Vijay Kumar and others vs State of Punjab

T.H.B. Chalapathi, J.

The appellants are convicted under Section 304B of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 7,000/ each, by the learned Addl. Sessions Judge, Jalandhar in Sessions Case No. 57/1991, dated August 14, 1993.

According to the case of the prosecution, Accused 1 was married to Parveen Kumari alias Veena on October 10, 1986. Accused 2 is the brother of accused 1. Accused 3 is the mother and accused 4 is the father of accused 1. The accused used to harass Parveen Kumari and demanded dowry from her parents. She was also beaten by the accused. On April 23, 1990, Parveen Kumari was found dead. The maternal uncle of the deceased Roshan Lal on coming to know about the death of Parveen Kumari, informed the parents of the deceased and he came back to the village and went to the house of the accused and found the dead body of Parveen Kumari in the courtyard with deep injuries on her person. Thereafter, he gave a report to the police on the basis of which the police registered a case in F.I.R. No. 59 dated April 23, 1990 at Police Station Sadar, Jalandhar under Section 302 read with Section 34 IPC and Section 304B IPC. During the course of investigation, the police sent the dead body of Parveen Kumari to the hospital for postmortem and recorded the statements of the witnesses and after necessary investigation, filed a charge sheet in Court against all the accused. Thereafter, the case was committed to Sessions Judge, Jalandhar. The learned Addl. Sessions Judge, Jalandhar framed charge under Sections 302/34 and also under Section 304B, IPC to which the accused pleaded not guilty. In order to prove the guilt of the accused, the prosecution examined seven witnesses and marked documents. After closure of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C. In defence, the accused examined five witnesses. On a consideration of the evidence on record, the learned Addl. Sessions Judge, Jalandhar held that Parveen Kumari was killed in the house of the accused but since there is no evidence directly to show as to which one of the accused took which active part in causing her death, it cannot be said that case under section 302 is made out and therefore, the learned Addl. Sessions Judge acquitted the accused of that charge. But the learned Addl. Sessions Judge convicted the accused for the offence under Section 304B, IPC as the death of the deceased Parveen Kumari took place within seven years of marriage and otherwise in normal circumstances and sentenced the accused as stated above.

Aggrieved by the said conviction imposed by the learned Addl. Sessions Judge, Jalandhar the appellants preferred the above appeal.

Before dealing with the appeal, I would like to point out that the approach of the learned Addl. Sessions Judge, Jalandhar is not correct. If he was of the opinion that Parveen Kumari was killed by the accused, he should have convicted all the accused for the offence under Section 302 read with Section 34 IPC even though there is no evidence to show that as to also one of the accused took which part in causing her death. For convicting the accused under Section 302 read with 34 IPC it is not necessary to prove that which of the accused took which part in causing her death but the learned Addl. Sessions Judge acquitted the accused of the charge under sections 302/34 IPC. This is contrary to his own findings.

In this appeal the first question to be decided is whether Parveen Kumari died of homicide. PW.6 is the Dr. Ashok Nanda who conducted postmortem on the dead body of Parveen Kumari on April 24, 1990. He found a ligature mark 2.5 cms in breadth around the neck placed obliquely and in the upper part just below the chin and the ligature was absent in the area of 9 cms on left lateral side of neck (noncontinuous). He also found the muscles ruptured, carotid arteries lacerated and fracture of second and third cervical, vertebra with compression of spinal chord. According to him, the injury was ante mortem in nature and caused by hanging. According to PW.6, the death was due to asphyxia which were as a result of obstruction of air ways associated with fracture. Ext. PC is the carbon copy of the post mortem report. In the cross examination, PW.6 deposed that except the ligature mark on the neck, there was no mark of injury on the person of the deceased. He further stated that it was not a case of throttling. He further stated that the injury was by hanging. Thus, the evidence shows that the death was due to hanging. There is no direct evidence to show that the accused killed the deceased. When the doctor clearly found that there was no injury on the body of the deceased except the ligature mark, the statement of Roshan Lal Ext.PA, cannot be given any weight. On the basis of the medical evidence and also on the basis of evidence of Harbhajan Kaur who has been examined as DW.1 who deposed that at about 7 a.m. when she was busy in domestic chores, they heard the shriek of Vijay Kumar and when they reached the house, she saw accused No.1 pushing the door and they went inside, they saw Parveen Kumari managing with the fan. I do not see any reason to disbelieve the evidence of DW.1. I am, therefore, of the opinion that deceased Parveen Kumari died by committing suicide and it was not a case of homicide. I am unable to agree with the reasoning given by the Addl. Sessions Judge that Parveen Kumari was killed but I need not dwell on this aspect any further because the Additional Sessions Judge himself acquitted the accused for the offence under Section 302, IPC.

It is next to be seen whether the accused are guilty of the offence under Section 304B, IPC. To attract Section 304B the ingredients are (i) the death of the woman must have been caused otherwise than in normal circumstances; (ii) the death must have been caused within seven years of her marriage; and (iii) it must be shown that soon before her death, the deceased was subjected to cruelty and harassment for or in connection with the demand of dowry.

