Vijay Pal vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Vijay Pal son of Satya Nand (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Jagadhari dated 17.12.1994. By virtue of the impugned judgment and the order of sentence the learned trial court held the appellant guilty of the offences punishable under Sections 304B and 498A of the Indian Penal Code. The accusedappellant was sentenced to undergo rigorous imprisonment for a period of 7 years for the offence punishable under Section 304B Indian Penal Code. He was further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 200/ for the offence punishable under Section 498A Indian Panel Code. In default of payment of fine the appellant was to undergo further rigorous imprisonment for six months. Sentences were to run concurrently.

Suresho Devi deceased was the wife of the appellant. They were married some time in 1987. On 1.8.1992 she went outside the house to bring some medicines for herself and did not return. Her dead body was recovered on 4.8.1992 from the canal.

It is thereafter that investigation was conducted with respect to offences punishable under sections 304B and 498A Indian Penal Code. The prosecution case in brief is that at the time of the marriage the father of the deceased had given sufficient dowry. Subsequently, whenever she came back to her parents'' house, she told them that the accused has been harassing her to bring more dowry. On one occasion Rs. 5800/ were given. On many other occasions Suresho Devi was told that they were not in a position to pay more and only Rs. 100/ or Rs. 200/ were paid. The appellant had even made a demand for Rs. 7,000/. Rakesh Kumar brother of the deceased had told him that he will talk to his father and would come to their house. Suresho Devi even was assaulted. The appellant otherwise consumed liquor and misbehaved. As a result of persistent demands and harassment, the prosecution asserts that she jumped into the canal.

The cause of death was opined to be drowning in the postmortem report. On basis of the statement of Rakesh Kumar, first information report was recorded. Formal first information report was recorded by Assistant Sub Inspector Ram Kumar. Subsequently, after completing the investigation SI Dharam Paul submitted the challan against the appellant.

The learned trial court framed charges against the appellant for the offences punishable under Sections 304B and 498A Indian Penal Code. The appellant pleaded not guilty and claimed a trial.

In support of its case, the prosecution had examined 14 witnesses. On appraisal of the said evidence the learned trial court held that the prosecution had successfully proved its case beyond all reasonable doubt against the appellant with respect to the offences punishable under Sections 304B and 498A Indian Penal Code. Subsequently, the order of sentence as such was passed.

Aggrieved by the same the present appeal has been filed.

Learned counsel for the appellant highlighted the fact that the identity of the dead body has not been established. He referred to the statement made by the appellant under Section 313 of the Code of Criminal Procedure that the deceased was mentally upset due to the birth of a dead child in January, 1992. after that she was missing from the house for about 8 days. On 1.8.1992 she had gone for taking medicines and did not come back and that she was still missing.

The argument advanced and pressed by the learned counsel for the appellant has simply to be stated as rejected. It is true that Agya Pal PW9 did not support the prosecution version that he had seen a lady jump into the canal but admitted that he had told the police in his statement recorded under Section 161 Cr.P.C. that certain women were coming with the grass. They raised an alarm that some woman had jumped into the canal. Even Sewa Ram PW10 did not support the prosecution version that he had seen the deceased jumped into the canal. But seeing somebody jumped into the canal, was not the prosecution version. Rakesh Kumar PW3 is the brother of the deceased. He specifically stated that on 4.8.1992 they had gone towards village Balla. The body of Suresho Devi was floating in the canal water. Besides that he identified the photograph Ex. P1 to be that of his sister. Being the brother he would be a natural witness to identify his deceased sister. There is nothing on the record to indicate that he had not identified the body of the deceased correctly. Telu Ram PW4 father of the deceased did not identify from Ex. P1 (photograph) that the body was that of his daughter but he lends sufficient corroboration to the statement of Rakesh Kumar PW3 when he stated that clothes Ex. P3 and P4 which were recovered from the person of the dead body had been given by him to Suresho Devi. If a person is not able to identify the body of the deceased from a photograph, that necessarily does not imply that he is not telling the truth. He correctly identified the clothes which were on the dead person and in any case there is no reason to discard the statement of Rakesh Kumar PW3.

