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PETITIONER: PREM SINGH, SMT. SHANTI

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       06/08/1998

BENCH: G.T. NANAVATI, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                             WITH               CRIMINAL APPEAL NO 1077 OF 1997                       J U D G M E N T S.P. KURDUKAR, J.      These two  criminal appeals are filed by the appellants accused challenging  the legality  and  correctness  of  the judgment and  order dated  1st September, 1997 passed by the High Court  of Punjab  & Haryana  at Chandigarh whereby both the appellants  were convicted  under Section  304-B of  the Indian Penal  Code and  were sentenced  to suffer  RI for  a period of  ten years  and to pay a fine of Rs. 5,000/- each, in default  thereof to  undergo RI for a period of one year. The High Court after analysing all the circumstances and the evidence on  record found  that the order of acquittal dated 14th October,  1992 passed  by  the  Addl.  Sessions  Judge, Sonepat for  the aforesaid  offence was unsustainable. Since the trial  Court and  the High    Court  differed  in  their conclusions as  regards the guilt of the appellants, we have gone through  both the judgments of the courts below as well as the  material on  record in  order to satisfy whether the High Court was justified in reversing the order of acquittal in respect of both the appellants. 2.   Prem Singh-appellant  in Crl.  Appeal No.  1032 of 1997 (original accused  No.1) is  the son  of  Smt.  Shanti,  the appellant in  Crl. Appeal No. 1077 of 1997 (original accused No.2). There is no dispute that Sumitra (since deceased) was married to  A-1 on 24th June, 1998. Suraj Bhan (PW 4) is the father of  Sumitra. He  was serving  as  a  teacher  at  the relevant  time   and  celebrated  the  marriage  of  Sumitra befitting to  his  status.  Within  few  days  of  marriage, Sumitra was complaining to him and Phool Devi (PW 5), mother of the  deceased that  the appellants  were illtreating  and harassing her on the ground of insufficient dowry. They were also tanning  her that  she (Sumitra)  belonged  to  a  poor family of  a teacher who could not celebrate the marriage by giving sufficient  gifts and  dowry. Suraj Bhan then met the appellants and  pleaded that  whatever he could give, he had given and  any further  demand would be beyond his means. In the meantime,  Sumitra gave  a birth  to a  baby boy and the hopes of her parents were brighten as they expected this new

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child would  bring harmony between the daughter and the son- in-law. Since  constant demand  of money from the appellants was continued  even after the son was born to Sumitra, Phool Devi (PW  5) suggested  to Suraj Bhan (PW 4) that instead of giving any  money to  the appellant,  they should purchase a she-buffalo which  would be  a source  of  income  to  them. Despite giving  this she-buffalo,  the appellants  were  not satisfied. it  is alleged by the prosecution that some eight months prior  to the date of incident in question which took place on 3rd August, 1990 when Sumitra had come to the house of her  parents, she told about the additional demand of Rs. 5,000/- made  by the  appellants. Mr.  Tek Chand  (PW 6) who happened to be a common friend tried to mediate and asked A- 1 to  take back  his wife  and treat  her properly. However, there was  no change  in the  attitude of the appellants and consequently  on  3rd  August,  1990  during  night  Sumitra suffered burn injuries in the house of A-1. A-1 then removed Sumitra to  Civil Hospital,  Sonepat and  sent a  message to Suraj Bhan  about the  burn injuries sustained by her. Suraj Bhan (PW  4) and Phool Devi (PW 5) on receipt of information of burn  injuries sustained  by Sumitra,  went to  the Civil Hospital, Sonepat where Sumitra told her parents that unless Rs. 5,000/- were paid to the appellants, they will not allow her to live peacefully. Suraj Bhan (PW 4) was unable to meet the demand  immediately. Unfortunately  for  the  family  of Suraj Bhan (PW 4), Sumitra died in the early hours of August 11,1990. Om  Parkash was sent to the house of Suraj Bhan (PW 4) who  informed about  the death  of Sumitra Suraj Bhan (PW 4), Phool  Devi (PW 5) and other relatives went to the house of appellants  and when  they