CRA No.176-SB of 1999 v. State of Punjab

Judgment

1. This judgment shall dispose of CRA No.176-SB of 1999 and CRR No.852 of 1999 as the same have arisen out of the common judgment and order dated 10.2.1999 passed by the learned Sessions Judge, Patiala

(hereinafter referred to as 'trial Court'). However, the facts are being taken from CRA No.176-SB of 1999. CRA No.176-SB of 1999 and CRR No. 852 of 1999 -2-

2. The present criminal appeal has been preferred by the appellant, named, Mithu Ram, challenging the judgment and order dated 10.2.1999 convicting the accused (herein appellant) for committing the offence under Section 304-B and 498-A of IPC and sentencing him to undergo rigorous imprisonment for a period of 7 years under Section 304-B IPC, and further to undergo rigorous imprisonment for a period of 1 year under Section 498- A of IPC. Both the sentences were ordered to run concurrently.

3. The prosecution story, as narrated in paras 2, 3 and 4 of the impugned judgment, is as under:- “2. Mithu Ram was married to Usha Rani, daughter of Balwant Rai (PW2), a shop-keeper of Hissar in July,

1995. The marriage had been performed by Balwant Rai in accordance with his means and he had given dowry and presents worth Rs.80,000/-. Two months after the marriage, it has been alleged, Mithu Ram and Sarupi Devi started harassing Usha Rani and demanded a scooter. Usha Rani returned to Hissar and informed her father about harassment and maltreatment. Thereafter, Balwant Rai brought Usha Rani to Patran and also called his wife's uncle Rachhpal Chand (PW5) from Dirba, and they both met Mithu Ram and tried to pacify him not to demand the scooter as Balwant Rai had no means having already spent beyond his means at the time of the marriage. On this occasion, Sarupi Devi was also present. Both the accused kept insisting on a scooter. Whereupon Balwant Rai called Hamir Chand from the opposite shop and in his presence handed over Rs.20,000/- to both the accused, one bundle was given to Sarupi Devi and the CRA No.176-SB of 1999 and CRR No. 852 of 1999 -3- other to Mithu Ram. Thereafter, they returned to Hissar. Some time later, Usha Rani was due to have a baby and was sent to Hissar for delivery and Mithu Ram told Balwant Rai that he had brought Usha Rani as he was unable to bear the expenses. Usha Rani gave birth to a son after one and half month and both the accused visited her at Hissar, but came empty handed. One and half month later, Mithu Ram again returned to Hissar and took Usha Rani back with him. At the time of the departure, Balwant Rai gave a gold kara to Mithu Ram for his grandson, and at that time, Mithu Ram had demanded a gold chain. The accused again started maltreating Usha Rani and taunting her and demanded a chain. A month later, Balwant Rai and his brother Gian Chand came to Patran to pacify Mithu Ram and told both the accused that he would give the present as and when he had the means. On December 13, 1996, Balwant Rai had fixed the marriage of his daughter Rajni Devi and invited Mithu Ram and Usha Rani at the marriage. They reached Hissar on the evening of December 12, 1996 and when Mithu Ram saw the dowry which Balwant Rai was going to give to Rajni Devi, he became angry and beat Usha Rani saying that she had been given less dowry than Rajni Devi. Balwant Rai and his brother-in-law Surinder Pal (PW4) of Moonak again pacified Mithu Ram, assuring him that he will fulfill his demand for chain whereupon Mithu Ram and Usha Rani returned to Patran on the evening of December CRA No.176-SB of 1999 and CRR No. 852 of 1999 -4-

15. While leaving, they did not take any sweets or clothes, the customary presents at a marriage.

3. On the following day, i.e. December 16, 1996, Balwant Rai set out from Hissar to deliver the presents to his disgruntled son-in-law and collected Surinder Pal from Moonak. They reached at 10.30 AM. On reaching the house of the accused, they heard sound of shrieks coming from the house. The main door of the house was locked from inside. Balwant Rai knocked the door and both the accused came out and ran away. Balwant Rai and Surinder Pal entered the house and noticed smoke coming from the chobara and when they went to the first floor, they found that Usha Rani had died on account of burns.

