State of Haryana vs Sunil Kumar

R.L. Anand, J.

State of Haryana has filed the present criminal appeal and it has been directed against the ` dated 27.7.1996 passed by the court of Additional Sessions Judge, Jagadhri who acquitted the respondents from the charges under Section 304B of the Indian Penal Code and 498A of the Indian Penal Code by extending the benefit of doubt. It may be mentioned here that Hon''ble Division Bench gave permission to the State to a limited extent and leave was granted only qua respondents No. 1 and 3 namely Sunil Kumar and Satya Devi to the limited section 498A of the Indian Penal Code.

The brief facts of the case that Sunil Kumar (husband), his unmarried sister Sajni and his mother Smt. Satya Devi were tried for offences under sections 304B and 498A of the Indian Penal Code read with Section 34 of the Indian Penal Code in the Trial Court for subjecting Smt. Rubi to cruelty and causing her dowry death. As per prosecution story Smt. Rubi daughter of Vishwamitter was married with Sunil Kumar accused, resident of House No. 404 L, Sarani Chowk, Yamuna Nagar, about four years prior to 29.8.1993. Vishwamitter (complainant) gave dowry according to his capacity at the time of marriage. After some days of marriage Rubi''s husband Sunil Kumar, motherin law Satya Devi and Nanad Sajni started harassing Rubi for dowry. About two months before the death of Rubi, the complainant on the demand of the accused gave a cooler to her daughter. But the accused were still not happy. Then they started harassing Rubi for the demand of refrigerator. About 20 days prior to the occurrence of death, the complainant''s wife Nirmala Kumari went to the house of the inlaws of her daughter Rubi when she was told by Rubi that she had been given beatings even on that day. Nirmala Devi asked the accused to send her daughter with her but the accused refused to send Rubi with her mother. On 28.8.1993, Rubi was taken to the hospital of Dr. B.S. Gaba at 10.10 p.m. As it was suspected case of poisoning the doctor sent an intimation to the police. On receipt of information, ASI Surat Kant went to the hospital and gave an application to the doctor for obtaining his opinion about the fitness of Rubi to make her statement. On the same night i.e. the night intervening 28/29.8.1993 at 2.30 a.m. Rubi expired. A memo was again sent to the police station at which ASI Surat Kant went to the hospital of Dr. Gaba where he recorded the statement of Vishwamitter Ex.PG/1 which led to the registration of the FIR Ex.P.H.

Investigation started and post mortem was got conducted on the dead body. Photographs of the dead body were also taken. A portion each of the stomach and its contents, small intestines, large intestines, liver, spleen and kidney was sent to the Chemical Examiner for determining the cause of death. The other formalities of the investigation were carried out and then all the accused were challaned in the court of Area Magistrate who supplied copies of the documents to the accused as required under law and committed the accused to the court of Sessions vide orders dated 15.1.1994.

Vide orders dated 17.2.1994, the Trial Court framed charges against the respondent and their coaccused under sections 498A, 304B read with Section 34 of the Indian Penal Code. Charges were read over and explained to the accused to which they pleaded not guilty and claimed trial.

In order to prove charges, prosecution examined PW.1 Jaswinder Singh, PW.2 Head Constable Amar Singh, PW.3 Sub Inspector Sadhu Ram, PW.4 ASI Bharat Singh, PW.5 Dr. Arun Joshi, PW.6 Sushil Kumar, PW.7 Dr. B.S. Gaba, PW.8 Vishwamitter (complainant), PW.9 Nirmala Kumari mother of the deceased, PW.10 Dharam Pal uncle of the deceased, PW.11 ASI Surat Kant, PW.12 Inspector Dhanpal Singh and PW.13 Raj Kumar photographer. Prosecution also tendered in evidence affidavits of formal witnesses besides report of the Criminal Examiner.

Statement of the accused was recorded under section 313 Cr.P.C. The defence of Sunil Kumar at the trial was as follows :

"I am innocent. Rubi my wife was living happily with me. No dowry was taken or demanded by us from her. She was not harassed by me or my family members. No complaint about any demand was made by her during her life time. Sufficient amount was deposited by me in her name and my name jointly. As a matter of fact she was chronic patient of diseases. She was having constant fever and gastric trouble. She was got treated from different doctors including Dr. Gulati, Dr. Gaba, Dr. Kalra and Dr. Dua but she did not improve. She had also become underweight because of illness. On the day of her death, she was under the treatment of Dr. Gaba since morning but her condition worsened in the evening but she could not be saved inspite of best possible efforts on our part. She was never tortured nor she died unnatural death. The case has been got registered after due deliberations at the instigation of Bharat Bhushan and Dharam Pal to exploit the unfortunate death of my wife."

