Shiv Kumar vs State of Haryana

V.K. Bali, J.

This appeal is directed against the judgment/order dated February 24/28, 1994, passed by the Additional Session Judge, Kurukshetra, whereby the appellant has been convicted for the offences under Sections 304B and 498A of the Indian Penal Code, and sentenced to undergo life imprisonment for the offence under Section 304B, IPC and to undergo rigorous imprisonment for two years for the offence under Section 498A, IPC. The sentences have been ordered to run concurrently.

The prosecution case, as can be gathered from the record of the trial Court, is that the appellant was married to Raj Bala (the deceased) somewhere in the year 1990. As per custom, Raj Bala came to her parents'' house, and after staying there for about one month she was taken to her matrimonial house in village Samsipur by the appellant. After about 4/5 months, she again came to her parents'' house. After about one month, the appellant came to take her back to the matrimonial home. At that time, the appellant asked for a loan of Rs. 20,000/, to enable him to become a cosharer in a tempo, from his fatherinlaw Shri Mohar Singh, who arranged the same from one Khairati Lal on interest at the rate of 2 per cent per month. The appellant had returned a sum of Rs. 10,000/ towards this loan. After about 2 years of her marriage, Raj Bala came to her parents'' house and told them that they (the appellant and Raj Bala) were facing scarcity for milk and as such a buffalo be given to her. On her request, her father Mohar Singh purchased one buffalo worth Rs. 5,000/ and sent the same to his daughter at village Samsipur.

On May 13, 1993, one Balkar Singh came and informed Jasmero Devi, the mother of the deceased, that her daughter had committed suicide. On getting this information, Mohar Singh and Smt. Jasmero Devi, the parents of the deceased along with other covillagers came to village Samsipur and found Raj Bala lying dead in her house. Injuries were found all over the body of the deceased. A rope was found on the iron girder fixed in that room. Leaving others at the spot, Mohar Singh went to the Police Station but on the way at the turning point at Samsipur, he met the police party headed by ASI Raghbir Singh. His statement Exhibit PC was recorded, whereunder ASI Raghbir Singh made endorsementExhibit PC/1, and sent the same through Constable Udey Pal to police Station Thanesar for the registration of a case under Section 306, IPC. On the basis of this ruqa First Information Report Exhibit PC/2 was recorded at Police Station Thanesar on May 13, 1993 at 7.50 p.m. Special report was received by the Additional Chief Judicial Magistrate at 12.50 a.m. on 14.5.1993.

Investigation was carried out by ASI Raghbir Singh who prepared inquest reportExhibit PA/3 and sent the dead body for post mortem to the LNJP Civil Hospital, Kurukshetra, through Constables Dalbir Singh and Udey Pal along with his applicationExhibitPA. Site planExhibit PE of the place of recovery was prepared. Exhibit P.1, the rope was removed from the girder of the room and was seized vide memo. Exhibit PD. In the meanwhile SHO Rajpal Singh (PW.8) reached the spot. He recorded the supplementary statements of Mohar Singh (PW.4) and Smt. Jasmero Devi (PW.5) and the case was converted to section 304B, IPC. During the investigation, it was revealed that the appellant had given beatings to the deceased during the night 12/13.5.1993 and ran away from the house. Fed up with her life, Smt. Raj Bala committed suicide by hanging with a rope. Scaled site planExhibitPB of the place of occurrence was prepared by Mukesh Kumar Draftsman (PW.2) at the instance of Mohar Singh and two others. After completing the investigation, a chargesheet was submitted under Section 304B, IPC against the appellant.

A charge under section 304B and 498A of the Indian Penal Code was framed against the appellant, who pleaded not guilty and claimed to be tried.

In support of its case, the prosecution examined 8 witnesses. Dr. K.K. Chawla (PW.1) performed autopsy over the dead body of Raj Bala on 14.5.1993 at 9.35 a.m. and prepared the report, carbon copy of which is Exhibit PA/1. He found :

The length of the body was 5'' 4". There was a ligation mark, reddish brown in colour in front of neck, extending on the right side up towards lateral and posterior part of nape of neck falling 2.5 cms short of middle of neck on left side going up 3 cms. above the angle of mandible just below the left mastoid region. The width of the mark was 2 cms. and it was hard and parchment to feel. There was contusion of the muscle layer and blood vessels underlying the mark. The neck was found to be elongated. Face was congested and flushed. The head was found to be turned on right side. Right angle of mouth was wet and water discharge from right nostril. The mouth was half opened and eyes were closed. Rigor mortis was partially present in the lower limbs and was absent in upper limbs.

