Siri Bhagwan vs State of Haryana

Jasbir Singh, J.—This judgment will dispose of two appeals, i.e., Criminal Appeal No. 1212-SB of 1999, filed by appellant -husband Siri Bhagwan, and Criminal Appeal No. 448-DBA of 2000, filed by the State of Haryana, as these arise out of one and the same incident and judgment. For facility of dictating judgment, facts are being taken from Criminal Appeal No. 1212-SB of 1999.

Appellant Siri Bhagwan and his mother Bhateri Devi were made to face trial for commission of offences under Sections 498A/304B read with Section 34 of the Indian Penal Code on the allegations that they had subjected Smt. Kavita alias Babita, cruelty / harassment to coerce her to meet their unlawful demand of dowry and thus forced her to burn herself to death on October 29, 1998.

Trial Court, on appreciation of evidence of record, acquitted Bhateri Devi (respondent in Criminal Appeal No. 448-DBA of 2000) of the charges framed against her. Siri Bhagwan, appellant-husband was convicted and qua him, following order awarding sentence was passed:

The accused is sentenced to imprisonment for one year and fined Rs. 1000/-(Rs. One thousand only) only for the comission of the offence punishable u/s 498A of the Indian Penal Code. He is further sentenced to undergo imprisonment for a period of seven years for the commission of the offence punishable u/s 304B of the Indian Penal Code. In default of payment of fine, the accused shall undergo further imprisonment for a period of two months. All the sentences shall run concurrently. The period spent by the accused in custody in this case shall be set off against the sentenced awarded today.

Brief facts of the prosecution case are that marriage of Siri Bhagwan, appellant (for short appellant -husband) was solemnised with deceased Kavita alias Babita on April 17, 1998. On October 29, 1998, Constable Surender Pal informed ASI Pirthi Singh that Smt. Babita had died under unnatural circumstances after receipt of burn injuries. Police party rushed to Civil Hospital, Sonepat. As per medico-legal report, the deceased had suffered 100% burns. Mahabir Parshad (PW6), brother of the deceased, made a statement Ex. PD to the Police, levelling charges of harassment on account of demand of dowry, against the above said accused. Accordingly, FIR Ex. PD/1 was recorded on August 30, 1998, at 11.30 AM. Relevant contents of the FIR read thus:

I am serving as a Fitter Helper in the Public Health Department, Gurgaon. We are four brothers and sisters. My sister Kavita alias Babita aged 20/21 years was married to Siri Bhagwan s/o Itbari Harijan (Chamar) village Badkhalsa District Sonepat as per the Hindu rites on 17.4.1998. We had spent in her marriage much beyond our means. She had started living with her husband for consumating the marriage from that day. Only after one month from her marriage Siri Bhagwan and his mother Bhateri had started harassing her for bringing insufficient dowry. My sister had visited her parental home on the occasion of festival of Dussehra and had informed me and my parents about the demand of Rs. 50/60 thousand to run a shop, raised by her mother-in-law and husband and she told us that they directed me that they will take her only if their demand was fulfilled. On 24.10.98, Siri Bhagwan reached at our house and asked my parents about the arrangement of rupees. I told him that my father was scheduled to retire in the near future and amount will be paid at that time. Arrangement of such a huge amount can not be made in a such short span. We succeeded to bring home Siri Bhagwan to agree to take away my sister to his house and next day we had sent her with him. After 4/5 days, today at night, Sunderpal s/o Ram Singh, r/o village Badkhalsa who is married to my uncle''s daughter Lakhpati visited our house and told us that Kavita was admitted in Govt. Hospital Sonepat and she was in serious condition. On hearing this news, I, my parents and many other people reached at hospital. We have full confidence that my sister had been killed by seting her on fire by Siri Bhagwan and his mother Bhateri for bringing insufficient dowry.

Investigating Officer ASI Pirthi Singh (PW13) went to the place of occurrence, prepared rough site plan Ex. PA and also collected material available at the site. He also prepared the inquest report. Dead body was sent for post-mortem examination, which was conducted by Dr. Suman Mathur (PW7). On completion of investigation, final report was put in Court. In due course of time, case was committed to the competent Court for trial.

