Jitendra Chauhan, J.@mdashThis order shall dispose of two appeals i.e. Cri. A. No. 1527-SB of 2007 and Cri. A. No. 1074-SB of 2007 as both have arisen out of the common judgment/order dated 14/16-5-2007 passed by the learned Additional Sessions Judge (II), Jind (hereinafter referred as "Trial Court"). However, the facts are being taken from Cri. A. No. 1527-SB of 2007.
2. The present appeals have been filed against the judgment/order dated 14/16-5-2007 passed by the learned Trial Court whereby the accused-Appellants were convicted u/s 304-B read with Section 34 of the Indian Penal Code. Accused-Appellant Shyam Lal was sentenced to undergo rigorous imprisonment for a period of ten years and accused-Appellants Bhateri, Inder, Bhan Singh and Sushil were sentenced to undergo rigorous imprisonment for a period of seven years each.
3. The case of the prosecution, as summed up in para 2 of the judgment of learned trial Court, is that:
On 13-3-2005, a ruqqa regarding dead body of Neelam wife of Shyam Lal, resident of Bhana was received in police station from General Hospital, Narwana through ward servant. ASI Om Prakash along with other police officials reached in Civil Hospital, Narwana. There Jai Bhagwan son of Rati Ram Brahman r/o Badnara met the police party in the ward and he got recorded his statement to the effect that he is resident of abovestated address and is an agriculturist. He is having two sons and a daughter namely Neelam. His daughter was married to Shyam Lal son of Jaila Ram for about 3 1/4 years back and he gave dowry as per his capacity. A male child was born about 6 months back. Complainant has stated in his statement that after one year of marriage, his daughter came to his house and told that her husband, mother-in-law and brothers of mother-in-law namely Inder, Bhan Singh and Sushil son of Inder r/o. village Chausala beat her saying that they want a buffalo. On this, the complainant purchased a buffalo and gave to his daughter. Thereafter, they again started beating her and demanded a motor cycle. When his daughter came to his house two years ago and told about the same but anyhow he sent his daughter back to her matrimonial home. On 9-3-2005, his son Ravinder went to village Bhana to meet his sister, where Neelam told his son Ravinder that accused were giving beatings to her daily and also demanded a sum of Rs. 70,000/- for getting redeemed their mortgaged land and this fact was told to him by his son. On 13-3-2005, at about 5.00 p.m., he was informed on telephone by somebody else from the village of accused that Shyam Lal, his mother Bhateri, maternal uncle of accused Shyam Lal, namely, Inder, Bhan and Sushil son of Inder had sprinkled kerosene upon Neelam and set her on fire. On receiving this information, he, his brother Pushpinder and his son Ravinder reached at village Bhana Brahman, then they came to know that the abovenamed accused persons had taken Neelam for treatment. At about 8.30, the accused persons brought the dead body of Neelam at their house in village Bhana. On seeing them, the accused persons ran away after leaving the dead body of Neelam. They brought the dead body of Neelam to Govt. Hospital, Narwana and he has stated that they are satisfied that the accused have set on fire his daughter Neelam and killed her. As per the statement of the complainant Jai Bhagwan, the accused namely Bhateri and Shyam Lal were booked for commission of offences punishable u/s 304-B/34 of the Indian Penal Code. A ruqa was sent to police station through Constable Shamsher Singh No. 355, on the basis of which, a formal FIR was recorded by Suraj Mal HC. Statements of witnesses u/s 161, Code of Criminal Procedure were recorded. Both the accused were taken into custody and after completion of usual formalities of investigations a challan was prepared and submitted in the Court for trial of the accused.
4. Vide order dated 21-5-2005, accused-Appellants Bhateri Devi and Shyam Lal were charge-sheeted for the offence punishable under Sections 304-B read with Section 34 of the Indian Penal Code to which they pleaded not guilty and claimed trial.
