Ram Kumar and Others vs State of Haryana

V.K. Bali, J.—Dharamwati whose marriage was solemnised by her mother with appellant Ram Kumar in May 1988 died an unnatural death on 21st of September, 1991 or little earlier. In fact, it is not only proved but conceded during the arguments by the learned defence counsel that she was murdered. The sole but significant question that still, however, survives is as to whether she was done to death by her husband Ram Kumar and hi s parents Seho Karan and Day awati who were charged u/s 302 read with Section 34 of the Indian Penal Code and Section 201 of the Indian Penal Code as also under Sections 304-B and 498-A of the Indian Penal Code and were convicted by Shri M. K. Bansal, Sessions Judge, Gurgaon vide order of conviction and sentence recorded against the appellants herein u/s 304-B to undergo R.I. for life and to pay a fine of Rs. 1,000/- each, in default whereof they were further ordered to undergo R.I. for two months as also u/s 201 to undergo R.I. for two years each as also u/s 498-A of the Indian Penal Code to undergo R.I. for one year each. All substantive sentences were, however, ordered to run concurrently.

A brief narration of facts leading to unfortunate death of Dharamwati, before the question posed in this appeal is answered, needs a necessary mention. On 22nd of September, 1991 at about 7.30 p.m. Chand Kishore got his statement recorded to ASI Ajmer Singh at police post GRPS Rewari on the basis of which formal F.I.R. came to be recorded at 9.30 p.m. on the same day. Special report with regard to the incident as reported by Chand Kishore was received by the Magistrate at 6.00 a.m. on 23rd September, 1991. Chand Kishore stated that his father had expired about four years ago and his mother Smt. Shanti Devi was alive. They are four brothers and two sisters. Karan Singh being the eldest, he was younger to him and still younger to him was Attar Singh and his sisters are Jagwati and Dharamwati. His sister Dharamwati deceased was married with Ram Kumar son of Sheokaran in the month of May 1988. In the marriage he and his family members had given sufficient dowry as per Hindu rites. She remained happy there for a few days. Thereafter his Jija (sister''s husband) Ram Kumar, his father Sheokaran and his mother (his sister''s mother-in-law) Dayawati started harassing his sister and compelled her for bringing more dowry time and again. His maternal uncle''s son Ram Kumar, his maternal uncle Chandan Lal and he himself had visited many times house of the in-laws of his sister to advise them after they had picked up a quarrel. All the three i.e. Ram Kumar, Sheo Karan and Dayawati did not agree with him and continued mal-treating her. After four/five months of the birth of a daughter, they demanded a scooter in Chuchak but he was unable to fulfil their demand. Due to his grouse, all of them having connived with each other killed his sister and placed the dead body on Railway line so that the same might be cut by some train and that they might escape. Sajjan Singh informed him about this occurrence in the village that dead body of Dharamwati was lying on railway line between railway station of Jawri Sanpka and Patti. He further told that he had not know the reason of death. On receipt of information he along with his cousin (maternal uncle''s son) Ram Kumar and his brother Bhim Singh reached village Khawaspur where they came to know that dead body of his sister had been sent to Gurgaon. Whereupon all of them reached the Civil Hospital, Gurgaon and identified the dead body of his sister. After verifying the facts he along with his companions reached Police Post, Railway Gurgaon. Ram Kumar, Seho Karan and mother-in-law Dayawati after hatching a conspiracy killed his sister Dharamwati and placed her dead body on the railway line and had tried to hush up the matter.

With a view to substantiate its version prosecution examined number of witnesses in this case Smt. Shanti Devi mother of the deceased was examined as PW-1. Smt. Mukesh wife of Attar Singh who is son of Shanti Devi PW-1 was examined as PW-2. Kanwar Singh a neighbour of Shanti Devi PW-1 was examined as PW-3. Chand Kishore brother of the deceased was examined as PW-4. Dr. S. P. Singh was examined as PW-5. Ganga Ram who as per the prosecution version had seen the appellants taking the deadbody of the deceased to railway line was examined as PW-6 whereas Ram Kumar another relation of the deceased was examined as PW-7. The prosecution also relied upon the statement of Mul Chand Punia PW-8, Leelu Ram and Pritam Lal Dua as PW-9 and PW-10, Sham Lal Photographer as PW-11, Sajjan Singh before whom the appellants allegedly made confession as PW-12, M.L. Gera, Dharam Singh and Deep Chand as PWs 13 to 15 and S.I. Rajinder Parshad and ASI Ajmer Singh who conducted the investigation in the case as PW-16 and PW-17.

