Surinder Kumar and Another vs State of Haryana

V.S. Aggarwal, J.—From ''Sati Pratha'' to bride burning the Indian society has witnessed a drastic and dynamic cultural changes in family relations. During these long years to modern civilization, the human generations have travelled from inequality, oppression to equality and emancipation of women, Alas in this long period of development none has been able to control the bargain of dowry menace and the brides are facing the turmoil and ordeal in their matrimonial homes where they are compelled to perform sex doing cocktail. The importance of law and legal system in shaping the status of woman is increasingly evident in societies governed by written Constitution and rule of law. Here is statement of Pandit Jawahar Lal Nehru (on Dowry Prohibition Bill, 1961, on 6th of May, 1961) deserves a place;

"Legislation can''t by itself solve deep rooted social problem, One has to approach them in another way too, but legislation is necessary and essential...."

As the ''bride'' the queen of house hold, the ARTHANGINI, the SAHDARMINI, the BHARYA and the equal partner with her husband has become worst target of social and economic exploitation in demands of dowry. Mahatma Gandhi once said :

"There is no doubt that custom is heartless. The dowry system must go. Marriage must cease to be a matter of arrangement by parents for money".

(Young India June 2, 1928)

Legislation took stock of the situation. To circumvent the said evil, amendments in the Indian Evidence Act and the Penal Code were effected. Besides raising a legal presumption in favour of the ''dowry death'' new offences in the form of Sections 498-A and 304-B were added. Relevant provisions of the Indian Evidence Act (Section 113-B of the said Act) and Section 498-A besides 304-B of the Indian Penal Code read and are being reproduced below for the sake of facility :_

"113-B. Presumption as to dowry death :- When the question is whether a person has committed the dowry death of a woman and it i s 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."

498-A. Husband or relative of husband of a woman subjecting her to cruelty :- 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 purposes 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.

304-B : Dowry death :-- (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 have caused her death,

Explanation : For the purposes of this subsection "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 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."

Some of the admitted facts which are not subject matter of controversy between the parties can well be relisted. The deceased Suman was married to the appellant Surinder Kumar on 13-10-1991. She lived in her matrimonial house till 30-10-1991 or 1 -11 -1991. There is no controversy that she had poured Kerosene on herself and set herself ablaze while she was living with her parents/Fatehabad. This occurred on 13-3-1992. She died an unnatural death on 18-3-1992. It was not subject matter of controversy that there had been attempts made to pursuade the appellants to take back Suman but it did not succeed.

The controversy rests if it was a dowry death resulting out of the persistent demands of dowry by the appellants or not. The prosecution case set up is that on the third day of the marriage, Suman came to visit her parents and brothers. She informed them that her in-laws were un-happy with the dowry and that they were harassing her for bringing more dowry. At that time, she was accompanied by her husband and mother-in-law. After about 15-16 days of the marriage Mohinder Pal, brother of decease Suman visited her on the occasion of Diwali festival. The deceased told her brother that she was being harassed for bringing more dowry i.e. a Coloured Television and a Scooter. The brother of the deceased was humiliated. The gifts were returned. Suman came back to her parents house. Number of times efforts were made to rehabilitate Suman. The prosecution case is that the appellants insisted for more dowry to be given before they could take back Suman.

When the deceased Suman set herself on fire, it set the law into motion. On receipt of ruqa, ASI Attar Singh took up the investigation on 14-3-1992 and visited Civil Hospital, Fatehabad. On that day, she was not declared fit to make the statement. He went and visited the place of incident and took into possession a bucket, a jug, two towels, pair of rubber chappals which had been partly burnt. A letter purported to have been written by Suman was handed-over to him. The services of a Judicial Magistrate were obtained and statement of Suman was recorded. She breathed her last on 18-3-1992. Dr. R. K. Aggarwal conducted post mortem on the mortal remains of deceased Suman. In his opinion, the cause of death was due to shock as a result of extensive burns and it was anti-mortem.