Both the accused were charge-sheeted, to which they pleaded not guilty and claimed trial. Prosecution, to prove its case, examined as many as 13 witnesses and also produced documentary evidence to prove guilt of the accused. Thereafter, separate statements of both the accused were recorded u/s 313 Cr.P.C. They denied the allegation of demand of dowry. Appellant - husband further stated that the deceased had died as a result of accidental receipt of burns. He further stated as under:

I am a victim of a frame up. My wife Babita was victim of accidental fire caught by her while cooking food. The stove on which she was working burst and caused extensive burns on her person. I have never demanded anything from Babita at any point of time. Even Sunderpal and Lakhpati had descended on the scene and she had told both of them that she had caught fire because of accidental stove burst. This case would not have been registered against me had we not insisted that the entire Stridhan shall be returned to the father of the deceased on the very day of the Tehrnvi ceremony.

Accused Bhateri Devi also denied her involvement in the crime in the aforesaid manner. She pleaded innocence by stating that she never demanded anything from the deceased or her parents. She pleaded false implication.

Accused also led evidence in defence. Trial Court thereafter, on appraisal of evidence, as led by the parties, came to a conclusion that the prosecution had failed to prove guilt of Bhateri Devi and consequently acquitted her of the charges framed against her. However, appellant - husband, was convicted and sentenced, as is mentioned in the earlier part of this judgment. Hence this appeal.

Shri H.S. Gill, Senior Advocate, counsel for the appellant- husband has vehemently contended that the trial Court has erred in convicting him. By making reference to the statements of the prosecution witnesses, he argued that the ingredients to constitute offence u/s 304B IPC were not proved on record. Even as per evidence on record, marriage between the appellant-husband and the deceased was performed in a very simple manner. Allegations regarding demand of dowry are vague. The witnesses have failed to state the date and time when any such demand was raised. He further argued that even as per prosecution witnesses, demand of Rs. 50,000/-was raised with a view to start a shop. Besides that, no other demand was raised. By placing reliance upon judgment of the Hon''ble Supreme Court in Appasaheb and Anr. v. State of Maharashtra 2007(1) R.C.R. 747, he contended that even if above said demand was proved, that will not bring case of the prosecution within four parameters of Section 304B IPC. To support his contention, he also relied upon the ratio of Division Bench judgment of this Court in State of Punjab v. Daljit Singh 1999(2) R.C.R. (Criminal) 690 and two Single Bench judgments of this Court in Naresh Kumar v. State of Haryana 2000(1) R.C.R. (Criminal) 547 and Virender Singh v. State of Haryana 2004(1) R.C.R. (Criminal) 625 He, in the alternative, contended that at the maximum, offence alleged against the appellant may fall under the provisions of Section 498A IPC.

With regard to roll of Bhateri Devi, who is respondent in the connected appeal, filed by the State, Shri Gill argued that allegations against her are vague and it appears that she has been roped in, only being mother- in-law of the deceased.

By stating that it has become a natural tendency to rope in relatives of the husband in case a woman dies in her in-laws'' house, Shri Gill, to support his argument, placed reliance upon ratio of judgments of the Hon''ble Supreme Court in Kans Raj Vs. State of Punjab and Others, , and Salamat Ali and another Vs. State of Bihar, . He prayed that appeal of appellant - husband be allowed, impugned judgment of conviction and order of sentence be set aside and he be acquitted of the charges framed against him. With regard to Bhateri Devi, respondent, he contended that judgment of her acquittal is perfectly justified and prayed that the appeal filed by the State against her be dismissed.