Dr. S.P. Singh stated that on 22nd of September, 1991 at 5.00 p.m. he along with Dr. Prem Kumar had conducted the post-mortem examination of the dead body of Dharamwati. The body was moderately built and nourished of a lady. Rigor mortis was absent. Right eye protruded out. Left eye was missing lips and tongue and right hand finger nails bluish. Left hand with fore arm was missing. The body was smeared with blackish oil at places. There was a ligature mark, well defined and slightly depressed, situated low down in the neck, below the thyroid cartilage which was encircled horizontally and completely. The breadth of ligature mark was about 1 cm. Base of the groove was brown in colour, ecchymosis was present. Left cornu of thyroid bone was fractured. There was lacerated wound over the forehead, extending upto middle of skull. There was also lacerated wound over the right side of chin, size 1W x 1" as also over the middle of the right thigh measuring 1" in diameter. Both legs were amputated below knee joints and crushed, right absent, left only foot was present. The right buttock was having lacerated wound of size 6" x 4" x 3" deep. It was eaten by animals. Brain matter was also absent. On dissection, fracture of right thigh, fracture of frontal and both parietal and occipital bones was found in pieces. The cause of death in the opinion of the doctor was asphyxia caused by strangulation. Strangulation was ante-mortem in nature and the remaining described injuries except ligature mark were post-mortem injuries and the strangulation was sufficient to cause death in the ordinary course of nature. The police history revealed that it was a case of death because of the railway accident. On re-examination the doctor stated that the ligature found on the dead body could be with a thin rope.

PW-1 Shanti Devi broadly supported the prosecution version. She further stated that the appellants wanted more valuables by way of dowry and they were taunting her for not bringing sufficient valuable articles. Sometimes the appellants demanded cooler and sometimes Fridge and sometimes other articles. When the motor of the grinding machine got burnt, the appellants demanded the price of its rewinding through her daughter. The price of the rewinding of the motor was demanded six months before the death of her daughter and the extra demands were being raised from time to time. Her daughter had given birth to a female child and a scooter was demanded by the appellants but she could not give and provide a scooter to them. When cross-examined she stated that she mentioned about the specific demands of cooler and Fridge in her statement before the police. Since this was not so stated in her statement u/s 161 of the Cr.P.C. before the police, she was confronted with the same. She again stated that she informed the police that appellants wanted price of the repair of the rewinding of the motor of the grinding machine but since this again did not form part of her statement u/s 161 of the Cr.P.C., she was confronted with same. She again stated that she had informed the police that her daughter was turned out of the matrimonial home several times and she used to weep before her and used to tell her about the torture being committed on her. On this point also she was not found to be telling the truth as she was confronted with the statement made before the police where she had not so stated. With regard to manner of torture so stated by her before the Court, she was once again confronted as nothing like that was stated by her before the police. She was confronted with her statement with regard to non-receipt of information about the death of her daughter by the appellant to her. She, however, admitted that at the time of the marriage no demand of dowry was made nor there was any complaint soon after the marriage that the dowry was insufficient. She also stated in cross-examination that she did not remember any date, day and time when the appellants might have given beating to her daughter or they might have turned her out of the matrimonial home. Smt. Mukesh PW-2 stated in her deposition made before the Court that Dharamwati was her husband''s sister and she was married about four years ago with Ram Kumar, which was a decently performed marriage. Agricultural lands of his parents and those of the appellants adjoin each other and she used to visit her parents. Four/five days before the death of Dharamwati, she had gone to her parents and met the deceased in the fields. The appellants and the deceased were in the fields. Dharamwati was weeping and she did not state anything to her. Mother-in-law of the deceased was quarrelling with her at that time. Other appellants were also quarrelling with Dharamwati. She persuaded the appellants not to torture the deceased like that. In her cross-examination she stated that she had told the police that the appellants and the deceased had met in the fields and the appellants were demanding a scooter. It was not so recorded in her statement recorded u/s 161, Cr.P.C. with which she was confronted. In her statement all that was recorded was that the appellants had demanded a scooter in Chhuchak. She further