5. When the case was at the stage of prosecution evidence, accused-Appellants Inder Singh, Sushil Kumar and Chander Bhan alias Bhana were summoned u/s 319 of the Code of Criminal Procedure and vide order, dated 28-1-2006, they were charge-sheeted for the offence punishable u/s 304-B read with Section 34 of the Indian Penal Code.
6. In order to prove its case, the prosecution has examined as many as 14 witnesses, viz., complainant-Jai Bhagwan as PW 1: Dr. B. R. Kayat, Medical Officer, General Hospital, Jind as PW 2; Dr. R. K. Singla, Medical Officer, General Hospital, Narwana as PW 3; Head Constable Suraj Mal as PW 4; Kuldeep Gupta, Draftsman as PW 5; S. I Raghbir Singh as PW 6; Constable Mahender Singh as PW 7; EHC Gulab Singh as PW 8; Ravinder son of Jai Bhagwan as PW 9; Constable Rajesh Kumar as PW 10; Head Constable Vijay Kumar as PW 11; Sushil Kumar as PW 12; Head Constable Baljit Singh as PW 13 and ASI Om Parkash as PW 14. Pushpinder, PW, was given up the prosecution being unnecessary.
7. Statements of the accused-Appellants were recorded u/s 313 of the Code of Criminal Procedure in which they denied the allegations of the prosecution and pleaded their false implication. The accused-Appellants examined in their defence Sohan Lal, Superintendent, District Jail, Jind as DW .1, Mr. Manish Kumar as DW 2 and Shri Diwana son of Atma Ram as DW 3.
8. PW 1-Complainant Jai Bhagwan deposed that he was having two sons; and a daughter. His daughter Neelam was married with accused-Appellant Shyam Lal about 3 1/2 years back. PW 1 further stated that he had spent a lot at the time of her marriage according to his capacity but the accused-Appellants were not satisfied with the dowry and they used to give beatings to his daughter Neelam and demanded a buffalo and motorcycle. He meted out the demand of buffalo but could not meet the demand of motorcycle and sent his daughter back to her matrimonial home. PW 1 further deposed that on 9-3-2005, his son Ravinder went to his sister''s home, where she told that the accused-Appellants were giving beatings and also demanded a sum of Rs. 70,000/- for getting redeemed their mortgaged land. He further stated that on 13-3-2005, at about 5.00 p.m., he was telephonically informed by somebody from the village of accused-Appellants that Shyam Lal, his mother Bhateri, Inder, Bhan and Sushil had put kerosene oil upon Neelam and set her on fire. PW 1 further deposed that they went to the house of the accused-Appellants and came to know that Neelam had been shifted to the hospital and later on, they brought the dead body of Neelam to their house.
9. PW 2-Dr. B. R. Kayat, Medical Officer has stated that on 13-3-2005, at 11.40 p.m., he sent ruqa, Exhibit PE, regarding the dead body of Smt. Neelam wife of Shyam Lal, which was brought by Jai Bhagwan son of Rati Ram.
10. PW 3-Dr. R. K. Singla, Medical Officer has deposed that on 14-3-2005, at 10.15 p.m., he conducted the post mortem examination on the dead body of Neelam daughter of Jai Bhagwan. He further deposed that the dead body was brought by Head Constable Baljit Singh and HC Vijay, Police Station Sadar, Narwana and the same was identified by Jai Bhagwan son of Rati Ram and Pushpinder son of Rati Ram. PW 3 also deposed that the cause of death was due to cardiac arrest, due to shock and burning (99%) which were ante mortem in nature and were sufficient to cause death in the ordinary course of nature.
11. PW 4, PW 5, PW 6, PW 7, PW 8, PW 10 and PW 11 are formal witnesses.
12. PW 9-Ravinder has reiterated the version of his father Jai Bhagwan, complainant, of the present case.
13. PW 12-Sushil Kumar has deposed that he had performed the ceremony of Phere between Shy am Lal and Neelam on 10-12-2001 in village Badnara and has identified the photographs of the couple named above.