He also found the following injuries over the said dead body :

(1) Abrasion 1 cm. x .2 cms. on the right side of face, 1.5 cms. below right lower lid. Infiltration of blood was present.

(2) Reddish contusion 4 cms. x 2 cms. on right breast, 2 cms. below right nipple. Infiltration of blood was present.

(3) Reddish contusion 5 cms. x 1.5 cms. in front of left side of lower chest. Infiltration of blood was present in subcutaneous tissue.

(4) Reddish contusion 10 cms. x 5 cms. on the right side of the chest in posterior axillary line. Diffused swelling was present in and around the contusion with infiltration of blood in subcutaneous tissue.

(5) Two reddish contusions 5 cms. x 2 cms. and 4 cms. x 1.5 cms. on lateral aspect of right arm in its middle and lower 1/3rd respectively.

(6) Reddish contusion 4 cms. x 2.5 cms. on the top of right shoulder.

(7) Multiple reddish contusions (six in numbers) on the posterior lateral aspect of left arm, size varied from 3 to 6 cms. and breadth 2.5 cms.

(8) Two reddish contusions on the left side of back of scapular region size 4.5 cms. x 1.5 cms. and 3.5 cms. x 1.5 cms. just below the spine of scapula.

(9) Reddish contusions 3 cms. x 2 cms. just above the injury No. 8. Diffused swelling was present underneath with infiltration of blood in subcutaneous tissue.

(10) Reddish contusion 6 cms. x 2 cms. on the left side of back lower part medial to the inferior angle of scapula.

(11) Reddish contusion 10 cms. x 2 cms. on the left side of the back and lower chest extending on to the lumbar region. On lower 3 cms. of the injury, abrasion was present.

(12) Two reddish contusions 6 cms. and 5 cms. x 2 cms. on the upper part of right back on scapular and inter scapular region, respectively. Infiltration of blood was present.

(13) Two reddish contusions 8 cms. x 2 cms. on lower part of right back and right lumbar region 7 cms. x 2 cms. oblique in direction and on lower half of the injury; abrasion was present.

(14) Reddish contusion 3.5. cms. x 1.5 cms. in front of right thigh in its middle. Infiltration of blood was present.

(15) Reddish contusion 6 cms. x 2 cms. on the back of right thigh. Infiltration of blood was present.

(16) Reddish contusion 4 cms. x 2 cms. on the back of right knee. Infiltration of blood was present.

(17) Reddish contusion 7 cms. x 2 cms. on the anterolateral aspect of upper part of left thigh. Infiltration of blood was present.

(18) Reddish contusion 5 cms. x 2 cms. in front of lower third of left thigh.

(19) Reddish contusion 4.5. cms. x 2 cms. on the back of left leg over calf muscles.

According to him the cause of the death of the deceased was asphyxia as a result of hanging which was ante mortem in nature and sufficient to cause death in the ordinary course of nature. All the injuries found on the dead body of the deceased were also ante mortem in nature. He explained in his crossexamination that the said injuries could have been inflicted within 24 hours of time of death. He did not agree with the suggestion that the death occurred after 36 hours and before the expiry of 72 hours of these injuries. He further opined that the time between hanging and death was within few minutes and between death and post mortem within 12 to 36 hours.

Mukesh Kumar, Draftsman (PW.2) had prepared the scaled site plan at the instance of Mohar Singh (P.W.4), Prem Chand and Amarjit Singh. Constable Dalbir Singh (PW.3) along with Constable Udey Pal had taken the dead body of Smt. Raj Bala on 13.5.1993 from village Samsipur to LNJP Hospital, Kurukshetra, along with the request Ex.PA and the inquest papers. After post mortem, he had handed over the post mortem report and sealed parcels given to him by the Medical Officer to ASI Raghbir Singh. Mohar Singh (PW.4) is the father, Jasmero Devi (PW.5) is the mother and Pala Ram (PW.6) is the uncle of the deceased Smt. Raj Bala. ASI Raghbir Singh (PW.7) and SI/SHO Rajpal Singh (PW8) are Investigating Officers.

