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Judgment
Kiran Anand Lall, J.—The appellants have come up in the appeal to this court against the judgment dated 20.1.1988 of Shri P.C. Nariala, Additional Sessions Judge, Sonepat, vide which they were convicted and sentenced for the different offences as under:-
Karambir and Satwanti:
Under Section 304-B IPC: To undergo rigorous imprisonment for a period of seven years.
Under Section 306 IPC: To undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1000/-. In default of payment of fine to further undergo rigorous imprisonment for two months
Under Section 498-A IPC: To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/-. In default of payment of fine to undergo further rigorous imprisonment for a period of one month.
All the sentences of imprisonment awarded for the offences under Sections 304-B, 306 and 498A of the Indian Penal Code, were ordered to run concurrently.
In a nut shell, the prosecution case is that marriage of Darshna, daughter of Faqir Chand complainant, was solemnized with Karambir appellant, on 8.10.1986. Parkash Lal Chugh, brother in law of Karambir, was the mediator in arranging this alliance. He was Accountant in State Bank, Taraori, and so was, Darshna''s brother, Anil Kumar. Karambir was earlier engaged to some other girl viz. daughter of one Nota Ram of Taraori and marriage was scheduled to take place on 8.10.1986. However, due to some reason, engagement was broken. Parkash Lal Chugh, thereupon, proposed to Anil Kumar for Darshna''s marriage with Karambir, saying that letter''s honour was at stake. It was also offered that he (Karambir) would not put forward any demand for dowry. The proposal clicked, and Karambir''s marriage was solemnised with Darshna on the same day on which his marriage was earlier scheduled to be held with the daughter of Nota Ram. Though the marriage was arranged in a hurry, yet the complainant gave dowry in marriage, as per his financial status. After marriage, Darshna was nick-named as Kamlesh (to be referred to as Darshna) by her in-laws. But, when, after marriage, she returned to her parents'' house, she informed them that her husband, Karambir, did not behave well with her. The complainant and his wife advised her that with the passage of time, his behaviour would improve. They also advised Karambir in this regard. But, even on her subsequent 2-3 visits to their place, Darshna complained to them against her husband (Karambir) and his mother Satwanti), and she also said that they had not been fair to her by arranging her marriage in hurry. She told them that her mother-in-law had been taunting her that she had not brought anything in dowry, and further, at her instance, her husband Karambir had been beating her after every 2-4 days. Her parents again advised her and sent her back to her in-laws house. Thereafter, while sending New Year Greetings Card, she despatched a hand written letter to her father, mentioning therein that she was very uncomfortable and her both brothers should come to meet her, or else she would commit suicide. On this, the complainant sent his younger son, Anil Kumar, to meet her. Anil Kumar, on return, informed him that Darshna had told him that she was very uncomfortable, that the two appellants had been harassing and taunting her for having brought insufficient dowry, and that she would do "some thing" if situation did not improve. He (complainant) contracted the mediator, Parkash Lal Chugh, in this regard. The letter assured him that he would talk to the appellants on the point. But, he, too, did not take any remedial steps in the matter. Ultimately, on 4.2.1987, he informed the complainant that Darshna was admitted in Hospital at Sonepat. The complainant, accompanied by his wife Kako Bai, sons Rajinder Kumar and Anil Kumar, and brother in law Hari Narain, went to Sonepat and found Darshna admitted in Hospital, in burnt condition. She was not in a position to speak. On the same day, at 6 P.M., she expired in the Hospital. The complainant, thereafter, got this case registered with the police by making statement, Ex.PE/2, on the basis of which formal first information report Ex.PE/1 was recorded. Both the appellants were arrested. Investigation was completed, and thereafter, challan was put in against them in court.
On receipt of the case in his court by way of commitment, learned Additional Sessions Judge, Sonepat, held trial, and convicted and sentenced both the appellants, as detailed above. The present appeal has been filed by the latter, against the verdict of conviction and sentence.
I have heard arguments addressed by Ms. Gargi Kumar, learned counsel for the appellants, and Shri R.D. Sharma, learned Assistant Advocate General, Haryana, appearing on behalf of the State.
It is not in dispute that death of Darshna took place within 7 years of her marriage. Her marriage was solemnized with Karambir appellant on 8.10.1986, and she expired on 4.2.1987 i.e. within less than four months of her marriage. The cause of death, as it appears in the statement of Dr. A.P. Gulati, Medical Officer, Civil Hospital, Sonepat, (PW-1) was due to shock as a result of extensive burns which were ante mortem in nature and were sufficient to cause death in the normal course of nature. The doctor further found that barring a part of toes of her feet, superficial and deep burns were present all over her body. And, it was not disputed that the sustained burns at her matrimonial house i.e. the house of appellants.