Contentions, raised by counsel for the appellant - husband, have vehemently been opposed by Shri Tarunveer Vashisth, Additional Advocate General, Haryana. By making reference to the prosecution evidence on record, particularly statements made by PW6, PW8 and PW12, he argued that the judgment qua appellant - husband was correct. Wife of the appellant-husband had died within six months of the marriage. Death was as a result of burn injuries and there are allegations against the appellant -husband and his mother that soon before death, Kavita alias Babita was subjected to cruelty / harassment by the accused and she was being forced to bring money from her parents. By placing reliance upon judgment of the Hon''ble Supreme Court in Sunil Bajaj v. State of M.P. 2002 Supreme Court Cases (Criminal) 608, and Sham Lal Vs. State of Haryana, , he vehemently contended that the appeal, having no substance , be dismissed. He, in the alternative, prayed that in case this Court comes to a conclusion that the prosecution has failed to establish ingredients of Section 304B IPC against the appellant, in view of the facts of this case, the appellant and his mother are liable to be convicted and sentenced for commission of an offence u/s 306 IPC. To support his contention, he has relied upon ratio of judgment of the Hon''ble Supreme Court in K. Prema S. Rao and Another Vs. Yadla Srinivasa Rao and Others, and two Single Bench judgments of this Court in Gurbachan Singh and Ors. v. The State of Punjab (Criminal Appeal No. 90-SB of 1988), decided on August 6, 2003, and Naveen Kumar etc. v. State of Haryana (Criminal Appeal No. 31-SB of 1998), decided on July 9, 1998. He further argued that immediately after marriage, the deceased was subjected to cruelty for bringing less dowry. She was forced to raise a demand of Rs. 50,000/-from her parents on a pretext that the appellant-husband intended to set up a shop. Shri Vashishth further contended that the appellant-husband has miserably failed to prove on record that it was an accidental death. To say so, he has refered to the statement made by the Investigating Officer Pirthi Singh (PW13), who, in his testimony, has specifically denied that it was a case of bursting of a stove. He argued that in view of facts of the case, conviction of the appellant under Sections 498A and 304B IPC was perfectly justified.

So far as case of Bhateri Devi, mother of appellant - husband is concerned, Shri Vashishth, by making reference to the statements of PW6, PW8 and PW12, contended that against her also, there exists sufficient evidence on record to convict her for the offences, with which she was charge-sheeted. She had harassed the deceased for bringing less dowry. The trial Court has erred in not properly appreciating the evidence of above said witnesses and other evidence on record, while acquitting her. He prayed that the appeal filed by the State against her acquittal be allowed and she be also convicted and sentenced for the offences along with the appellant -husband. He further prayed that the appeal filed by the husband having no substance be dismissed and the appeal filed by the State be allowed.

After going through the record of the case and hearing counsel for the parties, it is to be seen as to whether the prosecution was successful in bringing on record evidence that the appellant -husband had committed the offences under Sections 498A and 304B IPC. It is proved on record that marriage of Kavita alias Babita was solemnised with the appellant on April 17, 1998, and she died on October 29, 1998, i.e., within seven years of her marriage. Death was unnatural as it was on account of burning.

Their Lordships of the Supreme Court in Sunil Bajaj''s case (supra), after noticing provisions of Section 304B IPC, opined that the following essential ingredients must be satisfied before a death can be termed as dowry death:

i) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances;

ii) Such death must have occurred within 7 years of her marriage;

iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;

iv) Such cruelty or harassment must be for or in connection with demand of dowry.

To the same effect is opinion of their lordships of the Supreme Court in Sham Lal''s case (supra).

In view of evidence on record, as discussed in the earlier part of the judgment, it can safely be held that first two ingredients, to constitute an offence u/s 304B IPC are complete, as the death had occurred within seven years of the marriage and it was unnatural. Now it is to be determined as to whether remaining two essential ingredients are made out from the evidence on record or not.

As per contents of FIR Ex. PD/1, recorded on October 30, 1998, and deposition, made by the prosecution witnesses in Court, it was allegation against both the accused that immediately after marriage, PW6 Mahabir Parshad, brother of the deceased, brought the deceased to her parents'' house on the eve of Dussehra festival and the deceased informed her parents that her in-laws were harassing her for bringing insufficient dowry and were regularly demanding cash amount of Rs. 50,000/-. It was further allegation against the accused that on October 24, 1998, the appellant visited his in-laws house. He enquired from them that as to when they will make payment of Rs. 50,000/-. Parents of the deceased showed their inability to arrnage that amount. However, it was promised that on retirement of PW8, father of the deceased, requisite amount will be paid. Subsequent thereto, Kavita alias Babita died on October 29, 1998. When we peruse depositions made by PW6, brother of the deceased, PW8, father of the deceased, and PW12, who was mediator at the time of marriage, we find that the allegations of demand of dowry against Smt. Bhateri Devi are vague in nature. It has come on record that marriage was solemnised in a simple manner. It appears that after marriage, husband of the deceased had turned greedy and tried to extract money, through the deceased, from her parents and raised a demand of Rs. 50,000/-on the pretext that he intended to set up a shop. When that demand was not fulfilled, the deceased was harassed, which led her to commit the suicide. PW6, in her statement, has specifically admitted that there was no demand other than cash amount of Rs. 50,000/-.