In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant has admitted that he was married with the deceased and that Raj Bala had been going to her parents'' house and he used to bring her as usual. He has denied that he ever borrowed Rs. 20,000/ or took any buffalo from Mohar Singh or made any demand for dowry from the parents of his deceased wife. He has also denied allegations of cruelty and harassment alleged to have been caused by him to the deceased for not bringing sufficient dowry. He has also denied that on 13.5.1993 he had caused injuries to Smt. Raj Bala and then ran away. He has stated that he had left his village Samsipur on 10.5.1993 as a driver on the tempo of Chaudhari Ram Kabaria to Hissar, Kaleam and remained out of the village upto 17.5.1993, that he was arrested by the police from the place of Tempo Union, Kurukshetra, on 17.5.1993. He has further stated that he came to know from his covillagers that Mohar Singh had come to his house and gave beatings to Raj Bala on account of her illicit relations with Godhu Ram and Ram Saran sons of Jogi and when Mohar Singh left the village, Raj Bala committed suicide. He has further stated that in this absence all his household articles have been taken away by Mohar Singh and he has also obtained a sum of Rs. 13,500/ from his brother Dalip Singh. He did not produce any evidence in defence.

After perusing the evidence produced on the record, the learned Additional Sessions Judge accepted the testimony of Mohar Singh (PW.4), Smt. Jasmero Devi (PW.5) and Pala Ram (PW.6) and convicted and sentenced the appellant, as stated above. Hence this appeal.

We have heard the learned counsel for the parties and have gone through the record of the trial Court.

Shri R.S. Cheema, Senior Advocate, while appearing on behalf of the appellant, has challenged the conviction of the appellant under Section 304B, IPC. It has been argued by the learned counsel that there is no cogent and credible evidence on the record produced by the prosecution to prove the essential ingredient of an offence under Section 304B, IPC, that the appellant ever treated the deceased Raj Bala with cruelty or caused harassment to her in connection with any demand of dowry or on the ground that she had not brought sufficient dowry.

It has been elaborated by the learned counsel that in the first information report, carbon copy of which is Exhibit PC/2, and which contains the earliest version given by Mohar Singhfather of the deceased, there is no averment or allegation regarding the demand of dowry by the appellant or if the appellant ever treated the deceased with cruelty or harassed her on the question of dowry or bringing insufficient dowry. The learned counsel has further argued that Mohar Singh (PW.4) and his wife Jasmero Devi (PW.5) improved the version and levelled the allegations of cruelty and maltreatment of the deceased by the appellant for not bringing sufficient dowry only after the SHO reached the spot. Our attention has been drawn to the testimony of Shri Pala Ram (PW.6), who is the uncle of the deceased, wherein there is no allegation of the demand of dowry on the part of the appellant. Thus, it has been contended that the essential ingredient of the offence that the appellant subjected the deceased to cruelty or harassment in connection with the demand of dowry has not been established and for that reason the conviction of the appellant for an offence under Section 304B, IPC is bad in law.

On the other hand, Shri Azad Singh, learned Assistant Advocate General for the State of Haryana, has argued that Mohar Singh has specifically stated that the appellant used to treat Raj Bala with cruelty and subjected her to harassment as he demanded more money. It has been pointed out that the appellant after consuming liquor used to give beatings to Raj Bala and that she was given beatings and was pressed by the appellant to bring a buffalo from her parents'' house. Reference has also been made to the testimony of Jasmero Devi (PW.5), wherein she has stated that after about a month of her marriage Raj Bala had disclosed to her that she was being given beatings by her husband on account of insufficiency of dowry. It has also been argued by the learned Assistant A.G. that 19 injuries were found on the dead body of Raj Bala which were ante mortem in nature as deposed by Dr. K.K. Chawla (PW.1). On the basis of the testimony of the parents of the deceased and the injuries found on her person at the time of post mortem, it has been contended that the prosecution has successfully proved a case under section 304B, IPC against the appellant.

Before we proceed to analyse the evidence produced on the record, it would be in the fitness of things to point out that the substantive law relating to dowry death has been codified by the Legislature in Sections 304B and 498A of the Indian Penal Code and the procedural law in connection therewith in Section 113B of the Indian Evidence Act. Sections 304B and 498A, IPC read as under:

"304B(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 be have caused her death.

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

Since the term cruelty has not been defined in the aforesaid provision, we will have to go to Section 498A, IPC for that purpose, which reads as under :

"498A. 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.

Explanation : For the purpose of this Section ''cruelty'' means :

(a) 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

(b) 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."

