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GURVINDER SINGH GILL, J. –

1. This judgment shall dispose of the above mentioned two appeals as well as the revision petition, all directed against the same very judgment dated 06.08.2003 passed by learned Additional Sessions Judge, (Adhoc), Faridabad vide which the respondents/accused namely Masooq Ali and Wahid have been convicted for offence punishable under Section 498-A IPC and have been sentenced to undergo rigorous imprisonment for three years and to pay fine amounting to Rs.2000/-. The aforesaid accused/appellants have however, been acquitted in respect of the charges framed against them in respect of offence punishable under Section 304-B IPC.

2. The FIR (Ex.PA/1) was lodged on the basis of a written application dated 24.3.2002 (Ex.PA) submitted by Ikramuddin (uncle of deceased Saira Bano) wherein it is alleged that his niece Saira Bano had been married to Masooq Ali son of Wahid about 4 years ago and that they had given 1½ Kgs Silver, 3 tolas gold ornaments, 101 utensils, 51 suits, 5 beds, 3 boxes and Rs.31,000/- in cash. However, husband and father-in-law of Saira Bano being dis-satisfied with dowry started teasing her after the marriage and whenever she used to come to her parental home she used to state that her father-in-law and her husband were teasing her and demanding an amount of Rs.10,000/-. It is alleged that about 5 months back Saira Bano had been pressurised by her husband and father-in-law to bring Rs.10,000/- and was sent to her parental home and subsequently when her husband came to take her, he demanded an amount of Rs.10,000/-. The complainant and Sajida (mother of deceased) and complainant’s brother Farman however, stated that they were poor people and could not arrange for such amount and sent Saira Bano with her husband. It is alleged that Masooq Ali and his father Wahid had taken some land on lease situated in village Satuagarhi, Police Station Hassanpur, District Faridabad and Saira Bano started residing with her two children at village Satuagarhi. On 22.3.2002, accused informed the complainant that she had consumed something. After about 2 hours it was informed that Saira Bano had died upon which the complainant and his uncle Alimuddin rushed to village Satuagarhi. However, neither the deceased nor the accused were found there. The complainant and his uncle made inquiries and searched for Saira Bano, her husband and father-in-law in hospitals situated in Hassanpur, Palwal, Faridabad and Delhi and reached at village Moi-Kakor (matrimonial village of deceased) on 23.3.2002 at about 10 pm and found the dead body of Saira Bano lying on a cot. However, her husband and her father-in-law were not present there. The complainant brought the dead body of his niece Saira Bano to Palwal where she was kept in Government Hospital Palwal and thereafter he reported the matter to the police alleging that her niece had been poisoned to death by her husband-Masooq Ali and her father-in-law Wahid in greed of dowry.

3. Pursuant to receipt of the aforesaid information by the police, the matter was investigated by the police during the course of which requisite inquest proceedings were conducted and the dead body of Saira Bano was got subjected to post mortem examination. Samples of viscera were taken and sent for chemical examination. Statements of witnesses were recorded. Upon conclusion of investigation, challan was presented in the Court of learned Judicial Magistrate 1^st Class, who upon finding that the facts prima facie disclosed commission of offences punishable under Sections 304-B, 498-A, 406, 34 IPC, committed the case to the Court of Sessions where charges were framed against the accused with respect to offence punishable under Section 304-B IPC on 11.2.2003 to which the accused pleaded not guilty and claimed trial.

4. The prosecution in order to establish its case examined as many as 9 PWs, the gist of whose testimonies is being briefly referred to herein under:-

PW-1-Ikramuddin (complainant and uncle of the deceased) stated in tune with the version unfolded by him in the FIR with respect to the allegations of demand of dowry by the accused. He further stated that Saira Bano was done to death on the evening of 22.3.2002 and that at about 8 pm on said day Wahid had informed them telephonically about her death while stating that she had taken some medicine.

PW-2-Sanjida (mother of the deceased) also stated in support of the case of prosecution as regards the allegations of demand of dowry by the accused.