P.W. 4, Fakir Chand, and PW5, Anil Kumar, who are father and brother respectively of Darshna deceased, clearly testified that right from inception of her marriage, Darshna was subjected to harassment and cruelty by the appellants, in connection with demand for dowry. According to both of them, on her very first visit to their house, after 2-3 days of her marriage, she had complained that her husband Karambir and mother-in-law Satwanti had harassed her for not bringing sufficient dowry. Fakir Chand PW further testified that she was reluctant to go back to her matrimonial home. But, on being advised by them, she went back. Thereafter again, whenever she visited their house, she had been telling them, on each visit, that the appellants were not satisfied with the dowry given and were demanding more dowry. She had also been telling them that Karambir appellant used to beat her at the instance of his mother, Satwanti appellant. The oral testimony of witnesses in this regard finds corroboration from the contents of letters Exs. PH and PH/1 which she had addressed to her parents. A combined reading of these letters leaves no doubt in reaching the conclusion that the appellants had been harassing her and telling her that the dowry brought by her was insufficient and her parents should give more dowry. In Ex.PH, she had also written that since the day she had come to her matrimonial house, she had been weeping, daily. She had further written that as she was not in a position to do anything, she would commit suicide, one day.
In order to find out as to whether the death of Darsha which had, undisputedly, occured due to burns and that, too, within less than four months of her marriage, can be termed as dowry-death, it would be useful to re-produce the relevant portion of Section 304-B of the Indian Penal Code and Section 113-B of the Indian Evidence Act. The relevant portions of Section 304-B IPC and Section 113-B of the Indian Evidences Act, read as under:
"Section 304-B. Dowry death (1) Where the death of a woman is caused by any burn 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".
"Section 113-B. 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 has 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".
Thus, there are three ingredients for establishing an offence u/s 304-B of the Indian Penal Code, viz. (a) that there was demand of dowry and harassment by the accused (b) that the deceased died and (c) that the death was caused by any burn or bodily injury or occured under un-natural circumstances and that too within 7 years of marriage. And Section 113-B of the Indian Evidence Act provides that if prosecution succeeds in showing the existence of these ingredients, the court shall draw a presumption that the accused had caused the dowry death.
In this case, the evidence on record clearly established the presence of all the three ingredients of Section 304-B IPC. Therefore, there was no option with the trial court but to raise a presumption of dowry-death against the appellants. And, once this presumption was raised, onus shifted on to the appellants to prove that they had no role to play in the death of Darshna. Therefore, let us scan the defence evidence, in order to find out if the appellants had succeeded in discharging this onus? According to the testimony of DW2 Omesh Chand, who is brother of Karambir appellant and son of Satwanti appellant, Darshna caught fire while she was preparing meals. He went ahead to help her in extinguishing fire, and in that process, he also sustained burns on his left arm and face. According to DW4 Dr. R.L. Tehlan, he found 15 percent super-ficial burns over the left side of his neck, face, upper limbs, and left leg. But, in cross-examination, he had to admit that he did not mention the percentage of burns in the M.L.R. That being so, his testimony regarding presence of 15 percent burns on the person of Omesh DW, cannot be accepted without a pinch of salt. In any case, the question is as to whether the presence of (some) burns on the person of Omesh DW can be held sufficient enough to rebut the presumption of dowry death which had been raised against the appellants under Sections 113-B of the Evidence Act on the basis of prosecution evidence discussed above? Answer to this query would, of course, be in the negative.
In so far as the testimony of DW 1 Parkash Lal Chugh who tried to give a chit of good character to the appellants, in concerned, the same has also to be discarded in view of the over whelming documentary as well as oral evidence led by the prosecution about the harassment caused to the deceased by the appellants in connection with the demand of dowry. Even otherwise, his evidence can easily be termed as that of an interested witness, as he is the son in law of Satwanti appellant and brother-in-law (sister''s husband) of Karambir appellant.
The above discussed evidence clearly reveals that the judgment of trial court holding the appellants guilty under Sections 304-B and 498-A IPC and sentencing them thereunder, does not suffer from any infirmity. The same is, accordingly, up held. But, the judgment is, erroneous to the extent it recorded in verdict of guilt u/s 306 IPC. Because, there is a clear cut finding of the trial court that the appellants had, in fact, caused the dowry death of Darshna. The judgments relied upon by the learned counsel for the appellants viz. 1986(1) C.L.R. 189, Mohinder Singh v. State of Punjab, 1983(2) C.L.R. 391, Shiv Lal and Ors. v. The State of Haryana 1985(2) C.L.R. 361, Chanchal Kumari and Ors. v. U.T. Chandigarh 1985 (2) C.L.R. 207, Puran Singh and Ors. v. State of Haryana, and 1984(1) C.L.R. 647, Mohan Lal and Anr. v. State of Punjab, pertain to cases in which conviction of accused u/s 306 IPC alone was involved. The some are, therefore, not relevant to this case, and are, as such, not being discussed. The judgment of trial court to the extent it pertains to the conviction of appellants u/s 306 IPC is, accordingly, set aside and they are acquitted of this charge.
Appeal is disposed of accordingly in the terms mentioned above.