early part of the day this Suresh Kumar himself accompanied his wife to the house of her parents where she was to tie Rakhi to her brothers and while returning on the way a cartdriver conveyed to him that Sunita had burnt herself and was admitted in the hospital at Yamunanagar. He immediately reached the Civil Hospital and saw Sunita with burns. His statement was recorded by the Police in the premises of the hospital itself and Sunita succumbed to the burn injuries at 4.00 p.m. He has also described that at the time of marriage many important articles such as Sofa Set, Fridge, Double beds, Cooker, utensils, ornaments etc. were given to Sunita. He has also told that the police arrived at after his arrival and thereafter, the statement of Sunita was recorded.

PW8 Mamta is the wife of Suresh Kumar and she has said that Sunita told her that she was given beating by her husband and he was demanding a sum of Rs. 20,000/ besides the shop and while she herself was returning with her husband from the house of her parents after tying Rakhi information was received about the occurrence and she also proceeded to Civil Hospital, Yamunanagar where Sunita was found with burns. She has said that the police was already in the hospital.

PW9 Parveen Kumar was a witness to the recovery memo Ex.PO which pertained to taking into possession of a can containing the residual kerosene oil, one bucket, one matchbox and some pieces of the burnt clothes of the deceased.

PW10 Des Raj A.S.I. received the ruqa ex.PK from Civil Hospital, Yamunanagar. He then recorded D.D.R. No. 10 at 11.40 p.m and along with Bhag Singh constable, proceeded to the Civil Hospital, Yamunanagar and after obtaining the opinion of the Medical Officer, recorded the statement of Sunita who had centpercent burns and the chances of her survival were remote and it was not feasible to arrange the presence of a Judicial Magistrate and he himself recorded the statement of Sunita and it bears attestation of Dr. S.K. Gupta.

Rajinder Kumar son of Jagan Nath aged 21 years, accused a shopkeeper was examined Under Section 313 of the Code of Criminal Procedure and he has said that on 24.8.1991, at about 4 p.m., he accompanied his wife Sunita to the house of his inlaws and after leaving Sunita there, he returned the same evening. It was on the following day, i.e. 25.8.1991 at 11.30 p.m. that he came to know that Sunita had committed suicide by putting kerosene oil on her body. When he went to the Civil Hospital, Yamunanagar, he was arrested by the police along with the members of his family and that he was innocent. In earlier part of the statement, he denied having made a demand of Rs. 20,000/ from his inlaw through his wife. The statements of the other accused were that they have been falsely implicated at the instance of Suresh Kumar.

DW1 Gian Chand, Halwai of Yamunanagar has said that one of his shops was on rent with Rajinder Kumar at the rate of Rs. 300/ per month and he had been doing retail sale of Karyana articles. However, it was vacated two weeks after the occurrence. D.W.2 Darshan Lal, D.W. 3 Ram Parshad have deposed that they never came to know of any demand by Rajinder Kumar, the husband or about the alleged harassment of Sunita.

The learned counsel for the appellants and learned counsel for the respondent have been heard and record also perused. It shall be useful to reproduce the statement of Sunita alias Pinki which was recorded by Shri Des Raj A.S.I. in the premises of the General Hospital, Yamunanagar at 12.00 noon on 25.8.91 and was despatched to Police Station, Yamunanagar at 12.15 p.m. and it is as under :

"About 2 months ago, I was married to Rajinder Kumar resident of Refugee Camp, Yamunanagar. My inlaws including my husband Rajinder Kumar, motherinlaw, Devar (husband''s younger brother) Rishi and Jeth (husband''s elder brother), used to harassment and ask me to bring money from my parental house in order to get a shop opened for Rajinder Kumar. They daily used to ask me to bring money and used to give me beatings also. I had assured them that I would bring money from my (parental) house. After coming to my parental house, I narrated the whole incident to my Bhabbi (brother''s wife). My Bhabbi replied that they did not have money to give. Today, I had come to meet my family members at my (parental house). Being fed up from my inlaws, I set myself on fire after sprinkling kerosene oil from a can (oil container) on me, in the bathroom of my parental house. I have done so out of harassment from my husband. My inlaw''s people used to ask me to go to my parental house."

Attested

Sd/ Des Raj, A.S.I.

P.S. City, Yamunanagar.

(In English)

25.8.91

Sd/ Sunita

(With her right thumb impression.)

Sd/ Sunita

(With her right thumb impression.)

Statement given in my presence.

.......Sd/ Dr. S.K. Gupta.

Sd/ Dr. S.K. Gupta,

General Hospital,

Yamunanagar 25.8.91.

at 12.00 Noon.

PW7 Suresh Kumar has deposed that his cousin Anil Kumar got Sunita admitted into the hospital but the learned counsel for the appellant has pointed out that the signatures of Suresh Kumar appear on the MLR of Sunita Ex.PJ. This does not weaken the case of the prosecution in any manner may be that Suresh Kumar had arrived from the house of his inlaws by the time the MLR was recorded and completed by the Medical Officer.