The defence of the appellants was of denial pertaining to demand of dowry. Appellant Surinder Kumar altogether denied his involvement in any such demand and on the contrary put up the defence that Suman was suffering from epilepsy. Even he had got her treated in this regard. He did not keep her because she was not in a fit mental condition. His precise defence was forthcoming in answer to question No. 25 in his statement recorded u/s 313 of the Code of Criminal Procedure in which he stated :-

"It is a false case. Suman had suffered a fit of epilepsy on 26-10-1991. We secured her treatment from Dr. Jhamb who opined that it was an old case of epilepsy. We thereupon approached the parents of Suman on 27-10-91 to provide old prescriptions of her treatment. They admitted that Suman had been suffering from epilepsy attack before lier marriage and handed over the prescriptions, DX and D Y to us and we "secured treatment from Dr. Munjal on 28-10-91. On 29-10-91 Suman''s mother came to see her and took her away with her on 30-10-1991. The parents of the girl tried to pressurise me to bring back Suman, but I refused to do so because she was not in a fit mental state. Shri O. P. Mahajan had taken Suman to Medical College Rohtak for their opinion. The cat-scan was also got done from Delhi. Doctor at the Medical College, Hospital, Rohtak, gave her treatment but I was not satisfied about her fitness and, therefore, I did not bring Suman from her parental home. Suman remained unhappy because her sisters-in-law had been taunting her and on that account she committed suicide. Myself, my brothers are all separate. My sister Krishna and her husband never came to our house after my marriage."

Ram Bai mother of the accused Surinder, in a like manner denied demanding dowry from the deceased on any occasion. She stated that she has been falsely implicated because she is mother of husband of deceased, Surinder.

At this stage, it would be appropriate to take note of the defence evidence produced by the appellants. Om Parkash Mahajan was examined as DW1. He is a resident of Hisar. As per this witness, the father and brother of the deceased had come to him in December, 1991 and told him that the accused were not keeping Suman with them. He informed them that he would call the accused persons. Accordingly, they were called and were informed that Suman had fit of epilepsy and, therefore, they were not willing to keep her. After about 22 days of that, brother of the deceased had come and they had all gone to Lila Krishan at Fatehabad for settlement of the matter. The father of the deceased admitted that Suman was suffering from epilepsy and that this ailment could vanish after marriage. They had even gone to Rohtak Medical College. The doctor there could not give a definite opinion without cat-scan. As per this witness, the father and brother of the deceased never complained to him about any alleged demand of dowry by the accused persons. The witness admitted that throughout their journey, Suman was a normal lady.

In addition to that, the appellants had examined three doctors, namely, Dr. H. C. Dahiya, DW2, who is a medical Officer is General Hospital, Fatehabad. From the OPD register he had stated that he had examined Suman deceased and it was found that she was suffering from epilepsy. He had given the treatment on clinical examination. Dr. Prem Munjal, Consultant Psychiatrist, Hisar, appeared as DW3. He too stated that he had examined Suman on 28-10-1991 and found that clinically it was a case of epilepsy. The history was given by the patient herself and her attendant. The witness stated that he did not record the age of the husband and that the patient was not known to him personally. Dr. Rakesh Jhamb DW4 is a Medical Practitioner at Hisar. In a simiiar fashion, he too stated that on 26-10-1991 he had examined Smt. Suman and found her in a state of fit. He referred her to an expert.

The Ld. trial Court, on appraisal of evidence, held that the oral testimonies of the brothers and father of the deceased were not too reliable but acting on the dying declaration of Suman and suicide note coupled with the oral evidence, appellants Surinder Kumar and Ram Bai were held guilty of the offences punishable under Sections 304-B and 498-A of the Indian Penal Code. They were sentenced to undergo rigorous imprisonment for seven years for the offence punishable u/s 304-B of the Penal Code. With respect to the offence punishable u/s 498-A, they were each sentenced to undergo two years'' rigorous imprisonment and a fine of Rs. 1000/-. In default of payment of fine, they were to undergo further rigorous imprisonment for six months. The substantive sentences were to run concurrently. The other accused persons were acquitted as against those acquitted accused there was no controversy raised in this Court.

Aggrieved by the said judgment and order of sentence, both the appellants have preferred the appeal, while the complainant seeks enhancement of sentence.

The evidence of the appellants pertaining to Suman deceased suffering from epilepsy can hardly be questioned. It is clear from the nature of evidence produced that Smt. Suman was suffering from epilepsy even before her marriage. She had been examined by Dr. Dahiya on 11 -4-1991. She even suffered epileptic shock in October, 1991, as has been noticed by Dr. Rakesh Jhamb of Hisar and thereafter examined by Dr. Prem Munjal.

Epilepsy, as well known, is a chronic functional disease of the nervous system manifested by recurring attacks of sudden unconsciousness or impairment of consciousness. It is temporary and lasts for sometime. Taking advantage of the same, the appellants'' learned counsel urged that since she was suffering from epilepsy, this was the reason that the appellants were not in a position to rehabilitate Suman, rather than demand of dowry. In his opinion, it was a deliberate attempt by the prosecution to suppress that Suman was suffering from epilepsy. At the out set, the plea so raised that the marriage could be taken to become void cannot be accepted. None of the said ingredients when a marriage can be held or taken to be void would be present if a person suffers from epileptic attacks. This question otherwise is not relevant but basically one has to see if the appellants were persistently harassing Suman for bringing more dowry or there was any grain of truth in the appellants that they were not rehabilitating Suman, who was suffering from epilepsy. While viewing the same, the scales have to be kept even.