stated that she did not remember the date when she went to meet the deceased. However, after remembering the same, she further stated that she had gone there on 21st of September, 1991. It may be mentioned at this stage that Dharamwati is said to have been done to death on 21st of September, 1991 itself. She also stated that she had gone to the fields alone. Kanwar Singh PW-3 a neighbour of Shanti Devi stated that his Dhani is situated near the Dhani of Chand Kishore. Whenever Dharamwati used to come to her parents'' house, she used to tell him that she was very much being tortured and she was in distress in the house of in-laws and she used to tell the reason for her torture that her in-laws wanted valuable articles and money by way of dowry. She also told that she was being compelled to take tablet/ medicines meant as preservatives of wheat grains. At one time when Ram Kumar appellant came to take Dharamwati with him, she was not sent with him out of fear and then father of Ram Kumar appellant came and assured that nobody was going to bother her, then only she was sent. The father of the deceased had taken her about 12 days prior to her death. In cross-examination he stated that he had disclosed to the police that the deceased told him that she was being tortured by her in-laws because of inadequate of dowry articles. Since it was not so record in his statement made before the police, he was duly confronted with the same. Chand Kishore brother of the deceased broadly supported the prosecution version. He also stated sometime after the marriage the appellants started demanding more valuable articles by way of dowry. He had taken his maternal uncle Chandan and Ram Kumar to the village of the appellants and told the appellants politely that it was not desirable to make such demands nor such demands could possibly be met. The appellants would agree to their suggestion on the subject but later on tortured his sister again. His sister gave birth to a female child and her in-laws demanded a scooter in Chhuchak but they were told that this demand could not be met. In cross-examination he stated that they had paid an amount of Rs. 3100/- in cash at the time of engagement of his sister. Some clothes and ring were also given. T.V., almirah, furniture, beds and utensils, wrist watch, sewing machine and other clothes were also given at the time of marriage and that it is after about one month of the marriage that the appellants started demanding dowry and valuable articles. However, soon after the marriage, there was no demand for dowry. He also stated that the marriage was negotiated by his father''s sister''s son, namely, Ranjit who at the time of marriage did not tell him that the appellants were demanding anything else. The appellants were quite happy at the time of marriage. He further stated that he had not lodged any report nor he made any complaint to the police before the death of his sister about the conduct of the appellants. They also did not convene any panchayat at village Khawaspur i.e. village of the appellant about their conduct. Ganga Ram Stated that he had gone to village Khawaspur for purchasing a buffalo. He reached there in the evening. He had gone to the house of Hira who is brother-in-law of his maternal uncle, and stayed at his house. After taking his meals he, however, felt uncomfortable and developed some stomach pain after he had gone to sleep. He woke up and strolled here and there but had no relief. Then he went out to ease himself in the fields towards the Dhani of Sheo Karan appellant. After easing himself when he was coming out he saw the male appellants, namely Ram Kumar and Sheo Karan were holding a cot from two sides. Dayawati was behind them and they were going towards the railway line. He asked them as to whom they were taking on the cot. Appellant Ram Kumar told him that his wife was seriously ill and they were taking her on the cot to the hospital. Early in the morning he got up and went back to his village. In cross-examination he stated that his village was at a distance of two furlongs from the village of Dharamwati deceased. Sis Ram husband of Shanti Devi PW-1 was not his blood relation but was otherwise from his brotherhood and used to call him as a brother. He further stated that he used to visit his maternal uncle''s in-laws house off and on. He knew all the appellants. He, however, admitted that the appellants had never come to his house. He also stated that he had not purchased the buffalo for which he had gone to the village of the appellants. Ram Kumar PW stated that his Bhua i.e. father''s sister Dharamwati was married with accused Ram Kumar four years ago. She gave birth to a daughter from this wedlock. The appellants demanded a scooter on the occasion of birth of the daughter on account of Chhuchak. He had gone twice or thrice with his uncle to the house of the appellants and requested them with folded hands and dissuaded them not to make such demands. The appellants were, however, resenting that they were not given refrigerator, other articles and valuables. Shri Mul Chand Draftsman only prepared the scaled site plan at the pointing out of the prosecution witnesses. Leelu