PW-3-Dr. Bhagwat Sarup Sharma, Medical Officer, General Hospital Palwal, who was member of Medical Board and had conducted post mortem examination on the dead body of Saira Bano proved the post mortem report as Ex.PB. He further stated that upon seeing the report of FSL (Ex.PX) he could say that death was due to administering of organo phosphide compound commonly known as celphos.

PW-4-Alimuddin (grand-father of deceased) stated in support of the case of prosecution as regards the demand of dowry raised by accused and as regards the death of the deceased.

PW-5-Tara Chand Patwari, proved the scaled site plan as Ex.PC.

PW-6-SI Amarjeet, stated that during the course of investigation he had recorded statements of Farman and Ikramuddin and that upon completion of investigation challan was prepared and that the same bears his signatures.

PW-7-ASI Jai Kishan, stated that on 24.3.2002 when he was working as ASI in Police Station Hassanpur, Ikramuddin (complainant) had come to the police station and had submitted an application (Ex.PA) on the basis of which FIR (Ex.PA/1) was recorded. He further stated that he had conducted the inquest proceedings and had prepared the inquest report as Ex.PD and had sent the dead body for post mortem examination. He further stated that while accused Masooq Ali was arrested on 17.4.2002, accused Wahid was arrested on 30.4.2002.

PW-8-HC Yad Ram, who had been working as MHC at Police Station Hassanpur stated that on 24.3.2002 ASI Jai Kishan had deposited the sealed sample of viscera along with sample seal and forwarding letter in the malkhana with him and that on 28.3.2002 the said case property was entrusted to Constable Vijay Kumar for being delivered to Director Forensic Science Laboratory Madhuban, Karnal which was delivered on the same day. He further stated that as long as the case property remained in his possession the same was not tampered with.

PW-9-Constable Vijay Kumar stated that on 28.3.2002 HC Yad Ram had entrusted the case property to him and that he had deposited the same in the Office of FSL Mahduhan on the same very day and that the same was not tampered with.

5. Upon conclusion of prosecution evidence, statements of the accused were recorded in terms of Section 313 Cr.P.C. wherein they denied the case of prosecution and pleaded false implication. Accused Masooq Ali further pleaded that on 22.3.2002 grand-mother of Saira Bano had expired and he had gone to mourn her death. However, he did not take along his wife (deceased) as his younger son was ailing though his wife was insisting for the same and that when he came back he found that his wife was dead.

6. The accused in their defence evidence examined DW-1 Ayub who stated that Saira Bano was daughter of his father’s brother and had been married to Masooq Ali and that he had visited the house of accused several times and had found that Saira Bano had been living a happy married life. He stated that Haliman, grand-mother of Saira Bano died on 12.3.2002 and that the mourning ceremony on the 10^th day after death was to be observed on 22.3.2002 which was attended by Masooq Ali. He further deposed that upon inquiry Masooq Ali disclosed that his younger son was ailing and Saira Bano had not come for the said reason and that later on the same day he came to know that Saira Bano had died.

7. Upon marshaling the evidence led by the prosecution as well as by the defence, the trial Court acquitted the accused in respect of offence punishable under Section 304-B IPC, but held them guilty for offence punishable under Section 498-A IPC and sentenced them to undergo rigorous imprisonment for 3 years and fine of Rs.2000/- each.

8. Learned counsel for the accused (appellants in CRA-S-1567-SB-2003) assailed their conviction on the ground that there are contradictions in the evidence led by the prosecution as regards the date of demand of dowry. It has further been submitted that several improvements have been made when complainant i.e. PW-1 Ikramuddin stepped into the witness box inasmuch as demands of a colour TV and Scooter had also been included therein though there is no such reference to such demand in the FIR. It has further been submitted that as a matter of fact the mediator to the marriage had been examined as a defence witness by the accused as DW-1 Ayub who happens to be related to the deceased who clearly stated that whenever he visited the matrimonial home of the deceased he found deceased to be living a happy married life. It has thus been submitted that under these circumstances the conviction for offence punishable under Section 498-A IPC was unwarranted.