4. Surinder Pal was left near the dead body and Balwant Rai set out to report the matter to the police, on the way to Police Station near Patran Cart-stand, he met ASI Gurmit Singh (PW6) and he made his statement to him and signed by him in token of its correctness. The Investigator made his endorsement Ex.PC/1 and sent the statement to Police Station, Patran for registration of the case, on the basis of which formal FIR Ex.PC/1 was recorded by ASI Kuldip Singh. The investigator along with Balwant Rai and other police officials reached the spot, inspected the dead body, prepared in-quest report Ex.PF in the presence of Faquir Chand and Suresh Kumar and recorded their statements. He prepared site plan Ex.PC with correct marginal notes. The Investigator recovered a can, containing about two bottles of Kerosene, its cap and a match-box from the roof of the verandah. CRA No.176-SB of 1999 and CRR No. 852 of 1999 -5- The Investigator also collected some ash and burnt bangles from near the dead body. These articles were put in a parcel and sealed with seal along with a GS partly burnt quilt, mattress and a durrie. These items were taken into possession vide recovery memo Ex.PE attested by Surinder Pal and ASI Pawan Kumar and these items were produced in evidence and exhibited. Can being Ex.P1, bangles pieces Ex.P2, bundle of ash Ex.P3, durrie Ex.P4, quilt Ex.P5 and mattress being Ex.P6. The dead body was sent for post mortem examination through Constable Sukhwinder Singh (PW8) to Civil Hospital, Samana. Dr. Karan Singh (PW1) the Medical Officer, Civil Hospital, Saman & two other officers conducted the post mortem examination on the dead body of Usha Rani on December 17, 1996 at 11.45 AM. The Medical Officers found that the deceased had died due to burn injuries, kerosene smell was present and she was wearing partly burnt clothes which were sticking to her legs. The burns were as follows:- “Burns superficial at some places and deep at other places. About 100% present over the face, trunk, chest, abdomen, legs and back of legs. Inflammatory reaction or redness present. Skin peeled of at places. Signing or burning of hairs of scalp was present. Burns were present over frong and back of abdomen with skin peeled of at places.” In the opinion of the Medical Officer, death had been caused by burns which were 100% and had led to death which were sufficient to cause death. All burns were ante-mortem. The CRA No.176-SB of 1999 and CRR No. 852 of 1999 -6- clothers of the deceased were packed, sealed and along with the copy of the post mortem report Ex.PA and the dead body and police papers handed over to the police. Pictorial diagram of the seats of the injuries is Ex.PA/1. In fact, the post mortem examination had been conducted by a Medical Board consisting of Dr. Karan Singh, Dr. Satish Arora and Dr. Sanjay Goel. C. Sukhwinder Singh handed over the post mortem report and parcel containing the clothes of the deceased Ex.P7 to the Investigator, who took them into possession vide recovery memo Ex.PH. The investigation was handed over to ASI Tarsem Lal (PW9), who on December 24, 1996, took up the investigation and arrested the accused. On search, he prepared search memo Ex.PJ. On conclusion of the trial, challan was prepared by SI Mohinder Singh and the accused sent up for trial”

4. The accused were charge-sheeted under Sections 304-B and 498- A of IPC, to which the accused pleaded not guilty and claimed trial.

5. In order to substantiate the charges against the accused, the prosecution examined Dr. Karan Singh, PW1; Balwant Rai, PW2; Devinder Singh, who testified with regard to the site plan, Ex.PD, as PW3; Surinder Pal, PW4; Rachhpal Chand, PW5; Inspector Gurmit Singh, PW6; C. Satnam Singh, with regard to the delivery of special report to the Magistrate on December 17, 1996 at 3.00 AM as PW7; C. Sukhwinder Singh, PW8 and ASI Tarsem Lal, PW9.

6. In the statement under Section 313 Cr.P.C., the accused denied all the allegations of the prosecution case and circumstances appearing in evidence against him and pleaded false implication in the case. In defence, CRA No.176-SB of 1999 and CRR No. 852 of 1999 -7- the accused examined Dr. Iqbal Singh, DW1, who stated that he had examined Sarupi Devi and found her to be a case of hypertension with angina haemotasis. Sarupi Devi was unable to move about and was admitted on 12.12.1996 in the hospital as an indoor patient and discharged on December 17, 1996. During this period, she remained bed-ridden.

7. The learned trial Court, after hearing both the parties, convicted the accused-appellant, Mithu Ram, under Sections 304-B and 498-A IPC and sentenced him for the term as indicated in para 2 of this judgment, vide judgment and order dated 3.10.2001/5.10.2001, aggrieved against which, the present criminal appeal is preferred which was admitted in this Court on

19.02.1999 and sentence was also suspended on the same day.

8. Learned counsel for the appellant has argued that there is unexplained delay in lodging the FIR in the present case. The occurrence took place on 16.12.1996 at 10.30 AM. The statement of Balwant Rai- complainant (PW2) was recorded at 12.30 AM and on its basis, FIR was registered at Police Station, Patran, at 1.30 AM. The special report (Ex.PC) was delivered at the residence of learned Chief Judicial Magistrate on

17.12.1996 at 3.00 AM. As such, this long delay of more than 12 hours right from the time of occurrence till the delivery of the special report, has not been explained by the prosecution.

9. Learned counsel has further argued that there are material contradictions in the statements of Balwant Rai (PW2) and Surinder Pal (PW4) with regard to their reaching at the place of occurrence. It is pointed out that Balwant Rai stated in his examination-in-chief that he set out from Hissar to deliver the presents and came to Moonak from where he was joined by Surinder Pal (PW4) and both of them reached Patran. However, CRA No.176-SB of 1999 and CRR No. 852 of 1999 -8- in the cross-examination, it has come out saying that he and Surinder Pal, both had left Hissar together at 6.00 AM for Patran, which is supported by the testimony of Surinder Pal (PW4) that both of them had travelled together from Hissar to Patran.