Now it is to be seen as to whether demand of Rs. 50,000/-to set up a shop, would amount to harassing the deceased, before her death in connection with demand of dowry. We are of the view that to that extent, in view of ratio of judgment of the Hon''ble Supreme Court in Appasaheb''s case (supra), the prosecution has failed to complete last two ingredients to constitute an offence u/s 304B IPC. In that case, while dealing with a similar situation, wherein it was allegation against the husband that he had asked his wife to bring money from her parents for domestic expenses, it was observed as under:

Two essential ingredients of Section 304B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for "dowry". The explanation appended to Sub-section (1) of Section 304B IPC says that "dowry" shall have the same meaning as in Section 2 of Dowry Prohibition Act, 1961. Section 2 of Dowry Prohibition Act reads as under:

Definition of "dowry". In this Act "dowry" means any property or valuable security given or agreed to be given either directly or indirectly.

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (shariat) applies.

In view of the aforesaid definition of the word "dowry" any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statues that if the Act is passed with reference to a particular trade, business or transaction and words are used which every body conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words are construed as having that particular meaning (See Union of India and others Vs. Garware Nylons Ltd. etc., and Chemical and Fibres of India Ltd. Vs. Union of India and others, . A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for "dowry" as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure. Since an essential ingredient of Section 304B IPC viz, demand for dowry is not established, the conviction of the appellants cannot be sustained."

To the same effect is the ratio of judgment of a Division Bench of this Court in Daljit Singh''s case (supra) and two Single Bench judgments in Naresh Kumar''s case (supra) and Virender Singh''s case (Supra). Counsel for the appellant -husband has failed to show that conviction and sentence awarded to the appellant - husband u/s 498A IPC is not justified.

In view of facts, mentioned above, we are of the opinion that conviction of the appellant - husband u/s 304B IPC cannot be sustained. However, at the same time it is to be seen as to whether he can escape his liability in pushing his wife to commit suicide and end her life within six months of the marriage. It is apparent from the records that immediately after marriage, the matrimonial alliance ran into rough weather. The appellant proved to be a greedy husband, who harassed his wife for bringing less dowry and forced her to demand Rs. 50,000/-from her parents on a pretext that he wanted to set up a shop.

In defence, a positive stand has been taken by the accused that the deceased was preparing food and she caught fire due to bursting of a stove. By leading evidence in defence also, an attempt was made to prove that fact.

We are of the view that the defence taken was only an afterthought. Circumstances will not tell lies. As per evidence of defence, husband and wife were residing in one room (Chaubara) on the first floor. It obviously means that they were using that one room as their kitchen, bed room etc. Besides utensils to be used in the kitchen, that room was supposed to have beds and other articles of use by the couple. In the site plan Ex. PA, existence of beds and any other material being used in the kitchen has not been shown. Alleged pieces of burst stove were also not noticed by the Investigating Officer. If it was a case of fire by bursting of a stove, it would naturally have caused damage to the other articles, lying in that room but nothing of the sort was detected by the Investigating agency. The defence witnesses have made an attempt to prove theory of stove bursting but in view of evidence on record, their testimony is not worthy of any credence. At no time, any representation was made to the higher authorities that the Investigating Officer has concocted a different story than the one existing at the spot.

In view of above mentioned facts and circumstances, the appellant - husband can be held guilty for abetment of commission of offence of suicide u/s 306 IPC. Abetment can be by performing a positive act or may be by conduct or omission. The evidence, as existing on record, lead us to an irresistible conclusion that the appellant had harassed the deceased to such an extent that she was forced to finish her life. A Single Bench of this Court in Naveen Kumar''s case (supra) has observed as under:

No sane lady would try to finish her life until and unless she is subjected to cruelty to such an extent that it had compelled her to finish herself for all times to come from this beautiful world. When a woman agrees for a marriage, she does not expect death under unnatural circumstances but the expectations are that she would get love and affection and financial security at the hands of her husband. If her those hopes are frustrated by the positive act of the husband or by wilful negligence of the husband, in my opinion, it will constitute abetment within the meaning of Section 109 IPC, punishable u/s 306 IPC, if in pursuance of that abetment, the death of a person takes place.