9. Learned State counsel while opposing the aforesaid contention and while pressing upon the State appeal i.e. CRA-D-349-DBA-2004 submitted that the trial Court fell in error in acquitting the accused for offence punishable under Section 304-B IPC by erroneously observing that the demands made by the accused after marriage would not be covered under the term ‘dowry’ whereas the legal position in this regard stands well settled by three Judges Bench of Hon’ble the Supreme Court in Rajinder Singh Vs. State of Punjab Criminal Appeal No.2321 of 2009. It has thus been submitted that the impugned judgment cannot sustain and is liable to be set aside and both the accused deserves to be convicted for having committed offence punishable under Section 304-B IPC.

10. Learned counsel for the complainant/petitioner in CRR-1896-2003 submitted that the sentence imposed upon the accused is on the lesser side and is not commensurate with the heinous nature of offence committed by the accused.

11. This Court has considered rival submissions addressed before this Court and has also gone through the record of the case.

12. Before proceeding further it is apposite to bear in mind the bare provisions of Section 304-B IPC and the same are reproduced hereinunder:-

“304B. 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 purposes 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"

13. Offence under Section 304-B IPC is such wherein presumption of guilt under Section 113-B of the Indian Evidence Act may be drawn against the accused and the onus to establish innocence shifts upon the accused. The necessary ingredients of Section 304-B IPC may be spelt out as follows:

(i) that deceased died due to burning or bodily injury or any other un-natural death;

(ii) that the deceased died within seven years of her marriage;

(iii) that the deceased was subjected to cruelty or harassment by her husband or his relatives;

(iv) that such cruelty or harassment was in connection with demand of dowry;

(v) that such cruelty or harassment was soon before her death.”

14. In the present case the prosecution has placed on record the nikahnama (Ex.PJ), as per which the marriage of Saira Bano was solemnized with accused Masooq Ali on 07.08.1999. Though, the said nikahnama has been assailed by the accused on the ground that the same has not been duly proved, but no such objection as regards exhibiting of said document was raised when the same was exhibited during the course of statement of PW-7 ASI Jai Kishan. Although the DW examined by the accused has attempted to project that the marriage of deceased was solemnized more than 7 years prior to date of death, but there is no documentary evidence to support the said assertion. Under these circumstances, this Court has no hesitation in accepting the testimony of the prosecution witnesses and also the nikahnama so as to hold that death occurred within less than 7 years of marriage of the deceased.

15. The question as regards unnatural death of deceased is fully borne out from the testimony of PW-3 Dr. Bhagwat Sarup Sharma, Medical Officer, General Hospital, Palwal who had conducted the post mortem examination on the dead body of Saira Bano, who has categorically stated on the basis of report of FSL that the cause of death was on account of ‘organo phosphide compound commonly known as celphos’. The said doctor was briefly cross-examined on behalf of the accused, but nothing could be elicited during the course of cross-examination so as to doubt the opinion or the veracity of the said witness. As such, this Court has no hesitation in holding that the deceased had died an unnatural death and that too while in her matrimonial home.

16. As per FIR, it is the specific case of the prosecution that the accused had been demanding an amount of Rs.10,000/- from the deceased and had been pressurising her on the said count. As per the allegations levelled in the FIR, the accused started harassing her shortly after her marriage on account of insufficient dowry. It is further alleged therein that about 5 months prior to her death the deceased was pressurized and sent to her parental home to bring an amount of Rs.10,000/- and when her husband came to get her back he also demanded an amount of Rs.10,000/- but the deceased was sent back to her matrimonial home with her husband. When complainant-Ikramuddin stepped into the witness box as PW-1, he apart from reiterating what had been disclosed in the FIR further stated that one month prior to her death the accused were demanding TV, a scooter and an amount of Rs.10,000/- in cash and was sent to her parental home with a threat that she would be killed in case the demands were not met. He further deposed that although a Panchayat was convened comprising of respectables of the village so as to reason out with the accused and that consequently Wahid came to their village and took along Saira Bano with him. Subsequently, on 22.3.2002 she was done to death.

