RAJINDER Vs STATE OF HARYANA
Bench: SUDHANSU JYOTI MUKHOPADHAYA,N.V. RAMANA
Case number: Crl.A. No.-000799-000799 / 2011
Diary number: 34563 / 2010
Advocates: SANJAY JAIN Vs
KAMAL MOHAN GUPTA
Page 1
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.799 OF 2011
RAJINDER KUMAR … APPELLANT
VERSUS
STATE OF HARYANA … RESPONDENT
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA,J
This appeal is directed against the judgment dated 1st
September, 2010 passed by the High Court of Punjab & Haryana,
Chandigarh in Criminal Appeal No.238-SB of 2002 alongwith
another case. By the impugned judgment, the High Court
dismissed the appeal preferred by the accused-appellant and
affirmed the order of conviction and sentence passed by the
Trial Court u/s 304B of Indian Penal Code (‘IPC’ for short).
2. The case of the prosecution as noticed by the Trial Court is as follows:
Raj Rani, youngest sister of complainant Ganpat Rai was
married with accused Rajinder Kumar on 10th May, 1996 as per
Hindu rites. At the time of marriage, the complainant had
given handsome dowry and spent a sum of Rs.2,25,000/-. When
Page 2
2
Raj Rani went to her in-laws second time, her husband-
Rajinder, mother-in-law Darshna Devi, sisters-in-law Murti and
Chirya and brother-in-law Binder started taunting and
harassing her. On getting information, complainant Ganpat Rai
alongwith his brothers Ghansham and Hari Chand came to village
Dharsul and advised the accused not to harass Raj Rani. On
this, accused persons stated that they will behave in this
very manner and if they want to take away Raj Rani, they
should get divorce. After that also, they continued to harass
Raj Rani in the same manner. Again complainant Ganpat Rai
along with Balak Ram went to the in-laws of Raj Rani and on
21st October, 1996 on the festival of Dushera Raj Rani was
brought to complainant’s house. At that time, accused-Rajinder
and his family members asked Raj Rani that she should bring
Rs.20,000/- while coming back, otherwise it will not be good.
On 28th October, 1996 Chanan Ram uncle of Rajinder and Binder
came to village Chatha Nanhera at the house of the complainant
along with customary gifts on the festival of Karwa Chauth.
He stayed there for two days. On 30th October, 1996 i.e. one
day before the occurrence, Raj Rani was brought back to her
matrimonial house at Dharsul. Hari Chand brother of the
complainant and Gurmel Singh also came along with her. Raj
Rani told Hari Chand that her husband and in-laws had demanded
Rs.20,000/- and since the same has not been paid, they
(accused) will kill her once Hari Chand and Gurmel Singh leave
the place On this Hari Chand assured her that they
Page 3
3
will come back after 2/3 days and pay the money and returned
to the village of the complainant alongwith Gurmel Singh. On
31st October, 1996 at about 6.00 AM, Tek Chand son of Krishan,
resident of village Kulan came to the house of the complainant
and told that Raj Rani has been murdered on the night
intervening 30/31st October, 1996 by Rajinder, Binder her
mother-in-law Darshna and sisters-in-law Murti and Chirya on
account of bringing less dowry. On this information,
complainant, his brother Hari Chand and Sukhpal Bansal reached
village Dharsul Kalan and saw the dead body of Raj Rani was
lying on a cot in Chubara.
On the statement of complainant Ganpat Rai FIR (Ex.PA/1)
was registered and investigation was started by Chander Singh,
Sub Inspector. Dr. P.L. Verma (PW-6) conducted the post
mortem. After receiving report of the Chemical Examiner the
cause of death was shown to be poisoning due to consumption of
aluminium phosphide.