10. Learned counsel for the appellant has further argued that the case of prosecution is not established in view of the testimony of Dr. Karan Singh (PW-1), Medical Officer, who conducted the post mortem examination upon the deceased and made observation to the effect that possibility of Usha Rani-deceased having suffered an accidental fire due to burst of stove, cannot be ruled out. It is further argued that prosecution's case with regard to the actual time of the alleged occurrence, as pointed by PW1 in his cross-examination to the effect that the deceased died at about

10.00/11.00 PM on 15.12.1996, is not established. This material discrepancy in the case of the prosecution clearly belies the truthfulness of the prosecution version.

11. Learned counsel for the State has, however, submitted that there are specific instances of demand of dowry soon after the marriage and the demand continued to be subsisting during the married life. It is established on the basis of evidence adduced on record that the amount of Rs.20,000/- was given to the appellant-Mithu Ram and his mother Sarupi Devi, in the presence of Hamir Chand, who owns a shop opposite the shop of the complainant-Balwant Rai. The demand on the part of the accused-appellant is also proved from the fact that Balwant Rai gave one gold kara to Mithu Ram-appellant for his grandson and at that time also, Mithu Ram demanded one gold chain. Another specific instance dated 13.12.1996 has also come on record when the accused-appellant gave beatings to the deceased on the CRA No.176-SB of 1999 and CRR No. 852 of 1999 -9- ground that less dowry was given to him as compared to what was being given to the younger sister of the deceased, Rajni Devi. The accused- appellant was assured that his demand will also be fulfilled. On that count, the accused along with the deceased left without accepting any customary gifts from his in-laws i.e. the complainant. On 16.12.1996, the deceased, Usha Rani, died.

12. Learned State counsel has also produced custody certificate of the accused-appellant and the same is taken on record.

13. I have heard learned counsel for the parties and perused the record.

14. Admittedly, there is delay in lodging the FIR. There is some discrepancy in the statement of Balwant Rai regarding his arrival at Patran on 16.12.1996 but that is not sufficient to conclude that the earlier part of his statement pertaining to the married life of his daughter and accused- Mithu Ram can be ignored. There are specific instances of harassment and cruelty relating to dowry demands made by the accused, which are very material in the instant case. Balwant Rai, being the father of the deceased, is the best person to narrate the history of harassment and cruelty meted-out to his daughter-Usha Rani. The incidents of demand of a scooter and demand/payment of Rs.20,000/- in the presence of Hamir Chand, clearly establish the greed of the accused/appellant-Mithu Ram.

15. Further, the demand of gold chain and his conduct in the presence of family members of the complainant-Balwant Rain, at the time of marriage of his younger daughter also proves his greed for dowry. Grouse of non- fulfillment of his demands remained in his mind which erupted when the accused-appellant saw the dowry articles being given to Rajni Devi, the CRA No.176-SB of 1999 and CRR No. 852 of 1999 -10- younger sister of Usha Rani-deceased, at the time of her marriage.

16. The death of Usha Rani has taken place under very mysterious circumstances within 7 years of her marriage. In the instant case, there is sufficient evidence on record to the effect that immediately before her death, she had been subjected to harassment and cruelty by the accused-appellant on account of demand of dowry. In this situation, the presumption under Section 113(b) of the Indian Evidence Act also comes into play.

17. In the instant case, death has taken place at the house of appellant. During the spot inspection, various articles viz. kerosene cane with cap containing two bottles of kerosene and match box from the roof of the verandah and other materials like burnt quilt, mattresses and durrie and pieces of burnt bangles were recovered and the same were taken into possession vide memo Ex.PE. This recovery confirms the fact that Usha Rani died of immolation with kerosene oil on the morning of December 16 in her matrimonial house at Patran. In the port-mortem report, it has been noticed that the deceased had suffered 100% burns all over her body. The presence of kerosene smell in the body was also confirmed by PW1-Dr. Karan Singh who conducted the post-mortem examination.

18. The sequence of events has clearly established the case of the prosecution. It is conclusively proved that the deceased was subjected to harassment and cruelty in relation to demand of dowry. Learned counsel for appellant has neither pointed out any perversity in the findings recorded by the learned Trial Court nor she has argued that the view taken by the learned Trial Court is not a possible view, in the facts and circumstances of the present case. When two views are possible, in my considered opinion, the view taken by the learned Trial Court, which has the advantage of recording CRA No.176-SB of 1999 and CRR No. 852 of 1999 -11- evidence, should not be substituted with another possible view.

19. In view of the above, the present appeal is dismissed. The judgment and order dated 10.02.1999 passed by the learned trial Court is maintained.

20. The accused-appellant is on bail. He be taken into custody forthwith to suffer the remaining part of his sentence awarded by the learned Trial Court.

21. Criminal Revision No.852 of 1999 has been preferred against acquittal of accused-Sarupi Devi. Since no perversity in the findings of the learned Trial Court could be pointed out, therefore, the revision petition also fails.

22. Accordingly, the revision petition also stands dismissed.

19.07.2010 atulsethi ( JITENDRA CHAUHAN ) JUDGE Note: Whether to be referred to reporter ? Yes/No