The defence of Sajni was as follows :

"I am innocent. Rubi was living a happy married life. There was no demand of dowry from our side nor we harassed her or beat her. She also did not make any complaint to this effect during her life time. Rubi was already suffering from chronic ailments and was under treatment of various doctors. On the day of death also, she was under the treatment of Dr. Gaba since morning but her condition did not improve. She died a natural death. She used to remain depressed because of illness."

The plea of Satya Devi respondent was as follows :

"I am innocent. Rubi was already suffering from chronic ailment and she was under treatment of various doctors including Dr. Gaba, Dr. Gulati, Dr. Kalra, Dr. Dua and others. Rubi had gone very underweight due to sickness. We never demanded any dowry nor she was harassed in any manner."

In defence accused placed on record certain documents Ex.DC, Ex.DD, Ex.DE to Ex.DG and Ex.DH and closed the case.

Learned Trial Court gave the benefit of doubt to the three accused and acquitted them of the charges. The learned Trial Court framed three points for determination. Firstly, whether death of the lady took place within seven years of her marriage, secondly, whether the death is unnatural and thirdly whether the deceased was subjected to harassment on account of demand of dowry. These points were formulated in order to determine whether the respondents had committed offence under section 304B IPC or not.

The trial Court in para 11 of the judgment held as follows :

"11. Now coming to the third and the most important ingredient which is of harassment for demand of dowry, it has been laid down by a Division Bench of our own Hon''ble High Court in Baljit Singh v. State (U.T. Chandigarh), 1996(2) Recent C.R. 187 that presumption of dowry death under section 113B of the Indian Evidence Act can be drawn not only if the death was unnatural and took place within 7 years of marriage but when it is also proved by the prosecution that there was harassment on account of demand of dowry. The prosecution in order to prove that Smt. Rubi Malhotra was subjected to harassment on account of demand of dowry, has relied upon the statement of PW.8, Vishwamitter, PW.9 Nirmala Kumar and PW.10 Dharam Pal who are father, mother and uncle respectively of Rubi deceased. The complainant and star witness of the prosecution is Vishwamitter PW.8 who was the first to be examined of the above named three witnesses. The exact account of utterances made by him before the court reads as under :

"After 11/2 or 2 months of the marriage, my daughter came to me and told my wife that her motherinlaw and sisterinlaw said that this was not given and that was not given. After one year of the marriage, I gave a cooler on the demand of Rajni. She further told that she was beaten by Sunil. She further said that whatever her motherinlaw said, Sunil used to do."

His statement about harassment caused to his daughter by the accused is, thus, quite vague except regarding the demand of cooler. The deposition regarding the demand of cooler is also contradictory to his statement Ex.PG/1 made before the police. Before the police he stated that he met the demand of cooler about two months before death of Rubi whereas before the court he deposed that he gave cooler after one year of the marriage on the demand of Rajni accused. He did not utter even a word about the demand of refrigerator, if any, made by the accused. This witness admitted in crossexamination that Sunil accused and his daughter Rubi had gone to Vaishno Devi and they also took with them his (Vishwamitter''s) Bhanja (sister''s son). He further admitted that about 11/2 or two months before the death Sunil and Rubi had also gone to Haridwar. The close scrutiny of the evidence of this witness, thus brings out that Sunil loved his wife Rubi. He used to take her for sojourn to different places. He also deposited money in FDs in the joint account with his wife Rubi vide Ex.DE to Ex.DJ, Ex.DM and Ex.DN. The accused also placed on file bills Ex.DC/1 and Ex.DD to show that they were already in possession of a refrigerator and colour TV before marriage. So all these circumstances cast suspicion that the accused ever made any demand of dowry and they subjected Rubi to harassment for that demand."

The trial court stated that since the deceased was not subjected to cruelty or harassment in connection with the demand of dowry, therefore, the offence under section 304B IPC is not made out and also Trial Court held that ingredients of Section 498A of the Indian Penal Code are also not attracted because the prosecution witnesses have been disbelieved on the point of harassment etc. under Section 304B of the Indian Penal Code.

