Subhash Chand vs Punjab State

R.L. Anand, J.

By this order, I dispose of Crl. Appeal No. 981SB of 1998 (Subhash Chand and others v. State of Punjab) and Crl. Revision 256 of 1998 (Kuldip Singh v. Subhash Chand etc.), as in the opinion of this court, both these cases can be disposed of by one judgment.

The criminal appeal has been filed by Subhash Chand (Fatherinlaw), Kamal Kumar (Husband), Smt. Indira Devi (Motherinlaw) and Gulshan Kumar (Devar) of Sunita, deceased, while the criminal revisional has been filed by Kuldip Singh, the father of the deceased, in which he has prayed for the enhancement of the sentence and also prayed that the appellants be convicted u/s 302, IPC.

Before I proceed further into the matter, I may also say that besides the four appellants referred to above, Miss Sonia, the unmarried daughter of Subhash Chand was also named as an accused but she was declared as a Proclaimed Offender and for that reasons she could not be tried along with her coaccused; namely Subhash Chand, Kamal Kumar, Indira Devi and Gulshan Kumar.

The brief facts or the face can be noticed in the following manner :

Kuldip Singh son of Devi Ditta Mal resident of Janakpuri, made a statement, Ex. PA, before ASI Gurmail Singh on 14.4.1995, wherein he stated that he runs a factory in Janakpuri and has four children, i.e. two daughters and two sons. Sunita, deceased was aged about 24 years at the time of the occurrence and she was her eldest daughter and was married to Kamal Kumar, appellant No. 2, above two years back. Precisely stating, the marriage of Sunita with Kamal Kumar took place on 12.3.1997 (12.3.1003 ?) and the present occurrence has taken placed on 13.4.1995. Elaborating the allegations, it is further alleged by Kuldip Singh in his statement that he had given sufficient dowry at the time of the marriage of his daughter according to his capacity. After about one year of the marriage, Sunita brought to his notice by weeping that her husband Kamal Kumar, her fatherinlaw Subhash Chand, motherinlaw Indira Devi, sisterinlaw Sonia and brotherinlaw Gulshan Kumar, were harassing her for bringing less dowry. She further complained that her fatherinlaw had not been allowing her husband to enter in the factory. The complainant prevailed upon his daughter by saying that the daughters are supposed to live in the house or his inlaws. Acting upon the advice of her father, Sunita went to the house of her inlaws. Thereafter, Sunita gave birth to a daughter and some articles were also given on this occasion. According to the complainant, his daughter lived with the accused for some time. 15 days prior to the date of occurrence, Sunita, again, came to the house of her father and complained to him in the presence of Santosh Kumari, her mother and Kharaiti Lal, PW, that the family of her inlaws had been harassing her for bringing less dowry and they told her to bring Rs. 1 lac from the complainant. Again, the complainant prevailed upon his daughter and in the company of his daughter went to the house of the accused where he found that the appellants and Sonia were present. The complainant told them that he was a poor person and was unable to give more dowry. Upon this, Subhash Chand told the complainant that his factory had fallen into losses and that he should give Rs. 1 lac within a week falling which his daughter would not live in his house. On 13.4.1995 at 9 p.m., a message was received on telephone that Sunita has been burnt to death by sprinkling Kerosene oil upon her body by the appellants and Sonia. Resultantly, the complainant went to the house of the accused along with other persons of the Mohalla and found the dead body of his daughter. On the above allegations, the statement, Ex. P.A. was recorded. The I.O. made the endorsement Ex. PA/1, and it was sent to the police station for the registration of the case, on the basis of which formal FIR Ex. PA/2, was recorded. Thereafter, the I.O. went to the spot and prepared the inquest report, Ex. PW10/A. He prepared the request for post mortem and the dead body of Sunita was sent to the mortuary for postmortem examination. He also took into possession one hall burnt chaddar, one blanket, one chappal and one can or kerosene oil along with other articles by a separate memo. He also took into possession the wearing apparres found on the person of Sunita vide recovery memo, Ex. PA. He recorded the statements of the witnesses and prepared the rough site plan, Ex. PW10/B. He arrested the four appellants on 18.4.1995. The I.O. also recorded the disclosure statements, Ex. PJ, PF, PG and PM, of Kamal Kumar, Subhash Chand, Gulshan Kumar and Indira, respectively, and in pursuance of those disclosure statements, certain dowry articles were recovered. The I.O. also took into possession a photo album and two ration cards. Kuldip Singh, complainant, also produced the wedding card of Sunita. Sonia in this case could not be arrested and she was declared a Proclaimed Offender. Finally, on the completion of the investigation of the case, the appellants were challaned u/ss 304B, 120B and 406, IPC, in the court of the Addl. CJM, Ludhiana, who supplied the copies of the documents to the accused according to law free of cost and vide commitment order dated 5.9.1995 committed all the accused to the court of Sessions to face trial in view of the fact that the offence u/s 304 B, IPC, was exclusively triable by the court of sessions. Vide order dated 15.1.1996, the trial court framed the charges u/ss. 304B, in the alternative u/s 302, IPC, u/ss 498A and 406, IPC. The charges were read over and explained to them to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined Kuldip Singh, complainant, PW1, Khairati Lal, PW2, Kulwant Kumar, PW3, Jasbir Singh, PW 4, Harminder Singh, Draftsman, PW5, Basant Ram, PW6, Constable Sukhdev Singh, PW7, Dr. S.K. Sharma, PW8, who conducted the postmortem examination on the dead body of Sunita, Constable Paras Singh, PW9 and ASI Gurmail Singh, PW10.

