Mehtab S. Gill, J.@mdashThis is an appeal against the judgment/order dated 5.3.1997 of the Sessions Judge, Ambala whereby he convicted appellant Ashok Kumar u/s 304-B, I.P.C. and sentenced him to undergo imprisonment for life.
2. Criminal Revision No. 525 of 1997 has been filed by the complainant against the acquittal of Smt. Parmeshwari wife of Hans Raj, son of Rur Chand, Subhash Chand son of Hans Raj and Som Nath @ Mohan Lal son of Hans Raj.
3. We will be deciding both the appeals as well as the revision by this common judgment.
4. The prosecution case is unfolded by the statement Ex. PK of Ram Avtar given to SI Hari Ram at 6.30 p.m. on 20.12.1994 at village Durana. Ram Avtar stated that he does the work of repair of cycles in Ambala City. He has three children. His eldest daughter Shashi Bala aged 19 years was married to Ashok Kumar son of Hans Raj on 13th October, 1994. On the occasion of marriage, he had given sufficient dowry as per his capacity. Soon after the marriage, his daughter''s mother-in-law Parmeshwari Devi and Jeths Subhash Chand and Som Nath started harassing her and taunting her for not bringing a scooter in dowry. They used to beat her also. Shashi Bala visited the house of her father Ram Avtar twice during this period. She wept before him and told him that her in-laws were harassing her. Complainant gave her Rs. 10,000 and sent her back. The second time also when she came, complainant gave her another sum of Rs. 10,000 after borrowing it from his brother and he sent-his daughter back to Village Durana.
5. On 20.12.1994 at about 1 p.m., appellant Ashok Kumar gave a telephone call to Inder Raj (complainant''s wife''s brother) that his Bhanji (niece) had consumed some poisonous substance and her condition was serious. Ashok Kumar asked him to reach immediately. After a short while, Inder Raj received another telephonic message that Shashi Bala had expired. Complainant on getting the message from his brother-in-law Inder Raj, took Siri Ram, Madan Lal, Ramesh Kumar, Inder Raj and his father along with some other persons, totalling 7/8 persons and reached Village Durana. Shashi Bala was found lying dead on the mattress on the floor of the bed room. There was strangulation mark on her neck. Complainant then rang up the police station and conveyed the death of his daughter to Hari Ram, SI/SHO, Police Station Sadar, Ambala. On the basis of this statement, formal F.I.R. Ex. PK/2 was registered on 20.12.1994 at 7.45 p.m. Special report reached the Illaqa Magistrate on 20.12.1994 at 11.15 p.m.
6. The prosecution to prove its case, brought into the witness-box PW-1 Dr. R.K. Patnayak, PW-2 Constable Manohar Lal, PW-3 Surinder Kumar, PW-4 Ramesh Kumar, PW-5 Ram Avtar, PW-6 Madan Lal and PW-7 Inspector Hari Ram.
7. Learned Counsel for the appellant has stated that before a presumption u/s 113-B of the Indian Evidence Act, 1872 could be taken into consideration, it was incumbent upon the prosecution to prove that the case fell within the ambit of Section 304-B, I.P.C. Onus of proof was squarely on the prosecution, which it had miserably failed to do so. In the case in hand, the ingredients of harassment with regard to dowry and ingredients of soon before her death, the deceased should have been subjected to cruelty, have not been proved. The case, if any, against the appellant would fall within the ambit of Section 113-B of the Indian Evidence Act, 1872 and at the most, the appellant could be convicted u/s 306, I.P.C. The alleged demand for scooter as per the prosecution was being made by all the accused out of which only appellant Ashok Kumar has been found guilty, but the rest have been acquitted by the Trial Court, giving them the benefit of doubt. Nowhere has it come in evidence, whether in the statements of PW-4 Ramesh Kumar, PW-5 Ram Avtar, PW-6 Madan Lal, nor in the F.I.R. Ex. PK/2 that the appellant had made a demand for scooter. In fact, it has come in evidence that the deceased had passed 10th Class, she was an educated lady, she, is fact, wanted to shift to the town which was resisted by the appellant, as he had his old parents to look after. It was out of frustration that Shashi Bala committed suicide. Further, no independent corroboration is coming as to the receiving of Rs. 10,000 in two instalments by the deceased.