This is an appeal against acquittal. So far as the powers of the High Court are concerned, it has the power to reappraise the evidence like the Trial Court. The only benefit for which the respondents are entitled to that if two interpretations are possible, the interpretation which goes in favour of the accused should be adopted by the High Court. But if the High Court finds on appraisal of the entire evidence that the appraisal of the evidence by the trial court is illegal, then the High Court should certainly interfere in the findings of the Lower Court. So far as acquittal of the respondents under Section 304B IPC is concerned, the Hon''ble D.B. has not granted permission to the State to agitate that issue. We have to see whether the findings under sections 498A of the Indian Penal Code for which permission was granted to the State is made out or not ? Section 498A lays down that 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. Explanations (a) and (b) which have been added to Section 498A of the Indian Penal Code are important. As per explanation (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 explanation (b) means 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. If it stands proved by the prosecution that the deceased was subjected to harassment in connection with demand of any property or valuable security, the respondents would be guilty for the offence under section 498A IPC. It is admitted case that the marriage of Smt. Rubi only survived for four years. In such like cases, the High Court has repeatedly held that the relations/friends of the family of the deceased are best witnesses. Though after the death of the girl, the atmosphere in the family of the girl would always subcharged and they would be the first person to implicate every body in the house of the inlaws of the deceased. The complainant in this case is father of the deceased. He appeared as PW.8 and categorically stated that sufficient dowry articles were given to his daughter in marriage and after about 11/2 or 2 months of the marriage, his daughter came to him and told his wife that her motherinlaw and sisterinlaw taunted that dowry was not given. After one year of the marriage, the complainant gave a cooler on the demand of Sajni. It has been further stated by the complainant that the deceased complained to him that she was beaten by Sunil. Further the deceased complained that what ever her motherinlaw said, Sunil used to do the same thing. Let us see what has been stated by Nirmala Kumari mother of the deceased. According to this witness the marriage was performed very well according to their sources. One scooter was also given in the marriage. After a few days of the marriage, Rubi came to them and told that her motherinlaw, her husband and her sisterinlaw Sajni harassed her for the demand of dowry. Also it has come in the statement of Nirmala Kumari that about two months prior to the death of Rubi, they purchased a cooler for them but still they were not satisfied. About 20 days before her death, she went to the house of the accused. Then her daughter told her that her motherinlaw, sisterinlaw and her husband had beaten her on that day. Also it has come in the statement of Nirmala Kumari that she saw signs of injuries on the face her daughter. The accused were making demand of fridge. Further Smt. Nirmala Kumari stated that she asked all the three accused to send the deceased with her but they refused. PW.10 Dharam Pal also stated that about 2/3 months prior to this occurrence, he came to know that the deceased was harassed by her motherinlaw, husband and grand motherinlaw for the demand of cooler. 20 days prior to this occurrence, Nirmala went to the house of Rubi to meet her and she told Nirmala that she was beaten by the accused and they did not allow her to go to the house of her parents. Thus there are consistent statements of Vishwamitter, his wife Nirmala Kumari it stands proved that the deceased was subjected to harassment just after a few days of marriage and the parents of the deceased to part with a cooler. In this regard the offence of cruelty is made out. The point for determination would be that who would be direct beneficiary of such cooler. I had already stated above that after the death of a girl in the house of her inlaws atmosphere of death is mainly subcharged. It will also be tendency on the part of the parents to implicate all the relations of the husband so as to teach them a lesson. After all the daughter of the complainant died in the house of her inlaws. Smt. Satya Devi would be last beneficiary of the alleged demand of cooler though of course the cooler would be installed at her residence. Therefore, her case is distinguishable from the case of her son Sunil Kumar as there is consistent evidence coming from the mouth of the father and mother that they had parted with a cooler because the deceased was subjected to harassment on account of inadequate dowry and that inlaws were not satisfied with the dowry articles which were brought by the deceased.

Faced with this difficulty, learned counsel appearing on behalf of the respondent submitted and drew my attention to para 11 of the judgment of the trial court and submitted that reasons given by the Trial Court in acquitting the respondents with the allegations under section 304B IPC are not convincing and these findings are based on facts which should not be disturbed by the High Court. In support of his contention learned counsel for the respondents also relied upon the judgment of the Supreme Court in 1998(5) JT SC 220 Jaipal and another v. State of U.T. Chandigarh in which it has been laid down as follows :

"Each reason based on proper appreciation of evidence and that the reasons given by the Trial Court are not found to be perverse. In that eventuality the High Court should not have disturbed merely because a different view can be taken by the High Court."

There is no quarrel with the proposition of law as laid down by the Hon''ble Supreme Court, as already stated in the earlier portion of this judgment. But if there are illegal findings given by the Trial Court with regard to ingredients of Section 498A IPC and the Trial Court has not rightly appreciated the evidence in that regard, in that eventuality the power of the High Court for reappraisal of the evidence is the same as that of the Trial Court itself. Ingredients of Section 304B IPC are totally different than that of Section 498A IPC. The scope of Section 498A IPC is wider as compared to Section 304B IPC. Learned Trial Court has not given any cogent reason why Shri Sunil Kumar is not guilty of the offence under section 498A of the Indian Penal Code. In this view of the matter, I partly allow the appeal of the State against Sunil Kumar who stands convicted under section 498A of the Indian Penal Code and he is directed to undergo rigorous imprisonment for a period of six months. So far as State appeal against Satya Devi is concerned, I am of the opinion that allegations of cruelty qua her are not established. The State appeal against Satya Devi stands dismissed. Let intimation about partial acceptance of this appeal be sent to Chief Judicial Magistrate, Jagadhri so that respondent may be taken into custody and he may be asked to serve the sentence. It may be clarified that respondent Sunil Kumar shall take the benefit of detention period for which he remained under custody during investigation of the case.