Learned counsel had drawn the attention of the court to the statement of Hukam Chand PW5 who is resident of village Aalahar and urged that he could not identify the body of the deceased. However, the statement of the witness has to be appreciated as a whole. He clarifies that Rakesh Kumar was able to identify the body of his sister. It is obvious that he is telling the truth and in addition to that he even identified that body of Suresho Devi from the photograph Ex.P1. It is in the evidence of Dr. S.K. Dhattarwal that the body of the deceased was intact. Therefore, there was no problem in identifying the same. In face of the aforesaid it must be held that the deceased had been identified correctly by Rakesh Kumar PW3.

Rakesh Kumar PW3 was emphatic and unambiguous in his statement pertaining to demand of dowry by the appellant. He makes statement of the demand of dowry by the appellant directly and also what was told to him by the deceased. The witness states that his sister had always been telling that she had been harassed for bringing insufficient dowry. Once Rs. 5800/ were paid. On many occasions Rs. 100/ or Rs. 200/ were given. The appellant again demanded Rs. 7000/ and was told that he should contact the father of the deceased. Besides that the witness stated that the appellant was also addicted to take alcohol. To the same effect is the statement by the father of the deceased Telu Ram PW5 that Rs. 5800/ were given to the appellant. The deceased used to come to him because she was beaten by the appellant as the appellant wanted money to purchase land. Hukam Chand resident of the village too made a similar statement supported by Naresh Kumar PW11. Banarsi Dass PW12 is the uncle of the deceased. He stated that the appellant used to assault Suresho Devi under the influence of liquor. He used to compel her to fetch more dowry. One year before the death of Suresho Devi he had paid Rs. 500/ to him. The money was still being demanded. The evidence referred to above leads one to conclude unhesitatingly that the appellant had been making demand for dowry time and again. The said evidence is unshaken and the findings of the trial court must be reaffirmed.

It is argued that it had transpired from the evidence that there was no demand made at the time of marriage pertaining to dowry. On the strength of this argument, it was urged that the version about demand of dowry is not correct. On closer scrutiny the said plea must fail. To a greedy person the demand can arise at any time. It is not necessary that demand of dowry should be made immediately after the marriage. It can be made any time after the marriage also.

Confronted with that position it was vehemently urged that it transpired from the statement of Rakesh Kumar PW3 that there is no liquor vend in the village and therefore, there was no occasion for the appellant to drink and harass the deceased. The said plea is too far fetched because it is not established that there was no liquor vend in the near about vicinity of the village. It has transpired in evidence that the appellant has been consuming excess liquor and thereupon harassed Suresho Devi.

The mainstay of the argument of the appellant''s learned counsel was that there is nothing to indicate that soon before her death the deceased was subjected to cruelty or harassment with respect to the demand of dowry. He urged that demand if any was many years before her death.

Section 304B of the Indian Penal Code reads 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."

There is no dispute as is apparent from the plain reading of Section 304B of the Indian Penal Code that it must be shown soon before her death that she was subjected to cruelty and death for demand of dowry. Reliance was placed on the decision of this court in the case of Suresh Kumar and others v. State of Punjab, 1993(3) RCR 404 . In the cited case the incident of harassment on account of dowry related to 11/2 months prior to committing suicide by the bride. It was held that it was not soon before her death that such a cruelty had occurred. But in the facts of the present case the evidence is otherwise. Banarsi Dass PW12 uncle of the deceased has categorically deposed that even 10 to 15 days prior to the death of Suresho Devi he had met her. Even at that time she complained to him about her having been thrown into the well by marrying her with the appellant. Reference was also made to the demand of dowry by the appellant. It is obvious from aforesaid that it was a persistent demand which continued till the death of the deceased. The deceased was harassed as a result of which she has to put an end to her life. It was with respect to demand of dowry. The conduct of the appellant also cannot be ignored that even when his wife was missing he made no complaint.

When Telu Ram PW4 father of the deceased was crossexamined suggestion was given that he had demanded Rs. 25,000/ from the appellant for a compromise. But in his statement under Section 313 Code of Criminal Procedure, no such version is forthcoming. The defence floated during crossexamination is inconsequential. These factors clearly show that the defence offered was of no substance and prosecution successfully proved the ingredients of Sections304B and 498A of the Indian Penal Code. There is no ground to set aside the impugned judgment and the order of sentence.

For these reasons, the appeal being without any merit must fail and is dismissed.