Criminal Appeal No.1602-SB of 2002 v. State of Haryana

Judgment

1. This appeal has been filed against the judgment/order dated

30.9.2002/1.10.2002 whereby the learned Additional Sessions Judge, Sirsa (hereinafter referred as “Trial Court”) convicted the appellant for the offence under Section 306 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of seven years and also to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months.

2. The case of the prosecution, as projected from paras 2 to 7 of the

Trial Court judgment, is that: “On receiving a memo from Dr. S.K. Mohta in respect of the admission of Poonam wife of Ved Prakash in his Criminal Appeal No.1602-SB of 2002 2 clinic as a suspected case of poisoning by consuming sulphas tablets, ASI Harbans Lal rushed to the Nursing Home at Rania and sent a written request to the Naib Tehsildar and D.D.P.O. to visit the clinic but neither of them was available on the station on that day. The Investigating Officer then sought the opinion of the attending Physician and recorded the statement of the patient in the presence of Dr. K.B. Kamboj, Dr. S.K. Mohta and Shri Som Jain. The patient allegedly informed the policeman and the doctors present there that she was married with Ved Parkash Sunar on March 20, 1998. She had absolutely no grievance against any member of the nuptial family. She mistook the tablets consumed by her as remedy for headache. She started vomiting immediately thereafter. Her husband and her mother-in-law then shifted her to the clinic of Dr.S.K. Mohta. The alleged dying declaration was signed by Poonam,. Dr. K.B. Kamboj, Dr. S.K. Mohta and Shri Som Jain, all residents of the town of Rania. The statement was then attested by ASI Harbans Lal in their presence. Dr. S.K. Mohta immediately referred the patient to the General Hospital, Sirsa for more specialised treatment. Daily diary report No.10 dated 28.4.1998 was then recorded at Police Station, Rania on the basis of the dying declaration referred to above. A VT message was flashed by the SHO of Police Station, City Sirsa to the Police Station, Rania at 11.55 AM about the death of Poonam. ASI Harbans Lal again rushed to Criminal Appeal No.1602-SB of 2002 3 Civil Hospital, Sirsa with some policemen under his command where Shri Bhim Sain, the father of the deceased, lodged report with him on the basis of which the first information report was recorded at Police Station Rania. Shri Bhim Sain stated before ASI Harbans Lal that deceased Poonam was his daughter. She was married with accused Ved Prakash on March 20, 1998. She was barely 20 years of age at the time of her marriage. He had spent beyond his means on the marriage of his daughter. However, Poonam confided in him that the members of the family of her in-laws were not happy with the dowry. Deceased Poonam then delivered a letter to her father, inter alia, mentioning that instead of the television set and the cooler, it would have been appropriate to gift a scooter. There was demand for some more suits and the gifts received at the time of marriage. Poonam did not visit them thereafter. He decided to visit his daughter at her nuptial home where she delivered to him yet another letter in which she had written about the pressures brought on her for writing about her own moral character. However, he consoled and counselled his daughter and returned. It was further alleged by Bhim Sain that his daughter visited him on April 23, 1998 and informed him that her husband, accused Ved Prakash had forced her to write some objectionable material about her moral character about which her mother-in-law, namely, Radha Rani, father-in-law, namely, Kishan Lal, 'Jeth', namely, Om Parkash and 'Nanad', namely Seema Rani were aware. After Criminal Appeal No.1602-SB of 2002 4 disclosing all those facts to her sire, Poonam returned to her nuptial home at Rania. That on 28.4.1998, the complainant received a telephone call from Shri Om Parkash of Rania at about 9.15 AM that Poonam was complaining of stomach-ache. He rushed to Rania along with his wife where they met accused Om Parkash at the local bus stop who informed them that Poonam was better and was in Civil Hospital, Sirsa. They then left for Sirsa by car but they met Ved Prakash and Kishan Lal on the way who were travelling in a jeep. They informed him and his wife that Poonam had expired. The parents of the deceased then rushed to the Civil Hospital at Sirsa and lodged report with the police. The complainant alleged that Poonam had been probably poisoned to death by her husband Ved Prakash, his parents, his brother Om Parkash and his sister Seema. The photo copies of the letter delivered by Poonam to her father were also handed over to the police for further action in the matter. A case for the alleged commission of an offence punishable under Section 304-B of the Indian Penal Code was registered and the matter was investigated. A Board of doctors conducted autopsy on the dead body of deceased Poonam after 5 PM on April 28, 1998 which suspected it to be a case of death by poisoning. Therefore, the relevant organs of the body were sent for chemical analysis to the laboratory. After receiving the report of the Chemical Examiner, the Board of doctors declared that the death was Criminal Appeal No.1602-SB of 2002 5 caused by aluminum phosphide poisoning.”

3. The police arrested the husband, the parents-in-law, the brother-in-law and the sister-in-law of the deceased and sent them up before the court to face trial. The Trial Court after supplying copies of the challan as envisaged under Section 207 of the Code of Criminal Procedure, charge sheeted the accused for the offences punishable under Sections 498-A and 304-B of the Indian Penal Code to which the accused-appellant pleaded not guilty and claimed trial.