The appellant was charge-sheeted alongwith his mother and
sisters for the offence u/s 498A and 304B IPC to which they
pleaded not guilty and claimed trial. The prosecution produced
14 witnesses including Ganpat Rai (PW-7) complainant and
Harichand (PW-13). Other witnesses are Ishwar Singh-ASI(PW-1),
Mahipal-Constable (PW-2), Girish Kumar-Draftsman(PW-3), Wazir
Singh-SI(PW-4), Jai Prakash-Constable(PW-5), Dr. P.L. Verma-
Medical Officer(PW-6), PW-8 to 9 and 11-Constables; Rajender
Kumar-Photographer(PW-10), Jai Chand Shastri who performed
Page 4
4
marriage ceremonies of deceased with accused-appellant (PW-12)
and Chander Singh-SI(PW-14). On behalf of the defence three
witnesses i.e. Dr. Jasbeer Singh-(DW-1), Santosh-(DW-2) and
Chajju Ram-(DW-3) were produced.
The Trial Court by its judgment dated 22nd January, 2002
convicted the appellant u/s 498A and 304B IPC and acquitted
other accused. For the offence u/s 304B IPC the appellant was
sentenced to undergo rigorous imprisonment for seven years and
for the offence u/s 498A he was sentenced to undergo rigorous
imprisonment for two years along with a fine of Rs.5,000/-.
Both the sentences awarded were ordered to run concurrently.
3. On appeal the High Court by impugned judgment partly allowed the same and the conviction and sentence of the
appellant u/s 498A IPC was set aside while upholding
conviction and sentence u/s 304B IPC.
4. The main argument of the appellant is that the death of deceased-Raj Rani is a natural death and that the entire
evidence on record believes the version of death by Aluminium
Phosphide (AIP) Poisoning. To support his case it was pointed
out that Dr. P.L. Verma (PW-6) who conducted post mortem
stated in his testimony that if the report of the Forensic
Science Laboratory regarding the presence of poison would have
been negative then the Board would have concluded it to be a
case of natural death. It was submitted that in normal
circumstances in a dead body there is always a possibility of
Page 5
5
presence of poisonous substance like aluminium phosphide and
therefore no definite conclusion can be derived at that the
deceased-Raj Rani died as a result of poisoning due to
consumption of aluminium phosphide.
5. Further, according to the learned counsel for the appellant-accused, evidence of Ganpat Rai (PW-7), complainant
and Harichand (PW-13) who were the brothers of the deceased
are unreliable as they are interested witnesses. All other
independent witnesses from village have deposed in favour of
the appellant, stating that the deceased was never treated in
cruel manner nor any demand of dowry was made. An application
had also been written and signed by more than 20 villagers
stating about the innocence of the appellant and his family.
6. In normal circumstances, in the Indian Society demand for dowry or harassment for the same takes place within four
corners of the house. Even the parents or relatives of the
girl will not be aware of these, unless they are informed
either by the girl herself or demand is made directly to them.
The Police Officials or others cannot depose anything about
the harassment in connection with demand of dowry in the
absence of any complaint or statement made by witness u/s 161
Cr.P.C. Seldom, the villagers-neighbours may come to know of
the same. In this background, statement of family members of
the deceased-lady cannot be discarded on the ground that they
are relatives and are interested witnesses, till a
Page 6
6
contradiction is shown in their deposition or cross-
examination.
7. The complainant-Ganpat Rai(PW-7) brother of the deceased- Raj Rani stated that the accused harassed the deceased since
her marriage and he always taunted her for bring less number
of sarees and inadequate money. The accused also had demanded
Rs.20,000/- from the deceased. On knowing this, complainant
(PW-7) along with his brother went to the house of the
appellant-accused and tried to persuade the appellant to stop
harassing their sister. However, the appellant and his family
members asked them to take away their sister with them. On 21st
October, 1996, complainant (PW-7) took Raj Rani to his house
at Chattha Nanhera. On 28th October, 1996, Chanan Ram, the
elder brother of the father of appellant-Rajinder came to the
complainant’s house with the customary gifts of Karwa Choth
for Raj Rani and stayed there for two days. On 30th October,
1996, Hari Chand (PW-13) younger brother of the complainant
(PW-7) and Gurmel Singh left Raj Rani in her matrimonial home.
