Rajinder Kumar Raju vs State of Haryana

K.C. Puri, J.—Rajinder Kumar alias Raju-Appellant has directed the present appeal against the judgment 1.3.1999 and order dated 4.3.1999 passed by Shri V.S. Malik, learned Additional Sessions Judge, Jagadhri, vide which accused/Appellant has been convicted u/s 304-B, of the Indian Penal Code ( in short - the IPC ) and sentenced to undergo rigorous imprisonment for a period of seven years.

Briefly stated, the facts of the case are that Subhash Chand made a complaint that three years prior to his making the complaint, he married his daughter Mamta with Rajinder Kumar accused, resident of Rani Bhag Sakur Basti, Delhi. His daughter remained at her matrimonial home at Delhi for 1� years. Thereafter, it became evident to the complainant that his son-in-law - accused Rajinder Kumar had sold his property at Delhi and had wasted the sale proceeds. The accused told the complainant that he was left with no business at Delhi and had asked the complainant to give him his house at Yamuna Nagar for his residence. He also asked the complainant to take a shop for him so that he could work there. While staying at Delhi after his marriage, the accused borrowed a sum of Rs. 50,000/- or Rs. 60,000/- from Anil Luthra, brother-in-law of the complainant. To help his daughter to settle down, he allowed his daughter and son-in-law to occupy his house at Yamuna Nagar. He also took a shop in the premises of Gauri Shankar Mandir at Jagadhri on rent and had put goods worth Rs. 35,000/- in that shop so that the accused could earn his livelihood by doing business there. Losses were shown by Rajinder Kumar in the business at that shop also. He had sold two gold bangles of the wife of the complainant, which the accused took from her and had also spent the price of those bangles. The complainant was bearing the domestic expenses of the accused for the last 1� years. In December 1996, complainant met with an accident and on account of financial constraints, he could not pay for running the kitchen of the accused. 15 to 20 days prior to the making of this complaint, the accused came to him at Paonta Sahib with Mamta and asked him to transfer the house at Yamuna Nagar in his name. The complainant had put off the matter by saying that the house still belongs to the accused because he was not to pay any rent for the same. The accused however, kept harassing Mamta for getting the house transferred in his name. Besides it, the accused borrowed a sum of Rs. 15,000/- from his relative namely Subhash Chand son of Daryai Lal resident of Gandhi Nagar, New Delhi. Rajinder accused could not return any amount which he borrowed.

It has been further alleged by the complainant that on 15.4.1997 his brother Darshan Lal informed him on telephone that Mamta had been burnt, therefore, he reached Yamuna Nagar and came to know about the incident. He then reached PGI Chandigarh where he found that his daughter Mamta had died on account of burns. Claiming that Rajinder Kumar had demanded dowry again and again, and had burnt Mamta on account of non-fulfillment of his demands, Subhash Chand made a statement to Raj Pal Singh ASI at PGI Chandigarh. On this statement Raj Pal Singh ASI, made his endorsement and sent the same to Police Station Yamuna Nagar, where the case was registered.

Mamta was brought to Civil Hospital Yamuna Nagar on 15.4.1997. No surgeon was available at hospital so Mamta was referred to Civil Hospital, Jagadhri and from Civil Hospital, Jagadhri, she was referred to PGI, Chandigarh. About admission of Mamta to PGI, Chandigarh, ruqa was sent on which Karam Chand SI of Police Station Sector 11, Chandigarh came there and sought opinion of the doctor about fitness of Mamta to make a statement. She was declared unfit to make statement. Mamta died at 3 p.m. on 15.4.1997. Inquest papers were prepared and post mortem examination of the dead body was conducted and found the deceased to have sustained 75 to 80% burns, which were deep on the chest, face and hands and the death was due to burns. Statements of Darshan Lal and other witnesses were recorded. Dead body was handed over to the complainant. Accused was arrested at Jagadhri bus stand on 16.4.1997. Inspector Arun Singh visited the spot on 17.4.1997 and recovered a stove, its loose cap, burnt pieces of clothes, match box, semi burnt sticks of the match box, chappal of the deceased from the kitchen of the house. These were converted into parcel and were sealed. Rough site plan of the place of occurrence was prepared. After investigation, challan was presented against the accused.

Copies of documents were supplied to the accused. A, charge u/s 304-B, IPC was framed against the accused by the trial Court, to which he pleaded not guilty and claimed trial.

In order to prove its case, prosecution examined Dr. Ramesh Singal (PW-1), Dr. Anil Malik (PW-2) Constable Suresh Kumar (PW-3), HC Bhag Singh (PW-4), Constable Pala Ram (PW-5), Constable Mulkh Raj (PW-6), Dr. J.R. Chauhan (PW-7), Darshan Lal (PW-8), Subhash Chand (PW-9), Darshan Lal Verma (PW-10), ASI Tara Singh (PW-11), SI Karam Chand (PW-12), ASI Raj Pal (PW-13), Inspector Arun Singh (PW-14) and closed the evidence of the prosecution.

The accused was examined u/s 313 Code of Criminal Procedure. He admitted his marriage with Mamta on 24.4.1994. He also admitted that she lived with him at Delhi for 1� years after the marriage. He has also admitted that he could not run his business properly and so he sold the same. He has denied that he was compelling Mamta to borrow money from Subhash Chand and Anil Kumar and that he borrowed sums of Rs. 50,000/- and Rs. 15,000/- from them. He denied all other allegations and pleaded his innocence. He, however, did not lead any evidence in defence.