A perusal of the evidence referred to above shows that it was clearly a case of cruelty and harassment with the purpose and object of demand of dowry. The husband was specifically demanding Rs. 20,000/ and also a vacant shop and Sunita has specifically mentioned in the aforesaid statement that she was fed up from inlaws and as regards setting herself on fire she was specifically described that she has done so on account of harassment from her husband.

PW10 Shri Des Raj, A.S.I. the investigating officer has satisfactorily explained that because Sunita had almost centpercent burns and the chance of her survival was remote and it was not feasible to arrange the presence of a Judicial Magistrate. He himself recorded the statement of Sunita alias Pinki wife of Rajinder Kumar in Hindi in the premises of the hospital and this has attestation from Dr. S.K. Gupta, Medical Officer of General Hospital of Yamunanagar. This medical officer has also supported the fact that Sunita made the statement in his presence and it was recorded by Shri Des Raj, A.S.I. He has specifically deposed that he enquired the name of the patient which she told him. The Medical Officer has clarified that he obtained the impression of toes of the left foot of the patient, because the right thumb of the patient was partly charred.

Mr. Baldev Singh the learned counsel for the appellant contends that as Mrs. Sunita had committed suicide at the house of her brother and not in her inlaws'' house the offence would at the most amount to abetment of suicide falling under Section 306 of the Indian Penal Code and not under Section 304B of the Indian Penal Code. To appreciate this contention of the learned counsel it would be worthwhile to reproduce the provision of Section 304B of the Indian Penal Code, which reads 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 the death.

Explanation: For the purpose of this subsection, "dowry" shall have the same meaning in Section 2 of the Dowry Prohibition Act, 1991.

(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."

This Section was inserted in the Indian Penal Code by the Dowry Prohibition Act, 1986 with a view to restrain the increasing menace of dowry deaths. In order to attract the provisions of Section 304B of the Indian Penal Code the following ingredients should be satisfied :

"(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 seven years of her marriage;

(3) she must have been subjected to cruelty or harassment by her husband or any relative of her husband soon before her death;

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

Thus, the death of a woman in her inlaws'' house or in the house of her parents or brother is not the essential ingredient of the dowry death.

Section 113B of the Evidence Act also inserted in the Evidence Act vide the Dowry Prohibition Amendment Act, 1986 raising a presumption to dowry death, reads as under :

"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 woman 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 the Indian Penal Code."

In the above referred provision also there is no indication regarding the un natural death of a woman having taken place at her parents'' house or at her inlaws'' house.

In the case in hand, Mrs. Sunita was turned out of her matrimonial house by her husband as she failed to fetch Rs. 20,000/ from her brother. Thereafter, she came to the house of her brother Suresh Kumar (PW7) and narrated the incident to him and the latter''s wife Mst. Mamta (PW8), Suresh Kumar along with his wife left for his inlaws'' house as the latter wanted to perform Raksha Bandhan. In their absence Mst. Sunita committed suicide by setting on fire after sprinkling kerosene oil as per her dying declaration. Thus, the above referred harassment meted out by the husband on the morning of occurrence was part of the same transaction which forced Sunita to commit suicide. Obviously the harassment was soon before her death.

The apex Court in Smt. Shanti and another v. State of Haryana, 1991 Supreme Court Cases (Cri) 191 while dealing with the import of provisions of Sections 304B and 498A of the Indian Penal Code coupled with the provision of Section 113B of the Evidence Act and definition of dowry figuring in Section 2 of the Dowry Prohibition Act, 1961 in para No. 5 of the judgment observed that a case of suicide would be considered to be death which had occurred under innatural circumstances and thus, the provision of Section 304B of the Indian Penal Code would be attracted in such like situation. Consequently, there is no escape but to hold that Rajinder Kumar husband of the deceased had committed the offence of dowry death punishable under Section 304B of the Indian Penal Code. However, keeping in view the circumstances of the case his sentence is reduced to seven years'' rigorous imprisonment as there is no justification to impose the maximum penalty of life imprisonment provided under this Section.

The case of Harish Kumar, Durgesh Kumar, the brother of the husband and Kailash Rani, the motherinlaw of the deceased, however, stands on different footing as towards the end of dying declaration the deceased had stated having committed suicide on account of harassment of her husband although in its earlier part she had levelled general allegations of harassment and torture against all the accused appellants. Consequently, giving these appellants the benefit of doubt by way of abundant caution they are ordered to be acquitted by accepting their appeal and setting aside the order of conviction and sentence.

Consequently, the appeal of Rajinder Kumar appellant fails except to the extent of reduction in sentence stated above while the appeal of other appellants succeeds.