While Hari Chand(PW-13) and Gurmel Singh were leaving the
house they were told by Raj Rani that since they had not paid
Rs.20,000/- to the accused, he would kill her. Hari Chand told
Raj Rani that they would make the payment within two or three
days. On 31st October, 1996, the complainant (PW-7) received
information that his sister had died on previous night. When
the complainant (PW-7) went to the house of the appellant, he
found his sister dead lying on the Chobara. There was froth
Page 7
7
coming out of the mouth of the deceased and a piece of brick
was lying there. The police found some broken bangles lying
near the death body. After leaving Hari Chand and Sukhpal
Bansal near the dead body he reported the matter to the
Police.
8. Hari Chand (PW-13) has corroborated the statement made by the complainant (PW-7). No inconsistency is found in their
statements. Defence also could not make out anything to
disprove the same during their cross-examinations. From the
statements of the complainant (PW-7) and Hari Chand (PW-13),
we find that the deceased-Raj Rani had been harassed on
account of demand of dowry soon before her death.
9. Dr. P.L. Verma (PW-6) has conducted the post mortem on the dead body of deceased Raj Rani. He deposed that the eyes
and mouth of the deceased were semi open. After receiving the
report of the Chemical Examiner, he stated that the cause of
death of deceased Raj Rani was a result of poisoning due to
consumption of aluminium phosphide. Dr. P.L. Verma(PW-6) and
the Chemical Examiner who are experts in the field have not
stated that the death was in the normal course or aluminium
phosphide can be automatically generated in the dead body.
10. Section 304-B of IPC relates to dowry death. For the purpose of the said Section, a presumption as to dowry death
can be raised only on proof of the following essentials.
Page 8
8
(a) the death of woman has been caused by burns or bodily injury or has occurred otherwise than under normal circumstances.
(b) The said death has occurred within seven years of her marriage
(c) The woman was subjected to cruelty or harassment by her husband or his relatives.
(d) Such cruelty or harassment was for, or in connection with, any demand for dowry and
(e) She was meted out with such cruelty or harassment soon before her death.
In this connection, we may refer to this Court decision
in Kaliaperumal vs. State of Tamil Nadu (2004) 9 SCC 157.
11. In the case of Hira Lal & Others Vs. State (Govt. of
NCT), Delhi, (2003) 8 SCC 80, this Court analyzed Section
304B IPC and Section 113-B of the Indian Evidence Act and
made the following observations:
“8. Section 304-B IPC which deals with dowry death, reads as follows:
“304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called ‘dowry death’, and such husband or relative shall be deemed to have caused her death.
Explanation.—For the purpose of this sub- section, ‘dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”
The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances
Page 9
9
within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:
(i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.
(ii) Such a death should have occurred within seven years of her marriage.
(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
(iv) Such cruelty or harassment should be for or in connection with demand of dowry.
(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304- B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows:
“113-B. Presumption as to dowry death.—When the question is whether a person has committed the dowry death of 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.
Explanation.—For the purposes of this section, ‘dowry death’ shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).”
The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10- 8-1988 on “Dowry Deaths and Law Reform”. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of “dowry death” in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the
Page 10
10
essential ingredients, amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials:
(1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.)
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for or in connection with any demand for dowry.
(4) Such cruelty or harassment was soon before her death.”
12. In the present case the death of Raj Rani occurred within seven years of her marriage. It is not disputed that her death
is not under normal circumstances. Statements of the
complainant (PW-7) and Hari Chand (PW-13) are specific about
the harassment of the deceased-Raj Rani by the accused in
connection with the demand of dowry. It is also evident from
the evidence on record that she was meted out with such
harassment soon before her death.
13. In view of the evidence on record, as discussed above, we hold that the prosecution was successful in proving the
ingredients of Section 304-B IPC. The Trial Court rightly
presumed that the accused has caused the dowry death of the
victim and the High Court rightly upheld the conviction and
sentence.
Page 11
11
14. We find no merit in this appeal and the same is accordingly dismissed. The appellant is directed to be taken
into custody forthwith to serve remainder period of sentence.
………………………………………….J. (SUDHANSU JYOTI MUKHOPADHAYA)
………………………………………….J. (N.V. RAMANA)
NEW DELHI;
JANUARY 14, 2015.