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GULAB SINGH & ORS versus STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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Gulab Singh & Ors v. State of Haryana - CRA-319-db-2004 [2006] RD-P&H 3404 (24 May 2006)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Criminal Appeal No. 319-DB of 2004

Date of decision:30.5.2006

Gulab Singh and others ..Appellants

Versus

State of Haryana ...Respondent

CORAM: HON'BLE MR.JUSTICE AMAR DUTT
HON'BLE MR.JUSTICE A.N.JINDAL

Present: Mr.H.S.Gill, Senior Advocate assisted by Mr.Vivek Goel, Advocate for the appellants.

Mr.B.S.Rana, Senior Deputy Advocate General, Haryana.

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JUDGMENT

Amar Dutt, J.

Gulab Singh, his son Manoj and wife Sunder Devi have filed the present appeal to challenge the conviction and sentence imposed upon them under Sections 498-A and 304-B read with Section 34 IPC by the Additional Sessions Judge, Rohtak on 6/9.3.2004.

Briefly stated, the facts of the prosecution case as brought out in the testimony of its witnesses are that on 15.3.2003 Om Parkash PW5 went to Police Station City, Rohtak and lodged an FIR asserting that he is an Ex-serviceman and has one son and six daughters. His daughter Suman was married with appellant-Manoj on 29.6.2002 and at the time of marriage, Om Parkash had given dowry beyond his reach. The in-laws of Suman, according to him, had started harassing her for bringing more dowry and on account of this he had apprised the apepllants that he had ***

already spent more than his capacity on the dowry given to Manoj. Inspite of this, demands for fridge, colour T.V. and scooter etc. persisted and Suman had told him about the harassment that was being faced by her on this account. He further stated that he had received a telephonic message from one Balraj son of Bhim Singh about Suman having committed suicide on account of the harassment by the appellants and on going to the house of in-laws of his daughter Suman, he found the dead body lying in a room. This statement was reduced into writing which is Ex.PE and on its basis formal FIR Ex.PE/1 was registered in Police Station City, Rohtak. The Sub Inspector had then moved to the house of the appellants, got the dead body photographed, prepared inquest report and forwarded the dead body for having post-mortem conducted thereon. On 17.3.2003 the investigation of the case was handed over to ASI Ram Kishan PW9, who arrested Gulab Singh, Sunder Devi and Manoj on 22.3.2003. During interrogation, Manoj had made a disclosure statement Ex. PG to the effect that he had removed the scarf/chuni from the neck of Suman and concealed the same under the clothes in the adjacent room of which none else was having a knowledge and he could get the same recovered. Thereafter, he led the police party to that place and got recovered scarf/chuni, which was taken into possession through recovery memo Ex.PG/1. Rough site plan ***

Ex.PG/2 of the place of recovery was got prepared. Scaled site plan Ex.PD was also got prepared. During the course of investigation, the Investigating Officer recorded the statements of witnesses.

On completion of the investigation, a challan was presented against the appellants before the Illaqa Magistrate, who committed the same to the Court of Sessions for trial as offences disclosed therein were exclusively triable by that Court.

On going through the papers sent up with the challan, the trial Court found that prima facie a case was made out against the appellants under Sections 498-A and 304-B read with Section 34 IPC and, accordingly, framed the charge under those Sections and when the appellants pleaded not guilty to the charge, the prosecution was called upon to lead its evidence.

To bring home the charge, the prosecution examined HC Ram Kumar as PW1, EHC Jagbir Singh as PW2, Constable Sumit Kumar as PW3, SI Patanjali Kumar as PW4, Om Parkash as PW5, Satpal as PW6, Dr.S.P.Sharma as PW7, Constable Rajbir Singh as PW8, ASI Ram Kishan as PW9, Sant Lal as PW10 and SI Ishwar Singh as PW11.