Ram PW-9 stated that the dead body of a lady was lying near the railway line and he was told by M. L. Gera Station Master Jhatola Jori Samka to guard the dead body till the arrival of the police. Pritam Lal Dua stated that he had brought the original record and on 22nd September, 1991 between Railway Stations Patli and Jhatola Jori Shampk, dead body was found lying within the railway track. The train had passed over the body. He had informed M. L. Gera Station Master. The train had stopped at the spot for 8 minutes. Sham Lal the photographer had gone to the spot and taken photographs of the dead body. Sajjan Singh stated that about two years back in the evening the appellants Ram Karan and Sheo Karan came to him at his house and told him that they have committed a mistake that they killed Dharamwati and the police is harassing them and they be produced before the police. During night they stayed in his house and he took them to police station. He went to Path Railway Station where police met him where they were produced before the police. He also stated that the appellants were known to him and he had got the marriage of Dharamwati arranged. In cross-examination he stated that Chand Ki shore brother of deceased was his first cousin from maternal uncle side and that at the time of marriage there was no talk of demand of dowry. He also stated that the appellants had come at about sun set time and next day they had started from the house at about 6 a.m. and the appellants were produced before the police at 6.30 a.m. He also stated that he had told the police that during night the appellants had stayed at his house. Since, however, it was not stated by him in his statement before the police, he was duly confronted with the same. He also stated that he got recorded in his statement to police that appellants admitted having killed Dharamwati. Since this was not so stated by him, he was duly confronted with his statement recorded by the police. M.L. Gera Railway Station Master only stated that on 22-8-1991, after getting information from guard, he sent memo Ex. PF to Incharge GRP Gurgaon about the fact that a dead body of lady was lying on the track. Dharam Singh only stated that on the direction of Station Master Mr. Gera he along with Raghbir Singh guarded the dead body lying on the railway track. Head Constable Deep Chand deposed with regard to partial investigation conducted by him in the case. S.I. Rajinder Parshad prepared the report u/s 173 of the Code of Criminal Procedure. ASI Ajmer Singh appraised the Court the way and manner in which the investigation had progressed.

When examined u/s 313 of the Code of Criminal Procedure appellant Ram Kumar stated that he was innocent. His wife was a hot tempered and mentally feeble woman. She used to leave the house of her own. She committed suicide by lying on railway track before incoming train. Present case had been planted on them. They never made any demand for dowry, nor tortured her for the same. They never committed any murder nor they made any extra judicial confession. In the defence led by them, the appellant examined DW-1 Hira Lal who stated that Ganga Ram was known to him but he had never stayed with him. He was not his relation and not stayed with him on 22nd September, 1991.

Mr. R. S. Ghai, learned Senior Advocate appearing for the appellant in support of the appeal preferred by them vehemently contends that no finding has been returned by the learned Sessions Judge with regard to extra-judicial confession alleged to have been made by the appellants before Sajjan Singh PW-12 nor the statement of Ganga Ram PW-6 who allegedly saw the appellants carrying the dead body of Smt. Dharamwati towards the railway line has been specifically commented upon. The fact of the matter is that the appellants have not been held guilty u/s 302 read with Section 34 of the Indian Penal Code and that their conviction has been recorded under Sections 304-B, 498-A and 201 of the Indian Penal Code. As the appellants have not been found guilty u/s 302 of the Indian Penal Code it necessarily follows that the statements of Ganga Ram and Sajjan Singh have not been believed contends the learned counsel. In alternative, the contention of the learned counsel is that no reliance can at all be placed upon the statements of these two witnesses and if their evidence is excluded, the prosecution is left with the statements of close relations of the deceased with regard to demand of dowry and torture meted out to the deceased at their hands as also the presumption that might arise against the appellants, the death being unnatural and within less than four years of marriage in this case. The evidence with regard to demand of dowry is whole discrepant and, in fact, a deliberate attempt has been made to improve upon the prosecution version on that score. Once, that part of the evidence is also excluded, there remains no evidence on the basis of which the appellants could be convicted further, contends the learned counsel. Mr. Gulab Singh Assistant Advocate General appearing on behalf of the State has joined issues with the defence counsel on the points canvassed by him as noted above.

