CRA-D-288-DB-2013 (O/M) -1-
857
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-288-DB-2013 (O/M)
Date of decision : 1.8.2018
Vikram …… Appellant (s)
Versus
State of Haryana ……. Respondent (s)
CORAM: HON’BLE MR. JUSTICE A.B. CHAUDHARI
HON’BLE MR. JUSTICE KULDIP SINGH
Present:- Ms. Rajni Paul and Mr. Rajeev Sharma, Advocates,
for appellant.
Mr. Vivek Saini, DAG Haryana.
1. Whether the Reporters of local newspaper may be allowed to
see the judgment ?
2. To be referred to the Reporter or not.
3. Whether the judgment should be reported in the digest ?
-.- -.-
KULDIP SINGH, J
This appeal is directed against judgment dated 19.3.2013, passed
by learned Additional Sessions Judge, Jind, vide which accused-appellant was
convicted under Sections 304-B and 406 IPC and vide order of sentence dated
21.3.2013, sentenced as under :-
Offence Rigorous Imprisonment Fine In default of payment of fine
304-B IPC Life Rs. 5000/- SI for two months
406 IPC 1 (one year) Rs. 1000/- SI for 15 days
Both sentences shall run concurrently.
Nisha Devi, wife of present appellant Vikram, died on 27.9.2011
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after consuming some poisonous substance. The police on receiving the
intimation reached the spot where Om Parkash, father of deceased Nisha,
made a statement to the police to the effect that he is running a Tea rehri (cart).
He has got three daughters and two sons. His daughter Nisha was married
with accused Vikram about 16 months back. He had given sufficient dowry as
per his capacity. Nisha Devi gave birth to a female child, who was aged
about 6/7 months at the time of her death. Om Parkash stated that his son in
law and parents in law of his daughter used to harass and beat her daughter for
brining less dowry. His daughter told him about same many times. He had
gone to village of accused Khera Khemawati and requested the in laws of her
daughter to understand, but of no avail. About 20 days ago, Nisha Devi
informed him telephonically that his husband is demanding a motorcycle and
beating her. Then, he alongwith his son Jitender again visited village Khera
Khemawati at the hosue of accused and told his son in law and parents in law
of his daughter that he is a poor man and is unable to give motorcycle. Today
i.e. 27.9.2011, at about 10:00 AM, he received a message that his daughter
Nisha made a telephone call which was received by his elder daughter that
husband and parents in law of Nisha are beating her. He went to work. His
son came to him and told him that he has been called at house. On reaching
home, his two sisters, who were already married in village Khera Khemawati
told him that he should go to house of her daughter Nisha in village Khera
Khemawati. On reaching village Khera Khemawati, he found that his
daughter Nisha Devi was lying dead. Om Parkash alleged that his daugther
has been murdered by accused by serving some poisonous substance.
The police after recording the statement lodged FIR (Ex.PA/2)
under Sections 304-B and 406 IPC. The inquest report (Ex.PG) was
prepared. The post mortem of dead body was got conducted. The viscera was
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sent to chemical examiner. The police also recovered dowry articles, vide
recovery memo Ex.PB. After completion of investigation, accused Vikram
was challaned. Bala and Lakhmi Chand, father and mother of Vikram, were
found innocent.
Accused Vikram was chargesheeted under Sections 304-B and
406 IPC, to which he pleaded not guilty.
In support of its case, prosecution examined as many as 11
witnesses.
In the statement under Section 313 Cr.P.C., accused while denying
the evidence led against him stated that he has been falsely involved in this
case. Nisha Devi was kept nicely at her matrimonial home. She was not
subject to any harassment or cruelty. He claimed that he already owned a
motorcycle No. HR33C-1162. It was a simple marriage. He is innocent.
In defence, accused produced registration certificate of motorcycle
(Ex.DL) and closed the evidence.
After going through the evidence and hearing the prosecution and
defence counsel, the learned Additional Sessions Judge, Jind, convicted and
sentenced the accused as aforesaid.
We have heard the learned counsel for accused, learned State
counsel and have also carefully gone through the file and lower Court file also.
First of all, medical evidence in the form of statement of Dr.
Rohit Raina (PW4), Medical Officer, General Hospital, Ambala, shows that
when post mortem was conducted on dead body, following injuries were
found :-
‘1. A blackish brown abrasion of size 6×2 cm on lateral aspect
of right eye.
2. A blackish brown abrasion of size 6.5×1 cm extending from
angle of mouth downwards on right side.
3. A blackish brown abrasion of size 4x3cm on right shoulder.
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CRA-D-288-DB-2013 (O/M) -4-4. A blackish brown abrasion of size 2x1cm on left knee with
sand particles overlying area of salwar of left knee which is
torn.5. A blackish brown abrasion of size 1x1cm just below right
ear.6. A blackish brown abrasion of size 1x1cm present on dorsal
aspect of left hand near wrist joint.7. A blackish brown abrasion of size 2x1cm on left shoulder.
8. 2 small blackish brown abrasion of size .5x1cm present
above left eyebrow.8. In our opinion the cause of death in this case will be given after
receipt of repot from F.S.L. Madhuban9. Handed over to police after post mortem examination - 1) well
stitched body of deceased. 2) a copy of pmr 3) police paper no 1 to
22 4) a cardboard box with 10 seals intact containing various
tissues in jar and vials 5) an envelope containing (police paper, copy
of pmr forwarding letter, sample seal) to fsl madhuban 6) pulinda
containing pink salwar and pink chunni with 6 seals intact10. Probable time elapsed between a) between injury and death -variable
b) between death and post mortem- 6-36 hrs.'