Mohinder Pal, PW9, brother of the deceased in an emphatic manner stated that Suman told him when she visited after three days of her marriage that her in-laws were unhappy with the dowry and she was being harassed. Even when he visited Suman in the house of the appellants, the said fact was repeated and when he talked this matter to the appellants, he was humiliated. The appellants were insisting that their demands must be met. The witness had been cross-examined and confronted with his earlier recorded statement (Ex. DA) by the police. The fact that after three days of the marriage Suman told him of appellants harassing her for bringing insufficient dowry had not been stated by the witness in his earlier statement made to the police. Even it had not been recorded that this witness was humiliated by the appellants or that he had asked the appellants not to make the demands and harass Suman. The witness had gone on to state that Shri O. P. Mahajan had intervened. He had taken Suman for a medical check up and it was found that she was absolutely normal in health. This testimony of the witness was subject matter of criticism on the ground that he had made positive improvements in his testimony and, therefore, is not a reliable witness. There is no controversy with the said proposition that if a witness makes a controvery statement and material improvements, his version can well be rejected to be an unreliable witness. But every cosmetic treatment or improvement in this regard will not be a ground to conclude that the statement of witness has to be rejected out-right. A rule of caution will come into play. The evidence will have to be scrutinised more carefully. In the present case, undoubtedly, he does improve upon his earlier version but substratum of the evidence is the same that there had been demand of dowry. In these circumstances, it would not be fair to reject the testimony of the witness on the said short ground. Sunil Kumar, PW 10 is the other brother of deceased. He simply made a factual statement that the appellants used to harass his sister for bringing more dowry and used to taunt her. He admitted candidly that he had not told the police in his statement that the appellants used to harass the deceased for inadequacy of dowry. Ram Chander father of the deceased, in a like manner, was confronted with his earlier recorded statement so as to urge that there was no mention that three days after the marriage, Suman had come and complained about her being harassed for bringing insufficient dowry.

It is well known that the witness can be categorised as (a) a wholly reliable; (b) partly reliable and (c) wholly unreliable. In case of witnesses of category (a) and (c), there is little problem in accepting and rejecting their testimonies. The testimony of one single wholly reliable witness would be sufficient to act and convict an accused. On the contrary in case of a wholly unreliable witness, the number becomes immaterial because their testimonies are not to be acted upon. The difficulty arises in case of witnesses who are partly reliable. As noticed above, relatives, namely father and brothers of the deceased cannot be described as wholly reliable. They are only partly reliable witnesses. At the risk of repetition, it may be mentioned that the substratum of their evidence was the same. Necessary, one would look for corroboration to what those witnesses stated in the Court pertaining to the demand of dowry.

Ex. PA is the dying declaration made by Suman before Shri S. C. Goyal, Sub Divisional Judicial Magistrate, Fatehabad. The witness appeared in the Court and proved the said statement recorded by him. It reads:-

"I was married to Surinder Kumar son of Ram Dhan in October, 1991. Surinder used to run a shop of medicines at Hisar. I have been living at my parental house at Fatehabad since Diwali. My husband does not take me back with him because he demanded in dowry a scooter, a colour TV and several other things. 1 was time and again abused and harassed for not bringing dowry. I had been fed up with my life and, therefore, I set myself ablaze. My husband, my mother-in-law had been making a demand for a scooter and a TV. from me and had been causing harassment. For this reason, they had ruined my life. My husband''s elder brothers Sat Pal and Rajinder also used to harass me for bringing dowry. My in-laws have one house although they reside separately. My husband''s elder brothers had been coming to me every day to make a demand for dowry goods. I had narrated the incident regarding the demand for dowry to my father. I do not know whether he had gone to Hisar or not. I am B. A. B.Ed. I passed out B. Ed. last year from Rohtak."