After completion of the prosecution evidence, when the incriminating circumstances were put to the ***

appellants, they denied all of them and appellant-Manoj asserted that:-

"I am innocent. True facts are that on 13.3.2003, Virender, brother-in-law (Dewar) of Phooli d/o Randhir, real brother of Om Parkash, my father-in-law came to my shop and told his relation with Phooli, counsin sister of my wife and told that he wanted to see Suman. I took him to my house and asked Suman to prepare tea and I went to bring some etables. When I came back, I saw both Suman and Virender in an objectionable position and I snubbed Suman. Virender went away. I also told Suman that I will disclose this fact to your father. Next day, as usual, I went to my shop and when I came to my house for breakfast, I found Suman dead. I immediately called my father and informed my in-laws on telephone.

Randhir also came alongwith Om Parkash and when they were informed about the visit of Virender, he rebuked his father that Virender is responsible for the death of Suman. I or my parents never demanded any dowry from Suman nor any of us has harassed her at any time for or in connection with demand of dowry. Suresh s/o Kishori Lal, r/o Rohtak was instrumental in the marriage, my mother has gone to her parental village Imlota. Later on, on the instigation of brother of Om Parkash, Ram ***

Mehar the present false case was registered." Appellants Sunder Devi and Gulab Singh, mother and father of appellant Manoj also took the similar stand.

In defence, appellants examined Suresh Kumar as DW1 and Randhir Singh as DW2. Suresh Kumar was examined to prove that there was no demand for more dowry and he also deposed about what is alleged to have happened on 14.3.2003 when Manoj had told him about the incident that one boy known as Virender, Dewar of Suman's sister Phooli had come to meet Suman and when Manoj had gone to bring some etables on return he found Suman and Virender in objectionable position and he had reprimanded them. Manoj threatened to inform about this to her parents. He also took the stand that parents of Suman had been informed telephonically by Manoj about the death and Om Parkash had told his brother Randhir alias Dheera that due to his relative Virender, Suman was defamed in the village and now that Virender had again arrived. He had become the cause of death of Suman. DW2 Randhir Singh deposed about what according to him was the cause of death of Suman. He too attributed the death to the incident in which some boy had come to meet her at the house.

After hearing the arguments, the trial Court accepted the prosecution version regarding the deceased being harassed on account of demands of dowry and since she had ***

died unnatural death within seven years of her marriage, it came to the conclusion that the case against the appellants was proved beyond reasonable doubt and sentenced them to undergo rigorous imprisonment for a period of twelve years and to pay a fine of Rs.10,000/- each for the offence punishable under Section 304-B read with Section 34 IPC. In default of payment of fine,they were ordered to further under rigorous imprisonment for two years. Appellants were further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5000/- each for the offence punishable under Section 498-A read with Section 34 of IPC.

In default of payment of fine, they were further ordered to undergo rigorous imprisonment for six months. Hence, the present appeal.

We have heard Mr.H.S.Gill, learned senior counsel assisted by Mr.Vivek Goel, Advocate appearing on behalf of the appellants and Mr.B.S.Rana, learned Senior Deputy Advocate General, Haryana.

In the present case certain facts cannot be disputed, namely,

a) the deceased was one of the six daughters of Om Parkash;

b) her marriage with Manoj was solemnised on 29.6.2002; and

***

c) she died on 14.3.2003.

Neither Manoj nor his parents denied that the death of Suman had taken place owing to her having hung herself with the help of scarf/chuni. This scarf/chuni was got discovered by Manoj after he had been arrested in the case on 22.3.2003.

Dr.S.P.Sharma PW7, who performed the post-mortem on the dead body of Suman had found:-

"a legature mark was present around the neck dark brown colour 26 cm X 2 cm obliquely placed around neck just below left mendible to above thyroid cartilage to 2 inch below the right mendible laterly to occupy posterialy to just below mastroid with knot below left ear."

