Upender and another v. State of Haryana

at 1.20 p.m., on the basis of which, FIR No. 248 dated 24.7.2001 under Sections 498-A and 304-B IPC was registered at Police Station Mujessar, at 1.30 p.m. During investigation of the case, the dowry articles were taken into possession from the house of the appellants by ASI Surender Singh. The case property was deposited by the Investigating Officer Crl. Appeal No. 2015-SB of 2002 -3- with the MHC and statements of witnesses were recorded. Upon presentation of the final report under Section 173 Cr.P.C., the appellants were charge sheeted for the commission of offences punishable under Sections 498-A and 304-B IPC, to which they pleaded not guilty and claimed trial. In support of its case, the prosecution had examined PW1 Om Parkash, PW2 HC Tara Chand, PW3 Chandan Singh complainant, PW4 Smt. Jamuna Devi, PW5 Dr. Meenu Kapoor, PW6 Ashok Kumar, Draftsman, PW7 Rajender Singh and PW8 ASI Surender Singh. When examined under Section 313 Cr.P.C., the appellants denied the allegations of the prosecution and pleaded that they resided separately and a false case was got registered against them. The witnesses had deposed falsely. In defence, they examined DW1 Umesh Sethi and DW2 Kulwant Singh. After hearing learned counsel for the parties and going through the evidence available on the record, the trial court believed the prosecution case and, accordingly, convicted the appellants for offence under Section 304-B IPC and sentenced them, as mentioned above. I have heard learned counsel for the parties and scanned the evidence with their able assistance. From the testimony of PW5 Dr. Meenu Kapoor, who had conducted post-mortem on the dead body of Usha on 24.7.2001, it is Crl. Appeal No. 2015-SB of 2002 -4- made out that no mark of external injury was found. Viscera and stomach were made into parcels and sent for Chemical examination. On the basis of report Ex. PH from the Chemical Examiner, she opined that the death was due to poisoning of organophosphorous. As such, it stands established that the death of Usha had occurred otherwise than under normal circumstances. Deceased Usha was married to appellant Upendar on