The statements of the accused were recorded u/s 313, Cr.P.C., and the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances. The plea of Subhash Chand, fatherinlaw, was as follows :

"I have never demanded or maltreated the deceased neither my son or my relations had ever demanded or maltreated the deceased at any stage, in fact the deceased was boiling the milk and accidentally due to bursting of stove she caught fire and she was removed from there and blanket was put on her for extinguishing the fire. We had telephoned Kuldip Singh regarding the receiving of burn injuries in accidental bursting of stove. I along with my wife were residing separately from Kamal Kumar and the deceased."

The stand of the other three accused; namely, Kamal Kumar (husband), Indira Devi (motherinlaw) and Gulshan Kumar (brotherinlaw) was the same as taken up by their coaccused Subhash Chand.

When called upon to enter into their defence, the accused examined Gurpal Singh, Record Keeper and Cashier, State Bank of India, who deposed that there was no record relating to Sunita, in the bank, as DW1, DW2 Tilak Raj, whose statement I will deal to some extent in the later portion of this judgment while examining the evidence of the prosecution on the yardstick of probability. DW3 is Constable Vikram Singh and through his statement the accused wanted to impeach the conduct of the complainant Kuldip Singh that he was involved in gambling.

The learned trial court partly believed the prosecution story and came to the conclusion that the accused had not committed any offence u/s 302, IPC, and in this regard the evidence which has been led by the prosecution is unsatisfactory. This has been so held by the trial court because the prosecution wanted to improve upon its version by converting the offence from section 304B to section 302304, IPC. In this regard, there was not an iota of allegation in the statement, Ex. PA, made by the complainant. The learned trial court, however, convicted all the appellants u/s 304B, IPC. No separate sentence was passed u/s 498A IPC, keeping in view that the appellants had been convicted u/s 304B, IPC. The charge u/s 406, IPC, also failed. All the appellants were awarded the sentence of 10 years each u/s 304B, IPC. Aggrieved by their conviction and order of sentence, the present appeal and the criminal revision.

I have heard Mr. R.S. Cheema, Sr. Advocate, assisted by Mr. Vikas Jain, Advocate, on behalf of the appellants, Mr. Vikas Cuccuria, AAG, Punjab, on behalf of the State, and Mr. G.S. Bhatia, Advocate, who is assisting Mr. Cuccuria and also supporting the criminal revision filed by Mr. Kuldip Singh, and with their assistance have gone through the records of this case.

Even a trio would agree that in a case of dowry death, the best witnesses are the relations and the friends of the family. This is so because the victim of the crime would always repose her confidence in her parents, friends of her parents and close relations. It is equally true that blood is thicker than the water. It a young daughter of a person dies in the house of her in laws, the feelings or such an unfortunate father can always be well understood. His hopes had been frustrated. He was thinking that his daughter will live in a peaceful atmosphere in the house or her inlaws. She would get love and affection but instead of that he had been hearing the cries and weeping of his daughter. That is why it is said that if a daughter of a person is happy in the house of her inlaws, his seven generations will become happy in this regard. But here is a case where the daughter of Kuldip Singh could not become happy in the house of her inlaws and she died a treacherous and most painful death known to the medical science. In these circumstances, Kuldip Singh would be the first person to ensure that he should take revenge on the family of his soninlaw and he would be the first person to implicate everybody in the world so that they should also suffer as his daughter had been suffering. In this background, I have to examine the testimony of Kuldip Singh by branding him as a probable witness of the occurrence. The broad human probabilities are the basic yardstick on which the evidence of a criminal case can be assessed.