inquired  from them  as to how Sumitra died,  none of  the family members of A-1 could give factory explanation. Suraj Bhan (PW 4) then proceeded to the police station. In the meantime, an information was received by  ASI   Ram  Parkash   the  Sumitra   died  in  mysterious circumstances and  it was  suspected  that  she  might  have consumed poisonous  substance. Suraj  Bhan (PW  4)  who  was proceeding towards  the police  station met  ASI Ram Parkash and told  him that  death  of  Sumitra  was  caused  by  the appellants  as  he  was  unable  to  meet  their  demand  of additional dowry/amount  of Rs.  5,000/. The  complaint  was then forwarded  to the  police station  for registering  the offence against the appellants. ASI Ram Parkash (PW 7)  then proceeded  towards   the  house   of  A-1  and  started  the investigation. After  holding the  inquest  panchanama,  the dead body  was sent  to  the  civil  Hospital,  Sonepat  for conducting post  mortem. The  statements of  various persons came to be recorded. After completing the investigation, A-1 and A-2  were put  up for trial before the Session Court for an offence punishable under Section 304-B IPC. 3.   A-1 in his statement recorded under Section 313 Cr.P.C. denied that  he had ever demanded any money from the parents of Sumitra  or ill-treated  her physically  or mentally  and caused any  harassment to  her on the ground of insufficient dowry.   According to him when she sustained accidental burn injuries, she was taken to the hospital by him and was given every possible medical treatment to save her from agonies of burn injuries. Sumitra’s death, according to him, was either suicidal or  accidental. She  might have consumed the poison and, therefore,  there was  froth in  her mouth.  He pleaded that he  is innocent  and has been falsely implicated in the present prime. 4.   The defence  of A-2  was that  she  has  been  residing separately from  his son  A-1 and she had no knowledge as to how Sumitra  sustained the  burn injuries  and died  on 11th August,  1990.   She  never   demanded  any  dowry  nor  was

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dissatisfied with  the gifts  given  by  Sumitra’s  parents. having regard  to the  circumstances in  which she  died, it could be  a case  of either suicidal or accidental death for which she  played no  role.  She  is  innocent  and  she  be acquitted. 5.   The prosecution  in support of its case on the issue of illtreatment adduced  the evidence  of Suraj  Bhan  (PW  4), Phool Devi (PW 5) and Tek Chand (PW 6). As regards the cause of death,  the prosecution  relied upon  the evidence of Dr. R.N. Tehlan  (PW 1)  and the post mortem report submitted by him. In  addition thereto,  reliance was  placed on  various circumstances  to   show  that  the  death  of  Sumitra  was homicidal and not suicidal or accidental. 6    The  defence  in  support  of  its  case  examined  Dr. Satyawati Sharma  (DW 2)  to show  that A-1 had taken her to Civil Hospital,  Sonepat for  treatment. Ram Singh (DW 2), a neighbour was  examined by  the defence  to indicate that no illtreatment was given to Sumitra Dr. (Mrs) Sharda Arora (DW 1) was  also examined by the defence to show that Shanti (A- 2) was admitted in her nursing home from 6th August, 1990 to 14th August, 1990. 7    The Trial  Court on  appraisal of  oral and documentary evidence on  record found that the prosecution had failed to prove beyond  reasonable doubt  that A-1  and  A-2  demanded dowry/money from Sumitra and her parents inasmuch as none of the prosecution  witnesses on  this issue could consistently give evidence  at what point of time such demands were made. If the  prosecution had failed to prove such demand relating to  dowry/money,   then  the   cause  of   ill-treatment  or harassment caused  to Sumitra  could not  be  accepted.  The trial court  believed the  evidence of  Dr. Satyawati Sharma (DW 2)  who gave  medical treatment  to Sumitra for her burn injuries. Dr.  R.N. Tehlan (PW 1) who had failed to preserve the viscera  and also  failed to get the opinion of chemical analyser to  rule out the possibility of poisonous substance having been swallowed by Sumitra, it could not be positively held that the appellants had caused the death of Sumitra. 8.   