14. PW 13-H. C. Baljit Singh has deposed that when he was posted at Police Station Sadar, Narwana, he along with ASI Om Parkash and other police officials had gone to General Hospital, Narwana on receipt of ruqa regarding the death of Neelam. He further deposed that when they reached in the emergency ward, Jai Bhagwan, PW 1 was found present near the dead body of Neelam. ASI Om Parkash recorded the statement of complainant Jai Bhagwan and sent the ruqa for registration of FIR through Constable Shamsher Singh. He further deposed that the dead body of Neelam was handed over to him and Vijay Kumar for conducted the post mortem after inquest report and after conducting the post mortem of deceased Neelam, the dead body was handed over to the relatives of the deceased.
15. PW 14-Om Prakash, ASI, the Investigating Officer of the case, has supported the prosecution version and that of Head Constable Baljit Singh and proved the statement of complainant, Exhibit PA. He has stated that on 17-3-2005, he arrested accused-Appellant Shyam Lal at Bus Stand Gurthali. He further deposed that on 19-3-2005, accused-Appellant Bhateri was formally arrested by him and thereafter, he got recovered the dowry articles from the accused-Appellant in the presence of Jai Bhagwan and Ravinder.
16. DW 1-Sohan Lal has brought the summoned record showing the interview of the relatives of the prisoners with them. According to that register, Ravinder son of Jai Bhagwan had come along with three others to meet Appellant-Shyam Lal.
17. DW2-Manish Kumar has deposed that about two years back, at about 4.00 p.m., he learnt that wife of Shyam Lal has set herself ablaze and he, rushed to his house and found that many persons had collected there, but Shyam Lal was not present. Then on the asking of some of the persons, he rushed to the fields of Shyam Lal and saw him watering his wheat crops, and informed about the incident. On this, Shyam Lal came to his house and asked him to inform the parents of his wife. DW 2 had further stated that he informed complainant-Jai Bhagwan on telephone.
18. DW3-Diwana has deposed that he along with Sat Narain, Satbir and Jogi Ram and some other persons had gone to the house of Shyam Lal who was not present there, however, his wife Neelam was present. He further stated that Appellant-Bhateri had told them that wife of Shyam Lal was not providing them food and clothing properly, on which they had asked wife of Shyam Lal to give proper food and clothing to Bhateri who was an old lady. DW 3 also stated that wife of Shyam Lal told that they were being looked after properly by her, and thereafter, they came back and after some time, they learnt that wife of Shyam Lal has set herself ablaze.
19. After hearing the learned Counsel for the parties, the learned Trial Court convicted and sentenced the Appellants as indicated in the outset of this judgment.
20. Hence the present appeals.
21. Cri. Appeal No. 1527-SB of 2007 was admitted on 23-8-2007 and Appellant Bhateri Devi was ordered to be released on bail, vide order dated 18-1-2008, whereas Cri. A. No. 1074-SB of 2007 was admitted on 25-5-2007 and accused-Appellants Inder, Bhan Singh and Sushil were ordered to be released on bail, vide order dated 18-1-2008.
22. Mr. Sudhir Sharma, learned Counsel for the Appellants has contended that there is inordinate and unexplained delay in lodging the FIR and sending the special report to the Illaqa Magistrate. He pointed out that the FIR in this case was lodged after 18 hours and the special report was sent to the Illaqa Magistrate after 30 hours of the occurrence and this interregnum period has-been utilized by the prosecution in fabricating the FIR which is not only ante-timed, but the delay was utilized by the complainant to concoct a totally false version also in implicating the immediate relatives of the Appellant Shyam Lal. Learned Counsel has further argued that there is no specific date or time of the demand of dowry, and that as per the statement of complainant-Bhagwan Singh, PW 1, there are three instances of the alleged demand of dowry, which includes the demand of buffalo after one year of marriage, demand of motor-cycle and cash of Rs. 70,000/- to get redeemed the mortgaged land of the Appellants. Learned Counsel for the Appellants has further argued that there are vital and material improvements in the version of the prosecution i.e. the one given to the police and the other made before the Trial Court while appearing as witness. In order to support this submission, learned Counsel made a reference to the statement of Ravinder Kumar, son of the complainant and brother of deceased Neelam, in which he stated that he had no enmity with the accused-Appellants. Learned Counsel has further argued that the said allegation is totally false as there is nothing on record to establish that the land of the Appellants stood mortgaged. In the statement of PW 9-Ravinder, there is no averment with regard to the demand of motor-cycle. He has further stated that the demand for motorcycle even if it was allegedly made could not have been made by Appellant Bhateri, mother-in-law as she was more than 65 years of age at the time of incident.