Dr.S.P.Sharma PW7 was of the view that the cause of death was due to strangulation and body might have been hung thereafter. Although a feeble effort was made to challenge this opinion yet nothing substantial was brought in cross examination. We, therefore, have a case where young girl, who was married only about nine months ago had met her end in a manner which can not be termed as natural and if the version set forth in the testimony of prosecution witnesses about the deceased being harassed with demands of dowry are not disproved, the Court would be obliged to rely upon the presumption under Section 113 of the Indian Evidence Act and ***

presume unless satisfactory evidence to the contrary is brought on record by the accused that they are guilty of offences under Sections 498-A and 304-B IPC.

In relation to the evidence with regard to demands of dowry available in the testimony of Om Parkash PW5, we scrutinised the statement and found that in cross-examination, the appellants have not been able to bring out anything, which would enable us to discard the testimony. Witnesses were categorical in their statements to the effect that :- a) Om Parkash had given dowry beyond his reach; b) Appellants were not satisfied with the dowry received by them;

c) At the time of marriage, on seeing the articles of dowry Manoj and his father Gulab Singh had demanded a colour T.V, fridge and scooter whereupon Om Parkash PW5 had called for his brother Satpal and borrowed Rs.25,000/- from him which were given to Gulab Singh(as per statement of Om Parkash and Satpal);and

d) Om Parkash and his family was unable to meet the demands.

This evidence to our mind was rightly relied upon by the trial Court to bring into operation the provisions of Section 498-A IPC against the appellants.

***

After taking into consideration the submissions made by Mr.H.S.Gill, learned senior counsel we see no reason for taking a contrary view. We, therefore, have a case where an offence under Section 498-A IPC is proved against the appellants. It is further proved on the record that death of Suman had taken place within seven years of the marriage and death is not natural. This situation, as already indicated by us, would immediately call into play the provisions of Section 113- B of the Indian Evidence Act and oblige us to hold the appellants guilty under Section 304-B IPC. Consequently, the conviction of the appellants under Sections 498-A and 304-B read with Section 34 IPC has got to be upheld.

On the question of sentence, Mr.Gill submitted that 12 years incarceration which has been imposed upon the entire family is on the higher side and atleast in the case of the parents, sentence imposed upon them under Section 304-B IPC should be reduced. In any case, according to him, since there is no provision for imposing a fine under Section 304-B IPC, the trial Court's order in relation to imposition of Rs.10,000/- as fine is not sustainable.

Having given our thoughtful consideration to the above submissions, we find that the death of Suman took place within 9 months of the marriage and as such one cannot but infer that the extent of crurelty which the deceased Suman had ***

to suffer at the hands of the appellants would be unbearable. It seems that newly wed girl was not given a moment's peace in her married life. Although the fact that the Scarf/Chuni was recovered at the behest of Manoj would normally point out to more active role being played by him yet there is no material on record which could pursuade us to hold that the death of Suman was not the outcome of a joint design of Manoj and his parents.

At no point of time, the elders seem to have disassociated themselves from the actions of their son and the opinion of the Doctor not only indicate that the death was due to strangulation and dead body might have been hanged thereafter but points towards the fact that the elimination of Suman was as a result of the common intention shared by Manoj, Gulab Singh and Sunder Devi to kill Suman. In these circumstances, we do not feel that reduction of sentence of imprisonment would in this case be called for. The objection regarding the imposition of fine has, however, to be sustained as in view of the fact that in Section 304-B IPC,which reads as under:- "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."

there is no provision of imposition of fine and the maximum sentence that can be imposed under this Section is life imprisonment. Minimum sentence being seven years, as has been pointed out by the trial Court, the Court, however, cannot impose a sentence of fine and to that extent the sentence awarded by the trial Court will have to be upset with the result that while upholding the sentence of imprisonment, we will have to set aside the sentence of fine as well as sentence imposed in default of payment of fine. We order accordingly.

Subject to this modification, the appeal fails and the same is dismissed.

(Amar Dutt)

Judge

May 30,2006 (A.N.Jindal)

Pa Judge


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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