The learned counsel for the appellants tried to convince this court, at the first instance that the offence u/s 304B, IPC, is not made out. It was a case of sheer suicide on the part of the lady, perhaps on account of her frustration and the act on the part of Sunita has been labelled as a case of dowry death. The learned counsel submitted that the substantive statement of Kuldip Singh made on oath in court would show that though a demand was made of Rs. 1 lac from him, it was not in connection with the demand of dowry. In support of his contention, Mr. Cheema relied upon the following of his contention, Mr. Cheema relied upon the following lines stated by Kuldip Singh in his statement :

All the family members were present in the house. Subhash Chander demanded Rs. 1 lac from me by coercion stating that his factory has suffering losses and for that he needed Rs. 1 lac.

The counsel submitted that if a relation has gone into financial losses and if he has approached to his other relations for financial help, it is not a crime u/s 304B, IPC, as the demand was not in connection with dowry.

The argument of Mr. Cheema may look attractive on the face of it but on deeper scrutiny I am of the considered opinion that the demand of Rs. 1 lac, which was allegedly conveyed to the father of the unfortunate girl was in connection with the demand of dowry. The stray line which has come in the statement of Kuldip Singh, quoted above, has to be read in conjunction with his statement, Ex. PA, and also in the light of the statements made by the other witnesses. Even in this line, the word coercion has been used. When a relation approaches to the other relations with a request for financial assistance, he does not coerce or extort money from them. The case of the prosecution in the statement, Ex. PA, of Kuldip Singh was specific that there was a threat to Sunita to compel her parents to pay Rs. 1 lac as the money was to be invested in the factory which had run into losses, otherwise Sunita will not be rehabilitated in the house of her inlaws. This demand of Rs. 1 lac will, definitely, come within the definition of dowry as understood u/ss 3 and 4 of the Dowry Prohibition Act. In these circumstances, I am inclined to repel the argument of Mr. Cheema when he made an endeavour to bring out the case of the appellants from the purview of section 304B, IPC.

The learned counsel for the appellants, then, submitted that if the evidence of the prosecution is weighed on the yardstick of broad probabilities, then this demand of Rs. 1 lac can only be attributed to Kamal Kumar, husband of the deceased, and not to Subhash Chand, Indira Devi and Gulshan Kumar, though the case set up by the prosecution and Kuldip Singh in his statement, Ex. PA, is that it was Subhash Chand, fatherinlaw of the deceased, who last time conveyed to the family of the deceased to pay Rs. 1 lac so that the amount may be invested in the factory.

On the contrary, Mr. G.S. Bhatia, learned counsel for the complainant and Mr. Vikas Cuccuria, AAG, Punjab, stated that there are specific allegations that it was the fatherinlaw who ultimately made the demand of Rs. 1 lac and tried to coerce the deceased, who was maltreated with the demand allegedly made by Subhash Chand for the benefit of everybody including Sonia, proclaimed offender. Therefore, all the appellants and Sonia are guilty of an offence u/s 304B, IPC.

I have examined this submission of Mr. Bhatia and Mr. Cuccuria, but I am of the opinion that the alleged demand of Rs. 1 lac was actually made by Kamal Kumar, husband of the deceased, but it is being translated through Subhash Chand so as to implicate as many persons of the family of the husband as possible. In such like cases, after the death of the girl, who is a unifying factor in the two families, there is no common bond. Sunita had given birth to a female child, who is presently in the custody of her maternal grand father. In these circumstances, Kuldip Singh would be the first person to ensure that all the family members of Kamal Kumar must be roped in so that the future of this family may be put into dark, but the law courts always examine the broad human probabilities. Ultimately, the case of the prosecution is that the deceased was subjected to maltreatment on account of demand of Rs. 1 lac. The evidence has come and even it is the case of the prosecution that Subhash Chand, appellant, was not allowing his son Kamal Kumar to enter into his own factory. There is no satisfactory evidence led by the prosecution that the factory of Subhash Chand was in great losses so that he wanted a financial assistance from his Sambandhi. Rather, the trend of the statement, Ex. PA, was that Kamal Kumar was in financial losses and for that reason, his father Subhash Chand was not allowing him to visit his own factory. In this regard, I would like to refer to the statement of Kuldip Singh from which it will become clear that the family of the appellants had more than one factory and one factory was exclusively being handled by Kamal Kumar. Kuldip Singh, while appearing as PW1, stated as follows :