As ordinarily cruelty, harassment and demand of dowry remains confined to the fourwalls of the house and it becomes difficult to prove these allegations, the Legislature thought of enacting procedural law in Section 113B of the Indian Evidence Act, which reads as follows :

"113B. 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 has 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 the Indian Penal Code."

The common thread which runs through these provisions to constitute an offence of dowry death is that the female must have been subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with the demand of dowry (emphasis laid). If the female has been subjected to cruelty or harassment by her husband or any relative of her husband and the same is not for or in connection with the demand of dowry, no offence under section 304B, IPC, can be said to have been made out. Keeping in view this legal aspect of an offence under Section 304B, IPC, we now proceed to examine the evidence produced by the prosecution to prove the same.

Admittedly, First Information ReportExhibit PC/2 was recorded immediately after the occurrence on the same day on the statementExhibit PC made by Shri Mohar Singh (PW.4), father of the deceased. There is no whisper of any demand of dowry by the appellant or that he was dissatisfied over the dowry given to his wife by her parents. Two instances have been given in the first information report. Firstly, the appellant demanded a loan of Rs. 20,000/ to enable him to become a coowner of a tempo which was arranged by Mohar Singh from one Khairati Lal on interest at the rate of 2% per month and that the appellant had repaid a sum of Rs. 10,000/ towards this loan after certain months thereof. Asking for a loan from a fatherinlaw or arranging or giving a cash amount by way of loan to a soninlaw cannot be considered by any stretch of imagination to be a demand of dowry. Similarly, it has been stated that after two years of the marriage, Raj Bala had come to her parents'' house and told them that she was facing milk scarcity so a buffalo be given to her. On her request Mohar Singh (PW.4) purchased a buffalo for Rs. 5,000/ and sent the same to his daughter in village Samsipur. There is no allegation in this FIR that the appellant ever coerced Raj Bala to force her parents to give a buffalo to them to meet the scarcity of milk. The conduct of the appellant in asking for a loan of Rs. 20,000/ which was arranged on interest and then part repayment in itself is enough to show that the appellant was not asking for any dowry from the parents of Raj Bala nor she was subjected to cruelty or harassment in that connection. The mere fact that multiple injuries were found on the body of Raj Bala which were ante mortem in nature cannot lead to the conclusion that the assault was committed by the appellant with a view to demand more dowry or being dissatisfied with the dowry brought by her. It is important to mention that according to the testimony of Mohar Singh (PW.4), Raj Bala stayed only or about 3 or 4 months at her parents'' house after her marriage till her death.

It is correct that after the first information report was lodged Mohar Singh (PW.4) and his wife Jasmero Devi (PW.5) started alleging that their daughter was being subjected to cruel treatment by the appellant being dissatisfied with the dowry and he wanted more money. This version appears to be an afterthought idea when SI/SHO Rajpal Singh (PW.8) reached the spot of occurrence. Strange enough, he recorded the supplementary statements of these two witnesses, converted the offence under Section 304B, IPC, and left the place of occurrence. This conduct of SI/SHO Rajpal Singh further reflects a doubt as to how the offence of dowry death has been brought into existence later on. Mohar Singh (PW.4) has admitted in his crossexamination that he had not stated in his statementExhibit PC that the appellant used to give beatings to his daughter on account of insufficiency of dowry.

The most important evidence is the testimony of Pala Ram (PW.6), who is the real uncle of the deceased. He has not deposed either in his examinationinchief or crossexamination that the appellant subjected the deceased Raj Bala to cruelty or harassment for or in connection with the dowry. He has not stated anywhere that the appellant had made any demand of dowry either in cash or kind from the parents of the deceased or he was dissatisfied with the dowry brought by the deceased at the time of her marriage with him. It the allegation of giving beatings by the appellant to the deceased for bringing more dowry either in cash or kind had been true to any extent, Pala Ram (PW.6) would have been the last person to screen the appellant from such allegation. His testimony shows that the residents of the village informed them that Raj Bala had been given beatings by her husband (the appellant) during the previous night and due to the harassment and beatings, she committed suicide by hanging herself. As already stated, the testimony of Mohar Singh (PW.4) and Jasmero Devi (PW.5) on the question that the appellant subjected the deceased Raj Bala to cruelty or harassment for or in connection with dowry is an afterthought and the same does not inspire confidence. Their testimony in the Court runs counter to the original version given by Mohar Singh (PW.4) in the first information report. Further, their testimony stands shattered by the testimony of their close relations Pala Ram (PW.6). Concededly, there is no other evidence produced by the prosecution to prove that the deceased was subjected to cruelty or harassment for or in connection with the demand of dowry. In other words, the main ingredient to constitute an offence of dowry death has not been established, what to speak of beyond reasonable doubt. Therefore, we have no hesitation in holding that the conviction of the appellant for an offence under Section 304B, IPC, is bad in law and liable to be set aside.