No ligature mark on the neck was found. As per opinion of the
doctor, the time between injury and death is variable. The nature of injuries
shows that these are blackish brown abrasions and apparently, these injuries
were received by deceased many days prior to her death. The injuries are on
the lateral aspect of right eye, angle of mouth downwards on right side, right
shoulder, left knee, just below ear, left hand near wrist joint, left shoulder and
left eye brow.
As per opinion of the doctor, death was due to consumption of
organochloro pesticide (Endosulfan). Regarding the injuries, he has stated that
injuries mentioned in the PMR are accidental injuries. The report of FSL
also confirmed the cause of death to be due to consumption of organochloro
pesticide (Endosulfan). The medical evidence does not suggest that any force
was used to feed the said organochloro pesticide to deceased. Therefore, the
consumption of said pesticide was the voluntary act of deceased.
In this way, from the medical evidence, it is proved that death of
Nisha Devi occurred within 7 years of her marriage.
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CRA-D-288-DB-2013 (O/M) -5-Section 304-B IPC provides as under :-
'S.304-B- 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 purpose
of this sub-section, "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.'
Now, the question would arise as to whether said death is a
dowry death or it is a case of simple suicide, regarding which there are no
allegations by complainant party. The allegations levelled against accused
party are that accused and his parents are demanding dowry. It was
specifically mentioned in the complaint that accused was demanding
motorcycle, whereas the accused has stated that he already had a motorcycle
Hero Honda Splendor No. HR33C-1162. When father of deceased was
examined in the Court as PW1, he stated that accused was also demanding
fridge and AC also, whereas AC and fridge were not mentioned in the
complaint and same is taken as improvement and cannot be relied upon. Om
Parkash had voluntarily made a statement before the police alleging that a
motorcycle was demanded. The complainant is running a tea stall on a cart
and, therefore, he does not have much means. The deceased had 6/7 months
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CRA-D-288-DB-2013 (O/M) -6-old (at the time of her death) child from the marriage. The complainant has
stated that earlier, he had visited house of accused and asked the accused not to
harass his daughter. Therefore, it appears that there was some matrimonial
discord.
Now, the question is as to whether any demand of motorcycle was
made or not ?
When Om Parkash was subjected to cross examination, he stated
that his two sisters, namely, Sushila and Salochana, are married in the same
village i.e. Khera Khemawati. Sushila and Salochana could be the persons,
who being residents of same village could know whether the deceased was
being harassed by her husband and her in laws or not. Even they were not
examined by police under Section 161 Cr.P.C. Om Parkash had further
admitted that his daughter visited his house occasionally with her husband and
other members of family and he also used to visit the house of her daughter.
The daughter of deceased Mehak is now being brought up by accused party.
Next witness examined by prosecution to prove allegations is
Sohan Lal (PW2), who is cousin of Om Parkash. His statement is also that
accused was demanding fridge, AC and motorcycle Splendor. However, in
his statement before the police under Section 161 Cr.P.C., with which he was
duly confronted, he did not mention that the demand of motorcycle is of make
'Splendor'.
Jitender, brother of deceased appeared as PW3. He is stated to
have accompanied his father. He has also supported the version put forth by
his father Om Parkash. His cross examination reveals that dead body of Nisha
was cremated in village Khera Khemawati where she was residing with her
husband. He stated that it was a simple marriage.
ASI Jai Bhagwan, Investigating Officer, while appearing as
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CRA-D-288-DB-2013 (O/M) -7-PW5, proved the formalities of investigation. In cross examination, he stated
that he has sought opinion of doctor regarding injuries, vide application Ex.PJ
and that doctor has given opinion that injuries are more often of a road side
accident though it could also be caused by blunt weapon.
Accused has claimed in statement under Section 313 Cr.P.C. that
he already has a splendor motorcycle. The copy of registration certificate
(Ex.DL) shows that accused was already having Hero Honda Splendor
motorcycle bearing No. HR33C-1162. Therefore, it is unlikely that accused,
who is already having a Splendor motorcycle, will demand another Splendor
motorcycle from his father in law who is running a tea stall on a cart and has
no means to buy the same. It appears that due to some matrimonial discord,
deceased Nisha Devi committed suicide and that a story of demand of
Splendor motorcycle was putforth to make out offence under Section 304-B
IPC.
As a result of foregoing discussion, we are of the view that
prosecution has failed to prove that death of Nisha Devi is connected with
demand of dowry and is a dowry death. Consequently, the ingredients of
Section 304-B IPC are not proved. There are no allegations that there was
misappropriation of dowry articles.
ORDER
(i) CRA-D-288-DB-2013 is allowed.
(ii) Impugned judgment of conviction dated 19.3.2013 and order of
sentence dated 21.3.2013, passed by the learned Additional Sessions Judge,
Jind, convicting the appellant-Vikram for the offence under Section 304-B of
Indian Penal Code sentencing him to undergo rigorous imprisonment for life
and one year rigorous imprisonment under Section 406 IPC in Sessions Case
No. 4 dated 1.2.2012 is set aside.
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CRA-D-288-DB-2013 (O/M) -8-(iii) Appellant-Vikram is acquitted of the charge for which he was
convicted. Fine, if paid, be returned to him.
(iv) He be released forthwith, if not required in any other case.
(A.B. CHAUDHARI) (KULDIP SINGH)
JUDGE JUDGE1.8.2018
sjksWhether speaking / reasoned : Yes / No
Whether Reportable : Yes / No8 of 8
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