The learned trial Court, after hearing the learned Counsel for the parties, convicted and sentenced the accused/Appellant vide judgment dated 1.3.1999 and order dated 4.3.1999, as aforesaid.

Feeling dissatisfied with the aforesaid judgment and order, the Appellant has preferred the present appeal.

I have heard learned Counsel for the parties and have gone through the records of the case.

Learned Counsel for the Appellant has submitted that to prove the ingredients of offence u/s 304-B, IPC, the prosecution is required to prove the following ingredients:

(i) death of a woman is caused by any burns or bodily injuries or occurred other than under normal circumstances.

(ii) the death has taken place within the period of seven years of her marriage. And

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

It is contended that the prosecution has been able to prove the only ingredient that the death of Mamta has taken place within seven years of her marriage. It is further contended that the prosecution has not been able to prove the other two ingredients. The death, although, has taken place other than in normal circumstances by burn injuries but that burn injuries were received by Mamta in an accidental fire.

It is further contended that the most essential ingredient of death of the woman on account of demand of dowry articles is missing on the facts of the present case. Even if whole of the allegations made by the prosecution are taken as a gospel truth in that case it cannot be said that Mamta deceased was subjected to cruelty by the Appellant in connection with demand of dowry articles, much-less soon before her death.

Darshan Lal (PW-8) has simply stated that mother of Mamta was visiting her every month for paying her for grocery. Subhash Chander (PW-9), star witness of the prosecution, in the FIR has simply stated that Rajinder Kumar accused was staying at New Delhi. Rajinder Kumar sold his business as he could not succeed. Appellant compelled her to borrow money from Subhash Chander and Anil Kumar, brothers-in-law of the complainant. He has also stated that he gave his house at Yamunanagar to his daughter Mamta and accused Rajinder Kumar for living. Rs. 35,000/-was spent by the complainant for opening the shop for Rajinder Kumar-accused. After 2-3 months, he sold the goods of the shop. He has further stated that Rajinder Kumar wanted that house be transferred in his name. So, it is contended that the above said allegations are wrong in connection with demand of dowry articles.

It is further submitted that Mamta has stated to be declared unfit to make statement but that doctor has not been examined, which creates doubt in the prosecution story.

Learned State counsel has supported the judgment of the trial Court.

I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case.

So far as death of Mamta has taken place within seven years of her marriage that fact has not been disputed during the course of trial and even during the course of arguments in the present appeal. The submission made by learned Counsel for the Appellant that Mamta died due to accidental fire is also not proved. However, the fact remains that it stands proved that death of Mamta has taken place due to burn injuries which are other than under normal circumstances. So, the first two ingredients of offence were proved beyond reasonable doubt.

The main question for determination in the present appeal is whether the prosecution has been able to prove that soon before death Mamta deceased was subjected to cruelty at the hands of Appellant her husband for demand of dowry articles or in connection with demand of dowry articles. As per Darshan Lal (PW-8) mother of Mamta deceased visiting her every month and was praying for her groceries. As per testimony of Subhash Chand (PW-9) father of the deceased-Mamta. After marriage, for 1� years Mamta and her husband lived at Rani Bhag Sakur Basti, Delhi. Rajinder Kumar sold away his business as he could not succeed and borrow money from the brother-in-law of Subhash Chand i.e. Rs. 50,000/- from Anil Kumar and Rs. 15,000/- from Darshsn Lal (Saddu of PW-9). He has further stated that at the instance of Mamta he gave his house at Yamunanagar to Mamta and Rajinder-Appellant and also arranged shop by spending Rs. 35,000/- but that shop articles were also sold by the Appellant. The household expenses were also used to be paid by complainant Subhash Chander (PW-9). Fifteen days prior to the occurrence, Mamta disclosed that accused wanted to transfer the house at Yamunanagar in his name. Two months prior to the death of Mamta, Rajinder brought two gold bangles of wife of PW-Subhash Chander from Panota Sahib. Complainant has further stated that Mamta was harassed by Appellant for getting his demand of money fulfilled for their expenses. Darshan Lal (PW-10) has also deposed on the same lines as that of Subhash Chander (PW-9).

So from the close scrutiny of these two material witnesses, it cannot be inferred that the demand raised by the Appellant was in connection with dowry articles. It so seems that the Appellant has been spending the amount recklessly. Mamta deceased in order to settle in her life shifted to Yamunanagar in the house of her father. Even thereafter Appellant has not bothered to maintain the family and sold away the articles of the shop. So, if the testimony of these two witnesses are taken as a whole then the ingredient of offence u/s 304-B, IPC are not made out. However, ingredients of offence u/s 306 IPC are made out. The Appellant by his constant behaviour compelled Mamta to end her life. So, in these circumstances, the Appellant stands acquitted u/s 304-B, IPC. However, he stands convicted for offence u/s 306 of the IPC, which is a lessor offence and accused can be convicted without framing charge for that offence being lessor offence. The occurrence relates to the year 1997. So, the Appellant is sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo rigorous imprisonment for a period of two months.

So, in these circumstances, the appeal stands partly accepted to the extent referred to above.

The period of detention of the Appellant during the course of investigation and trial is ordered to be set off against the substantive sentence imposed u/s 306 IPC, referred to above.

As per the custody certificate, the Appellant has undergone incarceration for a period of two years and thirteen days. So, he be taken into custody to undergo the remaining part of his sentence as mentioned above.

A copy of this judgment be sent to the trial Court for strict compliance.