Surinder Kumar vs State of Punjab

Sat Pal, J.

This appeal is directed against the judgment dated 12th July, 1994 passed by the learned Additional District Judge, Bhathinda, whereby the learned Additional Sessions Judge convicted both the appellants, namely Surinder Kumar and Kanta Devi under Sections 304B and 498A, Indian Penal Code and sentenced both of them to undergo imprisonment for 7 years, under section 304B IPC. The learned Additional Sessions Judge further held that no separate sentence under Section 498A IPC was required to be passed in view of the substantive sentence being awarded for the major offence under Section 304B IPC.

Briefly stated, the facts of the case are that deceased Raksha Rani alias Sunita Rani was married to appellant Surinder Kumar about 11/2 years prior to the date of incident i.e. 29th July, 1993. They were blessed with a son who was aged 11/2 years at the time of the death of the deceased Raksha Rani.

As per the case of the prosecution, Surinder Kumar and the deceased used to quarrel with each other and the cause of the quarrel was insufficient dowry. It is further alleged that one week prior to 29th July, 1993 two brothers of the deceased, namely, Sat Pal and Dharam Pal visited the deceased who told them that her motherinlaw Kanta Devi was raising a demand of more money and her husband Surinder Kumar also raised a demand for money. It is further alleged that the brothers of the deceased on return informed the father of the deceased (hereinafter referred to as the complainant) that the accused had told them that in case Rs. 10,000/ was not given, then Raksha Rani (deceased) would be deserted. It is then alleged that on 29th July, 1993 the complainant Lal Chand along with his son Diwan Chand visited the house of accused Surinder Kumar, at about 9.10 A.M. and found that 10/12 ladies were sitting on the ground in front of the house of the deceased and both the accused were not present at that time. After going into the house they came to know that Raksha Rani had succumbed to her burn injuries in the bathroom. The complainant made his statement before the Police which is Exhibit PD. On the basis of this statement, FIR under Sections 304B/34 IPC was registered against the accused on 29th July, 1993. They also found one container near the dead body and halfburnt match box.

Charge was framed against the appellants under Section 498A and 304B IPC, on 18th January, 1994. The prosecution, besides the I.O. Kirpal Singh, examined Lal Chand (PW 2), the father of the deceased, Sat Pal, PW 3, Dharam Pal (PW 5), brothers of the deceased and Dr. Ram Niwas Maharishi (PW 1) who along with another doctor conducted the post mortem examination. The statements of the accused under Section 313 Cr.P.C. were recorded on 7th July, 1994. No defence witness was examined on behalf of the accused.

As per the evidence of Dr. Maharishi (PW 1) the cause of death of the deceased was due to shock resulting from 95% burns. The said witness also stated that all the burns were ante mortem in nature and were sufficient to cause the death in the ordinary course of nature and the probable time that elapsed between injuries and death was within a few hours and between death and postmortem examination was within 36 hours.

Relying on the evidence of the prosecution witnesses, the learned Additional Sessions Judge held that the death of the deceased Raksha Rani alias Sunita Rani occurred otherwise than in normal circumstances within seven years of the marriage and soon before her death she was subjected to harassment by her husband Surinder Kumar and motherinlaw Kanta Devi in connection with demand for dowry. Accordingly he convicted both the accused under Sections 304B and Section 498A IPC and sentenced both of them to undergo imprisonment for 7 years. Aggrieved by the aforesaid judgment, the present appeal has been filed by the appellants.

Mr. Gupta, learned counsel appearing on behalf of the accused could not point out any material on the record which could prove that the conviction of the appellant Surinder Kumar and sentence awarded to him was not sustainable. Regarding conviction of the appellant Kanta Devi and the sentence awarded to her, the learned counsel submitted that the conviction of the said appellant was not sustainable as there was no legal evidence on record in support of her conviction. He submitted that the allegations regarding demand of dowry by the said appellant were totally vague and none of the prosecution witnesses in their respective statements has given the time and date on which the demand was made by this appellant nor any material particulars of the demand of dowry alleged to have been made by this appellant, have been given by any prosecution witness. He submitted that the father of the deceased (PW 2) in his statement had clearly stated that motive of the death of the deceased was demand of dowry by accused Surinder Kumar. He further submitted that PW 2, in his statement, had admitted that no demand of dowry was made by the appellants at the time of the marriage. He also submitted that one of the sons of the complainant committed suicide and this fact also indicated that there was suicidal tendency among the children of complainant Lal Chand. He also drew my attention to the statement of PW 4 and submitted that this witness had clearly stated that the complainant had told him initially that the deceased committed suicide. He also submitted that the appellant Kanta Devi who was a widow was employed as Anganbari worker and was posted at a place which was 10 kms. away from their residence and during the course of the day, the said appellant used to be away from the house and as such there was no possibility of any cruelty having been committed by the said appellant on the deceased. Lastly he submitted that deceased had left a child who was 11/2 years old at the time of the death of the deceased and as admitted by the complainant in his statement, the said child was not taken by them, at the time when the appellants were taken into custody. He, therefore, contended that it would be in the interest of justice if the appellant Kanta Devi was acquitted so that she could bring up the child who at present was being brought up by some neighbour. In support of his submissions, the learned counsel placed reliance on two judgments of this court in Kuldip Singh and others v. State of Punjab, 1992(1) RCR 675 and Joginder Singh v. State of Punjab, 1980 Chandigarh Law Reports 196.