In this case, there cannot be dispute that the death occurred otherwise than in normal circumstances, because according to the doctor who conducted the postmortem, Parveen Kumari died due to hanging and there is no dispute that the marriage took place on October 10, 1986 and the death occurred on April 23, 1990 i.e. within seven years from the date of her marriage. Therefore, the first two ingredients are satisfied. The most important ingredient is that soon before her death, the deceased must have been subjected to cruelty and harassment for or in connection with the demand of dowry. Therefore, it is to be seen whether the deceased was subjected to cruelty and harassment in connection with demand of dowry. The persecution has relied upon the evidence of PW.4, the maternal uncle of the deceased. He deposed that deceased Parveen Kumari is the daughter of his mother''s sister and that her marriage with accused No.1 Vijay Kumar took place on October 10, 1986. According to him, in his presence the accused took Rs. 5,000/ on two occasions for setting up a grocery shop. About 20 days before her death the deceased was given beatings and sent to her parents home to bring Rs. 20,000/ and he intervened and took her to the house of the accused telling them that the matter of giving money would be taken up later on. He further deposed that on 16.4.1990, he came to the house of the accused and that Parveen Kumari called him and told him that the accused were beating her to bring money. Then he told her (the deceased) that he would discuss the matter with her father. On 23.4.1990, he received a message that Parveen Kumari was killed. In the crossexamination, he deposed that he had stated before the police that he took Parveen Kumari deceased to the house of the accused on 16.4.1990. He also deposed that he told the police that Parveen Kumari told him that she was being troubled but the statement recorded Ex.PA by the police does not show that he told the police that he went to the house of the accused on 16.4.1990 and that the deceased told him that she was being troubled. He further stated that he did not know about the date of marriage of the brother''s son of Mangat Ram, the father of the deceased and does not know that the grocery shop was opened by the accused even before the alleged demand of Rs. 5,000/. PW.5 is the father of the deceased. According to him, 5/6 months after the marriage, there was maltreatment with Parveen Kumari in the house of her inlaws. He further submitted that he gave twice Rs. 5,000/ somewhere in the year 1988. He further deposed that the accused demanded Rs. 20,000/ which they required for getting his son enrolled in service but he could not pay the money to his daughter. He further deposed that Roshan Lal used to go to the house of the accused for reconciliation for the last time on 16.4.1990. He further deposed that the marriage of Parveen Kumari took place on 10.10.1986. In the crossexamination, he stated that accused Vijay Kumar set up a shop of grocery even before his marriage with Parveen Kumari. Though he asserted that he told the Police that he paid Rs. 5,000/ on two occasions to accused Vijay Kumari in the year 1988 but it was not so stated in his statement Ext. D.A. He further stated that he celebrated the marriage of the son of his deceased brother and that the accused were also invited to the marriage and Parveen Kumari and Vijay Kumar attended the marriage and participated in all the functions. He also stated that they celebrated the first entry in the newly build house, Parveen Kumari and Vijay Kumar also attended the said function. But he stated that he does not remember the dates of above wedding and the first entry in the newly build house. He stated that he cannot accept or deny the suggestion that the entry in house was celebrated on 8.4.1990 and the marriage on 16.4.1990. According to PW.4, about 20 days before the death of Parveen Kumari, she was beaten and sent to the house of her parents asking for Rs. 20,000/. Then he intervened and took her to the house of the accused telling that the matter regarding money would be taken up later on. He further stated that on 16.4.1990, he went to the house of the accused when Parveen Kumari told him that the accused were beating and troubling her. According to PW.4 he took Parveen Kumari to the house of the accused even before 16.4.1990. But according to PW.5, PW.4 took his daughter from his house to the house of the accused on 16.4.1990. But according to the accused, on 16.4.1990, PW.5 celebrated the marriage of his nephew i.e. his brother''s son and that deceased Parveen Kumari attended the marriage on 16.4.1990 along with accused No.1. It is his case that PW.5 celebrated the first entry in the new house on 8.4.1990 and both Parveen Kumari and accused No.1 attended the same. PW.4 denied any knowledge about date of marriage though he admitted that PW.5 celebrated the marriage of his nephew and the first entry in the new build house ceremony. PW.5 admitted that his daughter and soninlaw attended both the functions at his house though he does not remember the dates on which these ceremonies were performed.

On a careful and close reading of the evidence of PWs. 4 and 5, I am not able to place any reliance on their evidence to show that there was any demand for dowry soon before the death of the deceased, and that was the cause for Parveen Kumari to commit suicide.

It is in evidence that Parveen Kumari had no child and she was taking treatment and was, therefore, frustrated and that might be the possible cause for Parveen Kumari to commit suicide. It is in the testimony of PW.4 and PW.5 that the deceased and her husband attended the first entry in the newly built house and the marriage of the brother''s son of PW.5. It clearly shows that the relations of wife and husband were cordial. Except saying that Rs. 5,000/ were given on two occasions, there is no other acceptable evidence to show that any demand for dowry was made and that the amount in fact was paid. Even assuming for the sake of argument that payment was said to have been made, the said payment was made in 1988 according to PW.5. To attract section 304B it must be shown that soon before the death of the deceased she was subjected to cruelty and harassment in connection with the demand of dowry. Therefore, the demand, if any, and the payment if any, made in 1988, cannot be taken as the cause for the death of Parveen Kumari in 1990. Though the prosecution sought to make out a case that there was a demand for Rs. 20,000/ before the death of the deceased, there is no acceptable evidence to prove this fact. According to PW.4, the demand was made for the purpose of setting up a grocery shop but according to PW.5, the demand was made for securing a job for the son of accused No.4. A reading of the evidence of PWs. 4 and 5 does not inspire any confidence. I am, therefore, unable to place any reliance on their evidence. I am, therefore, of the opinion that the prosecution has failed to prove that the accused are guilty of the offence under section 304B IPC. The accused are, therefore, entitled to be acquitted of the charge under Section 304B, IPC. The conviction and sentence are liable to be set aside.

The appeal is accordingly allowed and the conviction and sentence imposed by the learned Addl. Sessions Judge are hereby set aside. The amount of fine, if paid, is directed to be refunded to the appellants.