23. There is no dying declaration of the deceased in the instant case though She was moved to the hospital by her parents. Learned Counsel has further stated that Appellant Shyam Lal was not present at the time of incident. Learned Counsel has stated that the whole exercise of registration of the case was with an intention to extract money from the Appellants. In this regard, learned Counsel had made a reference to the statement of DW 1 Sohan Lal, who has produced the jail record. In the register maintained by the jail authorities, entry No. 48 shows that the brother of the deceased, Ravinder, came to meet Appellant Shyam Lal to negotiate and compromise the matter on payment of huge amount of money but the said Appellant showed his in ability to make any payment.
24. Ms. Baljit Kaur Mann, learned Counsel (appearing in Cri. A. No. 1074-SB of 2007) has stated that Appellants-Inder and Chander Bhan being maternal uncle and the Appellant Sushil being son of Inder, in no way, could be beneficiary in the matter of demand of dowry allegedly made by Appellants Shyam Lal and Bhateri, husband and mother-in-law of the deceased, respectively. She has further argued that the Appellants are financially well-off, being the commission agents and, thus, there was no occasion for them to raise any demand of dowry. She has further contended that the Appellants Inder, Bhan and Sushil (in Cri. A. No. 1074-SB of 2007) were found innocent during police investigations, but were summoned subsequently u/s 319 of the Code of Criminal Procedure and there is no specific allegation against these Appellants. She has lastly submitted that as these Appellants were living at a quite far-off place from the village of Appellants 1 and 2 Bhateri Devi and Shyam Lal, respectively, (in Cri. A. No. 1527-SB of 2007), therefore, they cannot be expected or linked with the present case, and as such, they have been falsely roped in the instant case being the relatives of Sham Lal and Bhateri Devi.
25. On the other hand, learned State counsel has submitted that the case against the Appellants is fully proved beyond reasonable doubt. He has submitted that after the incident, the Appellants ran away from the spot and the deceased was removed to the Hospital by her father, complainant-Jai Bhagwan, PW 1. No injury was noticed on the person of accused-Appellants which could indicate that the Appellants had tried to save the life of the deceased.
26. I have heard learned Counsel for the parties and gone through the records of the case with their able assistance.
27. In the instant case, the occurrence took place at 5.00 p.m. on 13-3-2005. The FIR was registered on 14-3-2005 at 1.15 p.m. on the statement of complainant-Jai Bhagwan, PW 1. The special report was received by the Illaqa Magistrate at 1.30 p.m. on 15-3-2005. From the above facts, it is made out that there is 18 hours delay in lodging the FIR. Besides this, the special report was delivered to the Illaqa Magistrate after 30 hours.
28. As regard the improvements in the statement of the complainant-Jai Bhagwan, it is apparent that no specific date and year for demand of buffalo, motor-cycle or cash has been given. However, there is no documentary proof with regard to purchase of buffalo allegedly handed over to the accused- Appellants. At the same time, nothing has been brought on record with regard to the land mortgaged by the accused-Appellants for which the alleged demand of Rs. 70,000/- was made. It has come on record that neither there is any letter or dying declaration of the deceased, though, as per the statement of complainant-Jai Bhagwan, the deceased had studied upto the level of middle standard. There are improvements in the statement of the complainant made to the police and deposition made in Court. Similarly, there are material improvements in the statement of Ravinder PW 9, brother of deceased Neelam. It has been further argued that Hon''ble Supreme Court in
2. ...the father and the brother of the deceased have made so many improvements in their testimony from stage to stage that it is difficult to place reliance on their testimony, and ultimately acquitted them of the charges levelled against.