4. At the trial, the prosecution, in order to prove its case examined as many as eleven witnesses, namely, Gurdial Singh, PW1; Bhim Sain, PW2; Dr. J.K. Bishnoi, PW-3; SI Hans Raj, PW-4; Sukhdev Singh, PW5; Constable Dharam Pal, PW6; Rameshwar Kumar, PW-7; Constable Satish Kumar, PW-8; Head Constable Satpal Singh, PW-9; Head Constable Ajit Singh, PW-10 and Jitender Kumar PW-11.

5. After closure of prosecution evidence, statement of the accused was recorded. He controverted the allegations of the prosecution and claimed innocence on the strength of a ground that Poonam had died barely within six weeks of her marriage. He pleaded false implication and submitted that it was an accidental death because Poonam had taken some poisonous substance under mistaken belief as she was under some sort of mental stress because of uncovering her own deeds. Accused Ved Parkash took a plea that he had no ill-will against his wife even after learning her shady past. He further stated that pressure on her mind in that regard proved unbearable for her. He also brought on record that the couple had their separate residence; the kitchen and the business from other members of his family. Criminal Appeal No.1602-SB of 2002 6

6. The accused-appellant produced three witnesses in their defence, namely, Dr. K.B. Kamboj as DW-1, Dr. S.K. Mohta as DW-2 and SI Harbans Lal as DW3 to prove his innocence.

7. The learned Trial Court after hearing the learned counsel for the parties, convicted and sentenced the appellant as indicated in the outset of this judgment. Hence this appeal.

8. The appeal was admitted on 11.10.2002 and sentence of the appellant was suspended vide order dated 14.11.2002.

9. Learned counsel for the appellant does not challenge the judgment and order of the conviction/sentence on merits. However, he prays that a lenient view may be taken in the matter of sentence.

10. The learned counsel appearing for the State has submitted that no leniency should be shown to the appellant since the offence has been proved.

11. The Hon’ble Supreme Court in 2006(4) R.C.R. (Criminal) 645 titled as “R. Soundarajan V. Seed Inspector, Coimbatore and another” observed as under:- “26. We have carefully perused the entire evidence and documents on record and heard the learned counsel for the parties at length. On consideration of the totality of the facts and circumstances of this case, particularly in view of the statement made by the learned counsel for the State, in our considered view, the ends of justice would be met, if the sentence of the appellants is reduced to the period already undergone by them. The appellants were released by this Court during the pendency of these appeals and they are now not required to surrender. The Criminal Appeal No.1602-SB of 2002 7 fine as imposed by the trial Court, if not already paid, would be paid within four weeks from the date of this judgment”

12. In another case titled as “Umrao Singh V. State of Haryana”, 1981 AIR (SC) 1723, the Hon’ble Supreme Court observed as under:- “After hearing counsel for the parties, we are satisfied that this is a case falling under the proviso of Section 16 (1)(a)(i) and therefore, for adequate and special reasons, the sentence lower than the minimum prescribed could be awarded. The High Court itself felt bound to award the minimum sentence but on merits was satisfied that if the legal position warranted the appellant could be given lesser sentence. We are in agreement with the view of the High Court. The appellant/petitioner is aged about 70 and suffering from asthama illness and has a clean past record. Besides, the percentage of deficiency that was noticed in the milk sold by him was 0.4% in the fat contents.

2. Having regard to these facts, the expression of the view of the High Court was justified. We accordingly reduce the sentence of the appellant to the period already undergone. The sentence, of fine is maintained and we are informed that he has already paid the fine. Since he is already on bail, he should be released forthwith.

3. The appeal is disposed of accordingly”.

13. From the record, it is made out that the FIR in the instant case was registered on 28.4.1994. At the time of registration of FIR, the age of the appellant was 30 years. The appellant has suffered protracted trial for Criminal Appeal No.1602-SB of 2002 8 more than 16 years. As per record, the appellant has already undergone 3 years 9 months. He has not misused the concession of bail.

14. For the aforesaid reasons, I am of the considered view that the reduction in sentence/imprisonment to the extent already undergone by the appellant shall meet the ends of justice.

15. Consequently, the conviction of the appellant, is maintained. However, the sentence of rigorous imprisonment is reduced to the one already undergone by him. To assuage the feeling of wrong done by the appellant, the complainant deserves to be compensated. Accordingly, the sentence of fine is enhanced to Rs.50,000/- besides the fine already imposed by the learned Trial Court. He shall deposit this amount before the Chief Judicial Magistrate, Sirsa, within a period of three months from the date of receipt of a certified copy of this order. Out of the enhanced amount of fine of Rs.50,000/-, an amount of Rs.40,000/- shall be paid to the complainant as compensation and remaining amount of Rs.10,000/- shall go to the State as litigation expenses.

16. In case, the appellant fails to comply with the direction of depositing the amount of fine with the Court of learned Chief Judicial Magistrate, Sirsa, within the period stipulated above, this appeal shall be deemed to have been dismissed. The impugned order of sentence stands modified to the extent indicated above.

17. This appeal stands disposed of accordingly. August 05, 2010 SRM ( JITENDRA CHAUHAN ) JUDGE Note: Whether to be referred to reporter ? Yes/No