We have heard the learned counsel representing the parties and with their assistance gone through the records. Before, however, we proceed in the matter, it may be said, that it is proved from the statement of Dr. S. P. Singh PW-5 that Dharamwati did not commit suicide and she was, in fact, murdered. It may be recalled that the doctor had found ligature mark well defined and slightly depressed situated low down in the neck below the thyroid. The length of the ligature mark was about 1 cm. In the opinion of the doctor death of Dharamwati was due to asphyxia caused as a result of strangulation and strangulation was ante-mortem in nature. The remaining injuries were post-mortem and stragulation was sufficient to cause death in the ordinary course of nature. Dharamwati was, thus, done to death by strangulation and after she was murdered her dead body was thrown on the railway line. It has also come in the evidence that the train passed over the dead body. The other injuries that were found by the doctor on the dead body of Dharamwati were, thus, for the reason that train had passed over her. As mentioned in the earlier part of the judgment, even the defence counsel does not dispute that it is a case of murder. The significant question that still, however, remains to be answered is as to whether there is legal, admissible and sufficient evidence to hold that all the appellants or any one of them committed the crime. In our considered view even though there may arise strong suspicion for the appellants to be involved on the basis of the evidence that the prosecution has led it is not possible to record a finding of conviction against them. There is no need to go into the question as to whether the learned Sessions Judge has or has not returned a positive finding of guilt on the basis of statement made by Ganga Ram PW-6 and Sajjan Singh PW-12 as we have ourselves gone through the statements made by them and in our opinion their evidence does not inspire any confidence. Ganga Ram had gone to village Khawaspur for purchasing a buffalo which he admits was not purchased by him. He reached in the evening and had gone to the house of Hira who is stated to be brother-in-law of his maternal uncle and stayed at his house. He had his meals at his place but developed stomach pain after he had gone to sleep. He strolled here and there but had no relief. Then he went to ease himself in the fields towards the Dhani of Sheo Karan. When he was coming after easing himself he saw the appellants taking the dead body of Dharamwati on a cot. He further stated that in the early morning he got up and went back to his village. He did not remember the name or number of the month and the year. In cross-examination even though he stated that Sis Ram husband of PW-1 was not related to him by blood but he was from his brotherhood and he used to call him as such. Hira has been examined by the appellants as DW-1 who stated that Ganga Ram had never come to him and never stayed with him at night on any given date. It is very difficult to believe the statement of this witness who went to the village of the appellants herein for purchase of buffalo which he never purchased. He reached in the evening, made no efforts to purchase the buffalo, slept at the house of Hira and walked back to his house in the early morning. As mentioned above, he is also from the brotherhood of the husband of PW-1 Shanti Devi. The story given by him that he felt uneasy in the evening even though he was alright earlier and got relief when he went outside to ease himself does not appear to be true. It all seems to be made up affair simply with a view to prop up the prosecution version. Sajjan Singh PW-12 admitted that he is first cousin of Chand Kishore, brother of the deceased. He stated that appellants Ram Karam and Sheo Karan had come to him on 26th of September, 1990 in the evening and had told him that they had committed a mistake and that they had killed Dharam wati and since the police was harassing them they should be produced before the police. The appellants aforesaid stayed with him during the night at his house and in the morning he took them to the police station. He had not stated in his statement made to the police u/s 161 of the Code of Criminal Procedure that the appellants had stayed with him during the night. He had also not stated before the police that the appellants had told him that they had killed Dharamwati. As mentioned above, he was duly confronted with his earlier statement. Besides the fact that this witness is related to the deceased it looks highly improbable that the appellants would go to a person who is so closely related to the aggrieved party to make a confession of their guilt. Such a person far from helping them would normally turn against them. We are quite convinced that the appellants herein could have sought no assistance from PW-12 Sajjan Singh. This witness to like PW-6 Ganga Ram, it appears to us has been introduced simply with a view to strengthen the prosecution version. No reliance can be placed on his statement as well. Once the evidence of these two witnesses is discarded, it is conceded position between the learned counsel representing the parties that charge u/s 302 of the Indian Penal Code cannot be brought home against the appellants. The prosecution is, thus, left with the evidence with regard to demand of dowry and