29. As per the statements of Jai Bhagwan, the father and Ravinder, the brother of de- ceased-Neelam, the deceased used to convey her mother Om Pati about the alleged demand and treatment meted out to her at the hands of the Appellants. However, Om Pati had not been cited as a witness. In my considered view, mother of the deceased Om Pati was the most Important and material witness, but she has not been cited as a witness for the reasons best known to the prosecution. From the statement of Sohan Lal, DW 1, Superintendent, District Jail, Jind, it is proved on record that PW 9-Ravinder along with three others had an interview with Shyam Lal in the jail. This fact itself goes to the root of the matter and showed malafide of the complainant-party in falsely prosecuting the Appellants.
30. From the medical report, it is made out that deceased Neelam was removed to the Hospital immediately and was provided medical aid by Appellants 1 and 2. Another material aspect which needs mentioning is that no reference has been made by the complainant in his statement with regard to the demand of dowry at the time of marriage. However, the fact remains that the death of the deceased has taken place in her matrimonial home. As there is no reference of any injury on the person of the accused-Appellants, therefore, it can be said that no effort was made by them to save the deceased at the time of occurrence. Therefore, in the circumstances, the provisions of Section 113 of the Evidence Act would come into play. The onus would, thus, be on the accused-Appellants to explain as, to how the death has occurred.
31. Section 113-B of the Evidence Act reads as follows:
113-B. Presumption as to dowry death--When the question is whether a person has committed the dowry death bf a woman and it is shown that soon before her death such woman had 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.
32. From the evidence on record, it is clear that there are three instances of demand of dowry though there is no specificity with regard to the time of raising the said demands. Besides Appellant Shyam Lal, the other accused-Appellants are not likely to be benefitted from the demand of dowry. The co-accused Bhateri, mother-in-law of the deceased, was 65 years of age at the time of occurrence, therefore, she was not in a position to use motor-cycle. This, the demand of motor-cycle cannot be attributed to her. In the same manner, the Appellants Inder Singh, Chander Bhan, maternal uncles and Sushil being son of Inder Singh, the immediate members of the family, were not the beneficiary of the demand on dowry. In the instant case, only Shyam Lal husband, was the direct beneficiary and words ''soon before'' in Section 113-B of Evidence Act are to be determined depending upon the facts and circumstances in the instant case.
33. As Shyam Lal was the direct beneficiary and death has taken place in the matrimonial home of the deceased, therefore, he cannot escape from his liability of giving explanation as to how the death has occurred. However, Appellant Shyam Lal has undergone two years, five months and 27 days and facing agony of trial for more than last five years, therefore, keeping in view the mitigating circumstances, his sentence is reduced from 10 years to 7 years. Appellant Bhateri Devi, who is stated to be more than 76 years of age, is given the benefit of doubt. However, the other Appellants Inder, Bhan and Sushil being distant relatives and there being no evidence on record that they were beneficiary of demand of dowry and particularly, in view of the fact that they were summoned u/s 319 of the Code of Criminal Procedure, it is held that the case against them is not proved beyond reasonable doubt. Accordingly, they are acquitted of the charges.
34. Appellant Shyam Lal is stated to be on bail. He shall be taken into custody forthwith to suffer the remaining part of his sentence. Bail bonds of other Appellants shall stand discharged.
35. Both the appeals shall stand disposed of accordingly.
36. The misc. applications in both the appeals lying pending shall stand disposed of because the main appeals are disposed of by this judgment.
