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Vikram vs State Of Haryana on 1 August, 2018

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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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. Madhuban

9. 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 intact

10. 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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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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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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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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(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 JUDGE

1.8.2018
sjks

Whether speaking / reasoned : Yes / No
Whether Reportable : Yes / No

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