8. Learned Counsel for the appellant has further argued that the ingredients of soon before death should be a live and continuous link between the demand of dowry and death. If the demand for dowry becomes stale, such like death will not fall within the ambit of a dowry death. As per the testimony of PW-5 Ram Avtar, the last demand was allegedly made by the appellant on or before 5th or 7th of December, 1994 for 13 days i.e. from 7.12.1994 till 20.12.1994, no demand was made. The alleged demand of dowry soon before the death of Shashi Bala cannot be termed as a dowry death,
9. Learned Counsel for the appellant has relied upon a judgment of the Hon''ble Supreme Court in Hem Chand v. State of Haryana 1994(3) RCR 625 (SC).
10. Learned Counsel for the State has argued that the occurrence had taken place at 1 p.m. on 20.12.1994. If it had been a case of Suicide, the members of the family who were all living in the same house, would have come to know that the deceased was about to kill herself by hanging. The conduct of the appellant is highly suspicious. Though he knew that the death was due to asphyxia and by hanging, but still he informed Inder Raj, the brother-in-law of the complainant Ram Avtar (PW-5), that the deceased had consumed poison. If we presume that appellant had gone to look after his Karyana shop, but still we cannot be oblivious of the fact, that the mother-in-law and father-in-law of the deceased were very much present in the house. The promptness in lodging of the F.I.R. goes a long way a proving the case of the prosecution. No consultations or confabulations could take place within a span of six hours. This is a rare case where death has taken place, for demand of dowry, within three months of the marriage. PW-5 Ram Avtar did the work of repairing cycles. He was a poor man. For him giving a sum of Rs. 20,000 was itself a very big burden. It has come in the testimony of PW-5 Ram Avtar that he had already spent Rs. 1.25 lacs on the marriage of his daughter. The statements of PW-5 Ram Avtar, PW-4 Ramesh Kumar and PW-6 Madan Lal corroborate each other inter se, on all the material points of demand of dowry and, harassment of the deceased, soon before her death.
11. Learned Counsel for the State has relied upon a judgment of the Hon''ble Supreme Court in
12. We have heard the learned Counsel for the parties and perused the record with their assistance.
13. Learned Counsel for the appellant has laid much stress on this aspect of the case, that the harassment for demand of dowry did not take place soon before the death of the deceased. Learned Counsel has conceded that death of the deceased was unnatural and within a span of seven years of marriage. PW-5 Ram Avtar in his testimony before the Trial Court has stated, that he was running a cycle-repair shop. Appellant Ashok Kumar after his marriage never visited the house of the complainant. The first time his daughter visited his house was in the first week of November, 1994 and the second was on the 5th/7th of December, 1994. He had spent Rs. 1.25 lacs on the marriage of his daughter. The first time when his daughter came, she was weeping and she stated that appellant along with the other acquitted accused were demanding a scooter, by saying that she had not brought a scooter at the time of marriage. After hearing the pleas of his daughter, he gave Rs. 10,000 on both the occasions. In fact, the second time he borrowed a loan of Rs. 10,000 from his brother Madan Lal (PW-6) for giving the same to his daughter. The argument of the learned Counsel for the appellant, that there was a gap of 13 days between the demand and death and that it would not fall within the ambit of Section 304-B, I.P.C., as the demand for dowry was not "soon before her death" does not cut much ice. The word "soon" cannot be taken to mean "immediate". We are of the considered opinion that in fact, the period of 13 days would be well within the ingredient of the word "soon before her death" as envisaged in Section 304-B, I.P.C.