Mr. Parminder Singh, learned AAG appearing on behalf of the State, submitted that it was an admitted fact that the deceased died within a period of less than 7 years from the date of marriage and her death was in unnatural manner. He further submitted that though the dead body found in the bathroom of neighbour Dev Raj but as per site plan Exhibit PG there was no wall between the house of the accused and the house of Dev Raj. He referred to the statement of complainant Lal Chand (PW 2) and submitted that as per his statement, a week prior to the date of incident, both the accused Kanta Devi and Surinder Kumar had made a demand for dowry when two brothers of the deceased, namely Sat Pal and Dharam Pal had visited their house. He submitted that the aforesaid facts had been corroborated by both the brothers of the deceased who appeared as PW 3 and PW 5. He, therefore, contended that there was no merit in the contentions raised by the learned counsel for the appellants and as such, the appeal was liable to be dismissed. Dealing with the case of Kuldip Singh (supra) he submitted that the decision in that case was not applicable to the facts of the present case as in this case there were specific allegations against Kanta Devi also.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. Before dealing with the rival contentions advanced by the learned counsel for the parties, it will be relevant to refer to Section 304B IPC and Section 113B of the Indian Evidence Act which read as under:

"304B. 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."

"Section 113B, Indian Evidence Act, 1872.

113B. Presumption as to dowry death. 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.

Explanation. For the purpose of this section, "dowry death" shall have the same meaning as in Section 304B of Indian Penal Code (45 1860)."

From a reading of Section 304B IPC and Section 113B of the Evidence Act, it is evident that in order to ascertain whether a person has committed the offence of dowry death of a woman, it should be shown that soon before her unnatural death, which took place within seven years of the marriage, the deceased had been subjected, by such person to cruelty or harassment for or in connection with demand of dowry. Thus, irrespective of the fact whether the accused has any direct connection with the death or not, he shall be presumed to have committed the dowry death provided the other requirements mentioned hereinabove are satisfied.

In the present case, it has been proved by the prosecution that the deceased Raksha Rani alias Sunita Rani died an unnatural death, namely, due to burning. It is also proved on record that the death took place within seven years of the marriage of the deceased with the accused Surinder Kumar. The father of the deceased who appeared as PW 2, in his statement, clearly stated that accused Surinder Kumar used to quarrel with his deceased daughter on account of insufficient dowry. He also stated that one week prior to the death of his daughter, his two sons, Sat Pal and Dharam Pal had visited her and she told them that her motherinlaw Kanta Devi and her husband Surinder Kumar had raised demand of more money and on return his sons told him that both the said accused had raised a demand of Rs. 10,000/ from them and told them that in case Rs, 10,000/ was not given, Raksha Rani would be deserted. He also stated that prior to the visit of his sons, he had paid twice Rs. 10,000/ each to accused Surinder Kumar. PW 3 Sat Pal and P.W. 5 Dharam Pal have fully corroborated the statement of their father. In their respective statements, both stated that one week prior to the death of their sister, they had visited her and both the accused Kanta Devi and Surinder Kumar had asked them to give a sum of Rs. 10,000/ more and in case this amount was not paid, Raksha Rani would be deserted. They stated that after coming back, they had narrated these facts to their father, PW 2. Sat Pal has also stated that after marriage both accused Surinder Kumar and Kanta Devi used to quarrel with his sister and they also used to raise a demand from them through his sister.

From the statements of PW 2, PW 3 and PW 5, it is clearly proved that the deceased Raksha Rani had been subjected to cruelty in connection with demand for dowry by both accused Surinder Kumar and Kanta Devi.

Keeping in view the material on record discussed above, I see no reason to interfere with the findings recorded by the learned Additional Sessions Judge. In my opinion, the appellants have been rightly convicted under Section 498A IPC and Section 304B IPC. The view I have taken finds full support from a judgment for the Supreme Court in Hem Chand v. State of Haryana, AIR 1995 S.C. 120.

As regards the contention of the learned counsel of the appellants that in the interest of justice, appellant Kanta Devi should be acquitted so that she may bring up the child left by the deceased, I find no merit in this contention. The aforesaid ground for setting aside the conviction is not sustainable in law. It will, however, be open to the said appellant to approach the authority concerned for grant of parole on this ground if permissible under the law.

For the reasons recorded hereinabove, the appeal of both the appellants is dismissed and the impugned order of conviction and sentence recorded by the learned Additional Sessions Judge, Bhathinda, is upheld.