To the same effect is the opinion of another Single Bench judgment of this Court in Gurbachan Singh''s case (supra) and similar is the situation in the case of Raj Rani and Anr. v. State of Punjab (Criminal Appeal No. 44-SB of 1995), decided on September 24, 2003. (In the cases referred to above, this Court has come to a conclusion that as cruelty and harassment, in connection with demand of dowry, soon before death were not proved, conviction of the appellant(s) in those cases u/s 304B IPC was not justified. However, keeping in view facts and circumstances of those cases, appellant - husband was found to be guilty of commission of offence u/s 306 IPC.)

Now it is to be seen as to whether the appellant in this appeal can be convicted and sentenced for commission of offence u/s 306 IPC or not. Their Lordships of the Hon''ble Supreme Court in K. Prema S. Rao''s case (supra), while dealing with the similar situation, came to a conclusion that even though the charge was framed only u/s 304B IPC, the person can be convicted u/s 306 IPC, in a case where all ingredients, necessary for framing of a charge under that section are available on record. Hon''ble the Supreme Court, after discussing facts in that case, has opined as under:

Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed u/s 304B and in the alternative, Section 498A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence u/s 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention Section 306 IPC with Section 498A IPC does not preclude the court from convicting the accused for the said offence when found proved. In the alternate charge framed u/s 498A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 Cr.P.C. needs reproduction.

Where it is doubtful what offence has been committed.-(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is known to have committed, although he was not charged with it. 23.The provision of Sub-section (2) of Section 221 read with Sub-section (1) of the said Section can be taken aid of in convicting and sentencing Accused 1 of offence of abetment of suicide u/s 306 IPC along with or instead of Section 498A IPC.

Section 215 allows the criminal Court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 Cr.P.C. which reads:

Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

Facts, discussed above, clearly indicate that the appellant - husband had breached his sacroscent oath, which he had taken at the time of performance of his marriage. Immediately after marriage, he started harassing the deceased for want of dowry and then compelled her to demand Rs. 50,000/- from her parents, which they were not in a position to pay. In view of facts, mentioned above, legal presumption as envisaged in Section 113A of the Indian Evidence Act, 1872, can be raised against the appellant - husband. Despite leading evidence in defence, he has failed to rebut charges with regard to commission of an offence u/s 306 IPC. Accordingly, we hold him guilty for the commission of the said offence.

Now we deal with Criminal Appeal , filed by the State, against acquittal of Smt. Bhateri Devi (mother of the appellant), respondent in the connected appeal. In FIR, it has been stated that she along with appellant - husband started harassing the deceased for bringing less dowry. During trial, prosecution witnesses have failed to give further details with regard to harassment of the deceased at the hands of Bhateri Devi. Rather it was admitted by PW6, in his deposition that besides demand of Rs. 50,000/-, no other demand was raised. From the evidence on record, it appears that it was the appellant - husband, who wanted to extract money from parents of the deceased to establish a shop and he coerced her to demand money from her parents. Smt. Bhateri Devi, who is an old lady, was not to get any benefit if some shop was going to be established by the appellant - husband at Delhi. As per evidence on record, accusation against her might be an exaggeration.

Their lordships of the Supreme Court in Kans Raj''s case (supra), while dealing with similar facts and circumstances, has opined that relatives of the husband cannot be involved in cases, relating to demand of dowry etc., merely on the basis of conjectures, unless an overt act is attributed to the them. To the same effect is the opinion expressed by the Hon''ble Supreme Court in Salamat Ali''s case (supra). As per evidence on record, soon before death, Rs. 50,000/-were demanded only by the appellant- husband on October 24, 1998.

In view of the above, we are of the opinion that the order of acquittal passed in favour of Smt. Bhateri Devi, respondent, is perfectly justified. Consequently, Criminal Appeal No. 448-DBA of 2000, filed by the State, is dismissed.

So far as appellant - husband is concerned, in view of facts, mentioned above, his conviction and sentence u/s 498A IPC, as ordered by the trial Court, are maintained. However, his conviction and sentence u/s 304B IPC is set aside. Instead, he is held guilty for commission of offence u/s 306 IPC and sentenced to undergo rigorous imprisonment for six years and to pay a fine of Rs. 1,000/-. In default of payment of fine, he shall further undergo RI for one month. Both the sentences shall run concurrently. Impugned judgment and order of the trial Court stands modified to the extent indicated above. Criminal Appeal No. 1212-SB of 1999 stands disposed of accordingly.