The High  Court while  highlighting some o the features of the  case had  very succinctly dealt with the prosecution evidence in  detail  and  demonstrated  that  the  order  of acquittal recorded  by the  trial court  is contrary  to the evidence on record and, therefore, legally unsustainable. 9.   After hearing learned counsel for the parties and after going through the materials on record, we are satisfied that the judgment  and order  of conviction  rendered by the High court suffers  from no infirmity as far as A-1 is concerned. The reasons  for our  affirming the impugned judgment are as under:-      To begin  with, we may take up the case of Shanti (A-2) first. It is not in dispute that A-2 was residing separately from A-1  in a separate house. The prosecution had failed to adduce the  evidence on  record to show that A-2 was present at the time of incident in question at the house of A-1.  it is true  that as  far as  all demands  of  dowry/money  were concerned, Suraj  Bhan (PW  4), Phool  Devi (PW  5) and  Tek Chand (PW  6) referred  to what  was communicated to them by Sumitra. Sumitra  used to  say that  the appellants were not satisfied with  the dowry/gifts  given to her at the time of marriage. Suraj  Bhan (PW  4) and Phool Devi (PW 5) who were the best  witnesses on  this issue  made a general statement that Sumitra  told them  that the  appellants were demanding additional dowry/money  as they  wee not  satisfied with the dowry/gifts given at the time of marriage. However, both the witnesses have  failed  to  narrate  any  specific  instance wherein A-2  had caused  any illtreatment  or harassment  to

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Sumitra on  the issue  of additional  dowry or  money. Apart from this  when A-2 was residing separately from her son and when there  is no  positive evidence  on the  record to show that either  A-2 was instigating A-1 to demand of additional amount of  dowry/money and  for that  purpose telling him to cause illtreatment  or harassment  to Sumitra  it  would  be unsafe to  hold A-2  responsible for  an offence  punishable under Section 304-B IPC. Moreover, such a additional payment of money  was to benefit A-1 alone and not A-2 because there in no evidence on record to suggest that A-1 was helping A-2 neither by giving some money and/or other benefits., If this be so,  in cur  opinion, the High Court was not justified in convicting shanti  (A-2) for the offence under Section 304-B IPC. It is for this precise reason, we give benefit of doubt to A-2 and acquit her of the charge under Section 304-B IPC. to this  extent, the  impugned judgment  stands modified and the Crl.  Appeal No.  1077 of 997 filed by Smt. Shanti (A-2) is allowed and consequently she is acquitted. 10.  Coming to  the   case of the prosecution as regards the complicity of  A-1, w  find that  the evidence of Suraj Bhan (PW 4),  Phool Devi (PW 5) and Tek Chand (PW 6) is unblemish as regards the demand of additional dowry/money from Sumitra and her parents and for not acceding to such demands causing illtreatment and harassment to her. Suraj Bhan (PW 4) in his evidence has  given all  the necessary  details as to how on each occasion  whenever Sumitra  came to his house, narrated the incidents  off illtreatment and harassment caused to her on the  ground of not bringing sufficient dowry and also not fulfilling the additional demand of money. Phool Devi (PW 5) has corroborated in all material particulars the evidence of Suraj Bhan  (PW 4).  There is no effective cross-examination of both  these witnesses on this issue. There are some minor inter-se inconsistencies as regards the time factor which do not affect the substratum of the prosecution case. Tek Chand (PW 6) is an independent witness from the village who at one time mediated  on the  issued of  additional demand of money and persuaded  A-1 to take his wife Sumitra and matter would be sorted  out amicably.  In the  face of  this evidence, we have no  manner of  doubt that  A-1 has caused ill-treatment and harassment  to  Sumitra  including  beating  on  various occasions for not getting additional amounts/dowry. The High Court has  very carefully examined the evidence of all these witnesses and in our considered view the finding recorded by the High Court in this behalf suffers from no infirmity. The High court has given very good reasons and pointed out as to how  the   finding  recorded   by   the   trial   court   is unsustainable. We are in agreement with the reasons recorded by the High Court. 