14. We will now come to the next argument of the learned Counsel for the appellant that there was no harassment for demand of dowry soon before her death. This argument of the learned Counsel also is devoid of any force. Appellant was demanding a scooter, as he was not given one, at the time of his marriage. Deceased Shashi Bala went to her father''s house twice, once in the first week of November, 1994 when her father gave Rs. 10,000 to her, so that her husband gets pacified and the second time on 5th/7th December, 1994, when after borrowing a sum of Rs. 10,000 from his brother Madan Lal (PW-6), he gave this amount to her and sent her back to her husband''s house. Little did he know that the greed of the appellant would not be satiated by Rs. 20,000. PW-5 Ram Avtar father of the deceased was poor man. Amount of Rs. 20,000 was much beyond his means. The testimony of PW-5 Ram Avtar gets corroboration from PW-4 Ramesh Kumar and PW-6 Madan Lal.
15. The prompt lodging of the F.I.R. has gone a long way in proving the case of the prosecution. Occurrence had taken place on 20.12.1994 at 1 p.m. in the area of Village Durana. Statement of PW-5 Ram Avtar (Ex. PK) was recorded at Village Durana. Both Madan Lal (PW-6) and the Investigating Officer Inspector Hari Ram (PW-7) have stated that police reached the village at 5.30/6.00 p.m. on 20.12.1994. PW-7 Inspector Hari Ram has stated that he got a telephonic message from PW-5 Ram Avtar that his daughter had been killed. He recorded a D.D.R. and thereafter went to Village Durana at 5.40/6 p.m. Thereafter, he recorded the statement of Ram Avtar (Ex. PK). Formal F.I.R. Ex, PK/2 was registered on the same day at 7.45 p.m. Special report reached the Illaqa Magistrate on 20.12.1994 at 11.15 p.m. On the basis of disclosure statement Ex. PJ made by appellant Ashok Kumar to Inspector Hari Ram (PW-7), Chunni Ex. P-1 and knife Ex. P-2, which was used to cut the rope by which the body of the deceased was hanging, was recovered. The disclosure statement and recovery was made in the presence of PW-5 Ram Avtar and PW-4 Ramesh Kumar.
16. Once the ingredients of Section 304-B, I.P.C. had been fulfilled by the prosecution, the onus to prove his innocence had then shifted to the appellant as per Section 113-B of the Indian Evidence Act. The two defence witnesses brought before the Court, by the appellant namely DW-1 Surinder Mohan and DW-2 Jagdish Chand belong to the village of the appellant. They have not stated anything regarding the harassment or demand of dowry. In fact, DW-1 Surinder Mohan has gone to the extent of saying that it is correct that he had no talk any time with deceased Shashi Bala. It is clear that this witness has given a one-sided version on the asking of the appellant. Similarly, DW-2 Jagdish Chand has stated that the deceased wanted to be kept in Ambala City and he has further stated that she might have died due to that. Nothing has been stated as to whether the deceased or the appellant has talked to him on this aspect. Both these witnesses are interested witnesses.
17. In the judgment in Hem Chand v. State of Haryana (supra) relied upon by the Counsel for the appellant, the Hon''ble Supreme Court has considered the point, whether the extreme punishment of imprisonment for life should be given in such like cases. The Hon''ble Apex Court has held, that if it is shown that death was an unnatural death and within seven years of marriage and the deceased was subject to cruelty or harassment, for or in connection with the demand for dowry, the Court shall presume that such a person has caused a dowry death. Further, whether the extreme penalty of life imprisonment should be awarded to the accused or not, should be also taken into consideration. We have considered this aspect of awarding of sentence minutely. Dowry death in this case had taken place within three months of the marriage, The demand of a scooter and harassment of the deceased have been fully proved. There is no discrepancy in the statements of PW-5 Ram Avtar, PW-4 Ramesh Kumar and PW-6 Madan Lal. The ingredients as envisaged in Section 304-B, I.P.C. have been fulfilled by the prosecution. Appellant is guilty of committing the offence u/s 304-B, I.P.C.
We do not find any reason as to why we should show any leniency to the appellant.
Criminal Appeal No. 374-DB of 1997 is dismissed.
Criminal Revision No. 525 of 1997
As the State has not filed any appeal against the acquittal of Smt. Parmeshwari, Hans Raj, Subhash Chand and Som Nath, criminal revision is also dismissed.