17. PW-2 Sanjida mother of the deceased stated that whenever Saira Bano used to visit her parental home she used to disclose her that accused were harassing her and pressurising her to bring more dowry in the shape of Rs.10,000/- and a scooter and had been threatening to kill her in case the demands were not met. He stated that Saira Bano paid her last visit to parental home about 2 months prior to her death and at that time she had disclosed to her regarding the demands. She further stated that about 30 to 35 days prior to her death the accused had sent Saira Bano back to her matrimonial home with Masooq Ali advising her to adjust in her matrimonial home.

18. PW-4 Alimuddin grand-mother of the deceased stated that the accused did not demand anything at the time of marriage. However, after marriage Saira Bano told him that the accused were demanding an amount of Rs.10,000/- and TV and were harassing her in relation to the said demand and were threatening to kill her in case the demands were not met. He further stated that Masooq Ali brought Saira Bano to her parental home about 2 months prior to her death and left her there and later when he came to get her back, respectables of the community had gathered there and Masooq Ali was requested to treat his wife well. During the course of cross-examination she stated that during the 4 years after marriage no demand was raised by the accused however, she added that TV was demanded at the time of marriage and that cash was also demanded. He denied the suggestion that no demand was raised at the time of marriage or thereafter being incorrect. He further stated that she never took any Panchayat at the house of the accused.

19. A perusal of the aforesaid testimonies would show that while all the three witnesses namely PW-1 Ikrammudin, PW-2 Sanjida and PW-4 Alimuddin have categorically stated that after the marriage the accused started harassing Saira Bano in order to press upon the demand of Rs.10,000/-, but there is some contradiction as regards the time when said demands were made. PW-1 Ikrammudin while stating that whenever Saira Bano visit her parental home she used to disclose about the demand raised by the accused, he categorically also stated that when Saira Bano had come to her parental home about one month prior to her death, the accused had asked her to bring an amount of Rs.10,000/- failing which she would be killed. PW-2 Sanjida, mother of the deceased, while stating that Saira Bano (deceased) during her visits to her parental home used to tell her about the harassment met out to her on account of demand of more dowry in the shape of Rs.10,000/-. She further stated that the last visit of Saira Bano to her parental home was about 2 months prior to her death and she had disclosed at that time that the accused were demanding a TV and an amount of Rs.10,000/-. She further stated that she was however, sent back to her matrimonial home about 30/35 days prior to her death. PW-4 Alimuddin also stated that Saira Bano had been left at her parental home 2 months prior to her death by Masooq Ali and that when Masooq Ali came to get her back he was requested to treat Saira Bano well.

20. Though the timeline may not be absolutely consistent, but the position which emerges from testimonies of PW-1, PW-2 and PW-4 is that whenever the deceased used to visit her parental home she used to complain regarding conduct of the accused and that her last visit was about 2 months prior to her death when she had disclosed regarding the ill-treatment being met out to her. Though, the aforesaid testimonies are sought to be demolished by the accused by referring to testimony of DW-1 Ayub who claims to be related to the deceased and who stated that whenever he visited the house of accused, Saira Bano was found to be living a normal happy married life, but his testimony does not inspire confidence so as to justify doubting the substantially consistent testimonies of PW-1, PW-2 and PW-4. Although, the said PWs in their zeal have made some improvements by stating that a TV had also been demanded by the accused which fact is not mentioned in the FIR, but leaving aside the fact that FIR is not supposed to be encyclopedic, even if the said part is taken to be an improvement, the same can be ignored by the Court as the witnesses in their zeal might have made some improvements. It is the duty of the Court to separate grain from chaff. The allegation pertaining to repeated demand of Rs.10,000/- is not only referred to in the FIR, but is stated consistently by PW-1, PW-2 and PW-4 as well.