11.  Coming to  the criticism  as  regards  the  finding  of unnatural death  o Sumitra  due to  burn  injuries  and  the illtreatment caused  to her  by A-1, learned counsel for A-1 urged that  the evidence of expert Dr. R.N. Tehlam (PW 1) is inconclusive because  he ought  to have preserve the viscera and should  have forwarded the same to the chemical analyses for his  opinion to  rule out  the  possibility  of  Sumitra having consumed  a poisonous  substance. After going through the evidence  of Dr.  R.N. Tehlam  (PW 1),  we  are  of  the opinion that  there was  no occasion for him to suspect that any poisonous  substance was  consumed by Sumitra. The cause of death  given by  Dr. R.N.  Tehlam (PW  1) is that Sumitra died due  to asphyxia  as a  result of  smothering which was ante mortem  in nature  and was sufficient to cause death in the ordinary  course of  nature. Dr.  Tehlan also found that there were  multiple abrasions and contusions on the body of Sumitra, reddish  brown contusions  was also  found over the

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upper and lower lip all around. During cross-examination, he asserted that  death was  due to  asphyxia as  a  result  of smothering. In  the face  of this positive evidence, we have no manner  of doubt that Sumitra died due to asphyxia due to smothering-an  unnatural   death.  The  death  had  occurred admittedly within the seven years of the marriage of A-1 and Sumitra. A strong presumption does arise in the present case and A-1  has failed  to given  any probable  and  reasonable explanation  as  to  bow  Sumitra  died  in  his  house.  No explanation whatsoever  has been  offered by  A-1 as  to how Sumitra sustained  several abrasions  and contusions  on her body.   The explanation  given by  A-1 is that Sumitra might have swallowed  some poisonous  substance is  far from truth and was  rightly rejected by the High Court. Learned counsel for A-1  strongly relied upon the evidence of Dr. Sharma (DW 2) and  urged that  if A-1 had no love and affection for his wife, he  would  not  have  bothered  to  take  Sumitra  for treatment to  Civil Hospital,  Sonepat. Assuming that such a treatment was given to Sumitra by A-1 that does not demolish the prosecution  case as  regards  the  unnatural  death  of Sumitra on August 11.1990. 12.  Learned counsel  for  A-1  urged  that  any  additional demand of  dowry would  not be  covered by the definition of dowry under  Section 2  of the  Dowry Prohibition Act, 1961. This argument  needs to  be just  stated and  rejected. This argument completely  overlooks  the  amended  definition  of dowry contained in Section 2 and it reads thus:-      "In this  Act,  "dowry"  means  any      property or valuable security given      or  agreed   to  be   given  either      directly or indirectly-           (a) XXX    XXX           XXX          ....      ....          .....      at or before {or any time after the      marriage} {in  connection with  the      marriage of  the said  parties  but      does not  include} dower of mahr in      the case  of persons  to  whom  the      Muslim   Personal   Law   (Shariat)      applies."      In view  of this  amended provision,  we are  unable to accept  the   contention  raised   on  behalf  of  A-1  that additional demand of dowry would not fall under Section 2 of the Dowry Prohibition Act, 1961. 13.  The sum  and substance  of the above discussion is that the prosecution  has successfully  brought home the guilt of A-1 of an offence punishable under Section 304-B IPC and the High Court  was justified  in convicting  A-1 for  the  said offence. The  conviction of  A-1 under  Section 304-B IPC is upheld. As regards the quantum of sentence, we see no reason to interfered  with the  sentence awarded by the High Court. There is, therefore, no substance in the criminal appeal No. 1032 of 1997 filed by A-1. 14.  For the foregoing reasons, the Criminal Appeal No. 1077 of 1997 filed by Shanti (A-2) is allowed. Her conviction and sentence for  an offence  punishable under Section 304-B IPC is quashed and set aside and she is acquitted. She be set at liberty forthwith.  The Criminal  Appeal No.  1032  of  1997 filed by  Prem Singh  (A-1) is devoid of any merit and it is accordingly dismissed.