But the question does not rest with the above finding. It cannot be disputed that Raj Bala committed suicide in her matrimonial house on 13.5.1993. Only she and her husband were living in that house. Neither the parents nor the brothers of the appellant were residing with them. Autopsy was performed by Dr. K.K. Chawla (PW.1) over the dead body of Raj Bala on 14.5.1993 at 9.35 a.m. and he found 19 injuries on different parts of her body as detailed above. All these injures were ante mortem in nature. The question arises as to who committed this serious assault upon the deceased. The circumstances reveal that it can be the appellant only and none else. The defence plea that the deceased Raj Bala was having illicit relations with two siris of her father, residing in a village at a distance of 40 Kms away, and to desist her from maintaining such relations, Mohar Singh (PW.4) came to her house in the absence of the appellant and gave these beatings to her, is patently and evidently a false and selfconcocted version, with no material in support thereof. The plea of the appellant that he was away from this village from 10.5.1993 to 17.5.1993 also has no legs to stand upon for want of any evidence in support thereof. The learned counsel for the appellant half heartedly conceded that these injuries could have been caused to the deceased Raj Bala by the appellant and none else as the circumstances of the case reveal.

It is not disputed that the marriage between the appellant and the deceased Raj Bala was performed somewhere in the year 1990. It is also not disputed that Raj Bala committed suicide in her matrimonial home on 13.5.1993. In other words Raj Bala committed suicide within a period of 7 years from the date of her marriage. It has been found as a fact that the appellant had committed serious assault upon Smt. Raj Bala immediately preceding the commission of suicide by her. These duly established facts go to constitute an offence under section 306 IPC.

According of Section 306, IPC, if any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 113A of the Indian Evidence Act provides as under :

"113A : Presumption as to abetment of suicide by a married woman : When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide with in a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case,that such suicide had been abetted by her husband or by such relative of her husband.

Explanation : For the purposes of this section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code."

When the question is whether commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage, and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume having regard to all other circumstances of the case,that such suicide had been abetted by her husband or by such relative of her husband. It has been found that the prosecution has been able to prove beyond reasonable doubt that in the morning hours of 13.5.1993 i.e. the date of the alleged occurrence prior to her death, the deceased had been severely assaulted by the appellant. Having regard to the nature and location of the injuries found on the person of the deceased, it can be safely concluded that the wilful conduct of the appellant i.e in assaulting the deceased was of such a nature as was likely to drive her to commit suicide and she actually committed suicide being fed up with such illtreatment meted out to her by her husband. Therefore, under the said circumstances and in view of the fiction created by Section 113A of the Evidence Act, we hold that the appellant had abetted the commission of suicide of Raj Bala and thereby committed an offence punishable under Section 306, IPC.

Coming to the question of sentence, the learned counsel for the appellant has contended that the appellant has already undergone a sentence of four years whereas an offence under Section 306, IPC, is punishable with imprisonment which may extend to ten years. It has been pointed out by the learned counsel that the prosecution has not been able to prove as to why the appellant had treated the deceased with cruelty or harassed her. The real cause shrouds in mystery. In these circumstances, the learned counsel has urged that in the present case the period of sentence already undergone by the appellant would meet the ends of justice. On the other hand, the learned Assistant Advocate General has argued that since the deceased was forced to commit suicide within a period of 7 years of her marriage for no fault of her, deterrent sentence ought to be imposed upon the appellant.

The question of awarding sentence is a sensitive one. The quantum of sentence would differ from case to case even for the same offence. It would rest on the facts and circumstances of each particular case. In the totality of the circumstances of the case in hand, we find ourselves in agreement with the learned counsel for the appellant that the ends of justice would meet if the sentence to be imposed is confined to the period already undergone by the appellant.

As a result of the above discussion, this appeal succeeds in part. The conviction and sentence of the appellant for the offence recorded under Sections 304B and 498A, IPC, are hereby set aside. Instead, he is convicted for an offence under Section 306, IPC and sentenced to the period already undergone by him. The appeal thus stands disposed of.