Further corroboration is provided by the suicide note of the deceased. It is purported to have been written by the deceased. The translation of the same is to the following effect:-

"Respected Papaji, I know that whatever I am doing is not correct but still you will excuse me but you should not excuse those Rakshasas who are responsible for my ruination. Those wolves, hungry for dowry, namely, Parkash, Sat Pal, Rajinder, Krishan and old "Dayan" have not to be excused at all. Who-so-ever from our side had gortfc to them and had come humiliated, I beg their pardon because I was responsible for the same; for my sake they had to suffer humiliation, that old lady is not a lady but a ''Dayan'', a ''Dayan''. Tell that tailor Rajinder that he has a daughter and when he will go for the settlement of her marriage, he should tell the boy''s side that his daughter would do their domestic work and would have two meals. The boy''s side would at once accept the relationship. He should also tell the same thing to his sister''s husband and brother Sat Pal. What does he think of himself, am I their domestic servant so that I should work and take meals.. You have given me every thing, yet their stomach has not been filled and they wanted a Colour TV, a scooter. Now they will get everything. Papa Ji, I have troubled you a lot. You have suffered considerable hardships on account of me. I cannot suffer any longer. I do not have any more tolerance, you may please reconcile yourself that you had only two daughters and forget that you had a third ill-fated daughter. The persons who have ruined my life, will never be forgiven by God. So long as they are not ruined, 1 will not get peace. I will ruin them. I seek forgiveness from my brother''s wife. I have bothered her considerably. O. K. if possible, please excuse me. Yours unfortunate daughter Suman."

A feeble attempt was made to urge that the suicide note was not in the hand of the deceased but it is not established that it is not in the hand of the deceased or it could be described as a forged document. It is in evidence that the said suicide note was found under the pillow and, therefore, could be produced before the police on the following day of the incident. There is seemingly no reason not to act upon the said suicide note. Reading of the statement made by deceased which is her dying declaration it is clear that she specifically names both the appellants for making demand of scooter and a Television and for harassing her. She recites that she was being abused and harassed for bringing insufficient dowry and as a result of which she was fed up with her life. The suicide note is addressed to her father. It certainly shows that the said suicide note has been written with the sense of frustration, desperation and also revenge but it contains the statements of facts. Reading of the same shows the agony that Smt. Suman was suffering before she had put to an end her life. She does recite that she was made to do household work but it is not the cause of her frustration. She specifically used the expression "those wolves, hungry of dowry" and while apprising her father states "you have given me everything, yet their stomach has not been filled and they wanted a Coloure TV and a scooter". This is expressive of the demands that were being made. Even if it could be said that she was oversensitive, still one would not put end to his life unless the harassment is of such a nature that it cannot be tolerated. The dying declaration and suicide note coupled with testimony of oral witnesses duly manifest that Suman was being harassed for bringing insufficient dowry.

It has further been urged that to attract the rigors of Section 304-B of the Indian Penal Code, it must be shown that "soon before her death she was subjected to cruelty or harassment" in connection with any demand of dowry. Resting on the said expression, it was argued that Suman was living with her parents for a period of about four months before she put an end to her life and soon before her death, she could not be subjected to any such cruelty or harassment contemplated. But it must be remembered that such harassment is continuous factor. There has been parleys for rehabilitating Suman. Certain meetings were held. This was sufficient incitement and harassment when she was not being accepted by the appellants unless the demand for dowry is met. Keeping in view the aforesaid fact, the thrust and force of argument loses its significance.

It is true that Shri O.P. Mahajan states that before him there was no complaint made that there had been demand of dowry by the appellants. The statement of the witness in this regard does not appear to be convincing. He was a person who had offered his good offices to get the matter settled. He had taken Suman to Rohtak Medical College. The statement of this witness coming towards the fag end of the trial when he appeared for the appellants appears to be suspicious. There is nothing to indicate that on any earlier occasion, he had come forward to state that there was no talk about demand of dowry and consequently in these circumstances his testimony in this regard necessarily must be rejected.

Another limb of argument raised by the appellants'' learned counsel was that in the suicide note, Ex. PC, Smt. Suman has not named her husband (Appellant No. I). It has already been noticed above that it is a suicide not written with frustration stating the facts. If the name of appellant No. 1 had in advertantly been omitted, it will not exonerate him. In the dying declaration, he is specifically named. There was no reason for Suman to implicate him falsely. The dying declaration had been recorded while she was conscious with due care and caution. It cannot be ignored or brushed aside. In these circumstances, the trial Court rightly held the appellants guilty of the offences punishable under Sections 304-B and 498-A of the Indian Penal Code.

On behalf of the complainant, in their revision they urged that the sentence awarded is inadequate and should be enhanced. One need not ponder further because we know from the decision of the Supreme Court in the case of Bed Raj Vs. The State of Uttar Pradesh, that in the matter of enhancement, there should not be interference when sentence passed imposes substantial punishment. It would only be interfered with when it is manifestly inadequate. In the present case it is not so. Adequate punishment has been awarded. Trial Court''s discretion does not require any interference, Revision petition consequently also is without merit.

For these reasons, appeal and the revision fail and are dismissed.