torture meted out to Dharamwati deceased for not fulfilling the various demands made by the appellants from time to time. If that part of the evidence is believed the death of Dharamwati being unnatural and in the present case proved to be a murder, presumption would arise against the appellants as concededly the death occurred within less than four years of the marriage. We have scrutinised the evidence with regard to demand of dowry and torture meted out to Dharamwati and we are convinced that the prosecution improved and exaggerated its case on that count. It may be recalled that while lodging the F.I.R. PW Chand Kishore stated that in the marriage he and the members of his family had given sufficient dowry as per Hindu custom and Dharamwati remained happy for a few days and thereafter the appellants started harassing his sister compelling her to bring dowry time and again. After 4/5 months of the birth of a daughter, the appellants demanded scooter in Chhuchak but they were not able to fulfil their demands. It is however, stated by him that due to this grouse, the appellants having connived with each other killed his sister a. '' placed the dead body on railway line so that the dead body might be cut by some train and they might escape. But for demand of scooter after Dharamwati was blessed with a daughter, there is no mention of any demand of any item either at the time of marriage or thereafter. The demand of scooter appears to have been made before 4-5 months of the death of Dharamwati and with regard to this demand the appellants were clearly told that the same cannot be fulfilled. The scooter was, thus, never given to the appellants. This version of the prosecution was sought to be magnified during the course of trial when Chand Kishore stated that valuable articles were demanded by way of dowry. It is significant to mention here that this witness even in his statement made before the Court did not name the valuable articles which were said to have been demanded from them nor it is the case that any particular demand made by the appellants was ever fulfilled. This witness on that count had stated that after the marriage when the appellants started demanding more valuable articles and his sister told him about the same he along with his maternal uncle Chandan Singh and Ram Kumar went to the village of the appellants and told them politely that it was not desirable to make such demands nor such demands would possibly be met. The appellants used to agree to his suggestion on the subject but later on again tortured his sister. Shanti Devi PW-1, however, named specific articles that the appellants had demanded from her. She stated that some times after the marriage the appellants started torturing her daughter as they wanted more valuables by way of dowry. They were taunting her that she had not brought sufficient valuable articles. Sometimes the appellants demanded cooler and sometimes fridge and sometimes other articles and when the motor of the grinding machine was burnt, then the appellants demanded the price of its rewinding from them. As mentioned in the earlier part of the judgment she had nowhere in her statement u/s 161 of the Code of Criminal Procedure stated that these specific articles were demanded and therefore, she was duly confronted with her earlier statement made before the police. That apart, it has come in the evidence of almost all the witnesses that no demand was made at the time of marriage or immediately thereafter and that the appellants were quite happy at the time of marriage. In the totality of the facts and circumstances of this case and statements of various witnesses made before the Court, this Court is of the view that the demand of various items alleged to have been made by the appellants was simply introduced. There could be number of reasons for doing it. It could be for the reason that the prosecution perhaps knew its weakness to prove a charge u/s 302 of the Indian Penal Code against the appellants. It could also be for the reason that the complainant party, naturally being annoyed and disturbed on account of death of Dharamwati, suspecting the appellant to be involved in the commission of the crime might have introduced demand of dowry with a view to make a fool proof case against the appellants.

It is true that Dharamwati has been murdered and an attempt had also been made to do away with evidence of murder by throwing her dead body on the railway line. It is also true that in the facts and circumstances of this case a suspicion arises that all the appellants or some of them might be involved in this crime, but suspicion; howsoever strong it might be cannot take the place of proof. If there was perhaps one witness, out of so many examined by the prosecution, whose evidence could be believed, this might have been a case of conviction but on the kind of evidence that was led by the prosecution and which has been discussed thread bare by us, we have no choice in this matter but to return a finding ''not guilty'' by giving the appellants the benefit of doubt. That being so, this appeal has to succeed.

Resultantly, the order of conviction and sentence recorded by the learned Sessions Judge, Gurgaon is set aside and the appellants are acquitted of the charges framed against them inclusive of the charges for which they were held guilty by the learned Sessions Judge.