18.2.2001 according to Hindu rites and ceremonies. On 23.7.2001, i.e. within six months of the marriage of Usha with Upendar, her parents received a telephonic call at Jhansi from appellant Upendar that Usha had died. On hearing the same, complainant Chandan Singh, his wife Jamuna Devi and son Rajender Singh reached the house of the appellant on 24.7.2011. On the same day, complainant Chandan Singh made statement Ex. PB before ASI Surender Singh on the basis of which FIR No. 248 dated 24.7.2001 was registered at Police Station Mujessar. Therefore, it also stands established that the death of Usha had occurred within 7 years of her marriage. As regards the requirement of law that soon before her death, the deceased was subjected to cruelty or harassment by her husband or any relative of her husband for/or in connection with any demand of dowry and such death to be called dowry death, there is testimony of PW3 Chandan Singh, PW4 Smt. Jamuna Devi and PW7 Rajender Singh, who had testified that soon after the marriage, the Crl. Appeal No. 2015-SB of 2002 -5- appellants started demanding dowry and when their demand was not met, Usha was treated with cruelty. They also demanded a sum of Rs.50,000/- and threatened that if she failed to bring the said amount, she would be given beatings. The witnesses also deposed that when Usha visited their house, she informed them about her plight of being treated with cruelty on account of non-fulfillment of the demand for dowry by the appellants. The parents of Usha had requested the appellants on 2/3 occasions not to treat her with cruelty but it had no effect upon them and they persisted in their demand for Rs. 50,000/-. On 22.7.2001 also the deceased had called her father on telephone to apprise him that she was being ill-treated and harassed by the appellants for not fulfilling their demand. It is true that PW3 Chandan Singh deposed in his cross-examination that he did not recollect if he had stated in his statement Ex. PB before the police about his making a telephone call to Usha on 22.7.2001. However, that by itself is not sufficient to discredit his testimony, more-so when PW4 Smt. Jamuna Devi testified in her cross-examination that on 22.7.2001 her daughter had told her that her in-laws were very angry for not fulfilling their demand of Rs. 50,000/-. Therefore, it is proved on the record that soon before her death Usha was subjected to cruelty and harassment by her husband and husband's younger brother for the reason that their demand for Rs. 50,000/- was not met by her parents. In view of the above, all the ingredients of the offence Crl. Appeal No. 2015-SB of 2002 -6- under Section 304-B IPC are made out. In order to rebut the presumption of having caused dowry death, the appellants have relied upon the testimonies of DW1 Umesh Sethi and DW2 Kulwant Singh. Both of them deposed that they resided in the same building in which the appellants resided on the ground floor. They had attended the marriage of appellant-Upendar with deceased Usha. Neither Upendar nor his younger brother Arjun had subjected Usha to cruelty nor demanded any dowry from her. However, their testimonies do not inspire confidence being close neighbour of Upendar and Arjun. Their sympathies lied with them and not with the parents of the deceased. Both of them admitted in their cross-examination that they did not know the names of the father or brother of the deceased. Possibility cannot be ruled out that these two witnesses were introduced by the appellants so as to help them out. The defence has made an attempt to show that soon before her death, Usha was not given any beatings by the appellants. In this regard, reference has been made to the post-mortem report where it was mentioned that no external mark of injury was found present on the dead body of Usha. However, it may be noticed that the beatings given by the appellants would not have left any mark on the body of Usha. Such like beatings in matrimonial life would be giving of slaps or fist blows and not an assault with any weapon or any article available in the household. These slaps or fists generally do not leave any mark for Crl. Appeal No. 2015-SB of 2002 -7- sufficient period of time so that it may be noticed at the time of post- mortem on the dead body. Even otherwise, it is the case of the prosecution that Usha had died at about 7.30 p.m. on 23.7.2001. Immediately, thereafter, the parents and the brother of deceased Usha had left Jhansi and reached the house of the appellants in the morning of

24.7.2001. After the registration of the FIR, the dead body of Usha was subjected to post-mortem on 24.7.2001 at 4.20 p.m. By that time, any mark of injury as a result of the beatings given by the appellants would have disappeared and, therefore, no benefit can be extended to the appellants on account of the fact that in the post-mortem no mark of external injury was noticed on the dead body. In view of the above, this Court is of the considered view that the prosecution has been able to establish its case for the offence under Section 304-B IPC. However, at the same time, the Court is inclined to extend the benefit of doubt to appellant-Arjun, who is younger brother of the husband of the deceased. At the time of the incident, said Arjun was a student. Therefore, he would not have been instrumental in joining his elder brother Upendar in subjecting Usha with cruelty and harassment in connection with dowry. Though, according to the appellants in their statements under Section 313 Cr.P.C., they had been residing separately yet both DW1 Umesh Sethi and DW2 Kulwant Singh admitted in their cross-examination that both the appellants resided jointly with their mother. Apparently, for the Crl. Appeal No. 2015-SB of 2002 -8- reason that appellant Arjun had been residing in the same house in which appellant Upendar and his deceased wife resided that the prosecution spread the net slightly wide by roping him also as an accused. Under these circumstances, giving of benefit of doubt to appellant Arjun would be in order. As regards the sentence of ten years imposed upon appellant Upendar, the same is commensurate with the crime committed by him, more-so, when the death of Usha had occurred within six months of her marriage with him. In view of the above, the conviction and sentence of appellant Arjun is set-aside and he is acquitted of the charge under Section 304-B IPC. The conviction and sentence of imprisonment of appellant Upendar as well as of fine alongwith its default clause, is upheld. The appeal is, accordingly, disposed of. January 29, 2010 ajay-1 ( T.P.S. MANN ) JUDGE