"The accused had two factories. I do not know the names of those factories. I cannot say if the factories were under the name of Viskarma Rubber Ind. I do not know if another factory was in the name of Kamal Kumar, accused under the name and style of J.K. Rubber, Dhuri Lines, Ludhiana.

Even the statement of DW2 Tilak Raj gives strength to the above evidence when this witness deposed as follows :

Kamal Kumar runs a different factory when (than ?) that of Subhash Chander accused.

In this manner, it can be reasonably inferred that the demand of Rs. 1 lac, if any, could only have been made and was actually made by Kamal Kumar. If the money was required by the appellant Kamal Kumar for investment in his factory and that he wanted to use his wife Sunita in this regard, there was hardly any necessity on the part of Kamal Kumar to convey his demand through Subhash Chand, his father, or Indira Devi, his mother or his younger brother Gulshan Kumar. When two interpretations are possible to a particular allegation, the interpretation which is favourable to the accused has to be accepted. Kamal Kumar alone would be the beneficiary of the alleged demand of Rs. 1 lac and, therefore, I am inclined to hold that Kamal Kumar allegedly made the demand of Rs. 1 lac before his fatherinlaw and this demand was in relation to dowry. The case of Subhash Chand, his wife Indira Devi and his son Gulshan Kumar, in these circumstances, has become distinguishable. In order to attract the ingredients of section 304B, IPC, the prosecution is obliged to prove the following circumstances :

(1) That the death of the woman took place due to burns or bodily injury or otherwise than under normal circumstances;

(2) That such death had occurred within 7 years of her marriage;

(3) That the victim was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry.

It is the admitted case and this fact has not been challenged even by Mr. Cheema that the death of Sunita took place under abnormal circumstances. Sunita had sustained 100% burns. It is also the admitted case of the parties that the death of Sunita had taken place within seven years of her marriage. The marriage took place on 12.3.1993 and the occurrence took place on 13.4.1995 at about 9 a.m. in Ludhiana and when the injured was taken to the hospital, she was declared dead and the cause of death was on account of burn injuries. With regard to the third ingredient, it is the case of the prosecution and it is proved from the statement of the father of the deceased that the deceased was subjected to cruelty and she faced harassment in connection with the demand of dowry and 15 days prior to her death, there was a demand of Rs. 1 lac, which has been held to be made by the husband compelling the deceased to bring that amount for the purpose of uplifting the business of the husband. The death in this case had taken place in the house of the husband and, in these circumstances, this court can also take the assistance of section 113B of the Indian Evidence Act in which it has been laid down that 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 had 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.

In this view of the matter, by distinguishing the case of Subhash Chand, Indira Devi and Gulshan Kumar, who are extended the benefit of doubt, I maintain the conviction of Kamal Kumar u/s 304B as well as u/s 498A, IPC, by holding that he caused dowry death and also treated his wife with cruelty and caused her mental torture, etc. by making the demand of dowry. The net result is that the appeal of Subhash Chand, Indira Devi and Gulshan Kumar is hereby accepted and they are ordered to be acquitted forthwith of the charges framed against them. So far as the appeal of Kamal Kumar is concerned, the same is hereby dismiss in toto. I do not see any ground for the enhancement or the sentence nor there is any satisfactory evidence for the conversion of the offence from section 304B to 302, IPC, qua Kamal Kumar. Therefore, the revision of Kuldip Singh is also dismissed.

Let intimation about the acceptance of the appeal of Subhash Chand, Indira Devi and Gulshan Kumar be sent to the Superintendent, Central Jail, Ludhiana, so that these three persons may be set at liberty forthwith, if not wanted or convicted in any other case.