21. Based upon the depositions the above referred three witnesses PW-1, PW-2 and PW-4, the role of accused Masooq Ali having raised demand of Rs.10,000/- repeatedly and having left his wife at her parental home, cannot be doubted in any manner, but as far as the father-in-law of the deceased i.e. Wahid is concerned, he can be extended the benefit of doubt inasmuch as the maltreatment of a lady in her matrimonial home is only possible in case her husband does not keep her insulated from such onslaughts and does not protect her. Her maltreatment and harassment can only be there in case the husband actively participate in the same. Further, whenever any mishap occurs, it is very common that parents and relatives of the deceased-girl, would name not only her husband who would be the prime accused, but other members of the family also so as to wreak vengeance. A perusal of the FIR would show that when the husband had come to take back his wife from her parental home, it was he who raised the demand of Rs.10,000/-. As such, finding room for giving benefit of doubt to accused Wahid, his conviction for offence under Section 498-A is held to be unsustainable and deserves to be set aside. Consequently, he cannot even be held liable for commission of offence punishable under Section 304-B IPC.

22. While examining the impugned judgment as regards acquittal of accused Masooq Ali in respect of offence punishable under Section 304-B IPC, the trial Court fell in error in observing that demands made subsequent to the marriage would not tantamount to demand for dowry whereas the said position stands settled by Hon’ble Apex Court in Rajinder Singh’s case (Supra). The relevant extract from the said judgment is reproduced herein under:

“20. Given that the statute with which we are dealing must be given a fair, pragmatic, and common sense interpretation so as to fulfill the object sought to be achieved by Parliament, we feel that the judgment in Appasaheb’s case followed by the judgment of Kulwant Singh do not state the law correctly. We, therefore, declare that any money or property or valuable security demanded by any of the persons mentioned in Section 2 of the Dowry Prohibition Act, at or before or at any time after the marriage which is reasonably connected to the death of a married woman, would necessarily be in connection with or in relation to the marriage unless, the facts of a given case clearly and unequivocally point otherwise. Coming now to the other important ingredient of Section 304-B what exactly is meant by “soon before her death”

(emphasis supplied)

23. The aforesaid extract clearly shows that even demands of cash would qualify to be termed as ‘demand of dowry’ and that any such demand even if made post marriage would not lose the character of ‘demand of dowry’.

24. In the instant case the marriage had taken place barely about 4 years prior to the death. As per the testimony of the witnesses, whenever the deceased used to come to her parental home she used to disclose the demand of Rs.10,000/- by the accused. It is further borne out from the testimony of PW-2 and PW-4 that the deceased had last visited her parental home about 2 months back and even at that time she had disclosed about the demand of dowry made by the accused. Under these circumstances, it cannot be said that the demand was a stale demand so as not to be linked with in any manner with the death of the deceased. Hon’ble the Apex Court in Rajinder Singh’s case (Supra) has held that ‘soon before’ cannot be interpreted as ‘immediately before’. The relevant extract is reproduced herein under:

“23. We endorse what has been said by these two decisions. Days or months are not what is to be seen. What must be borne in mind is that the word "soon" does not mean "immediate". A fair and pragmatic construction keeping in mind the great social evil that has led to the enactment of Section 304B would make it clear that the expression is a relative expression. Time lags may differ from case to case. All that is necessary is that the demand for dowry should not be stale but should be the continuing cause for the death of the married woman under Section 304B.”

25. In view of the discussion made above, this Court finds that while Wahid deserves to be acquitted by extending him benefit of doubt, accused Masooq Ali would be liable for offence punishable under Section 304-B having ill treated her in order to press upon demand of dowry leading to her death. The trial Court clearly fell in error in recording a finding to the contrary. The death having taken place within less than 7 years and the appellant Masooq Ali having harassed her wife and having raised demand of dowry which were raised even two months prior to her death cannot escape from his liability on account of unnatural death of the deceased in matrimonial home on account of poison which will fully qualify to be termed as a ‘dowry death’.

26. Resultantly, the appeal filed by State of Haryana i.e. CRA-D-349-DBA-2004 is partly accepted qua accused Masooq Ali who is held guilty for having committed offence punishable under Section 304-B IPC. The State appeal challenging acquittal of Wahid with respect to offence under Section 304-B is however, dismissed.

27. Appeal filed by both accused namely Masooq Ali and Wahid i.e. CRA-S-1567-SB-2003 challenging their conviction for offence under Section 498-A IPC is accepted qua appellant-Wahid only. The conviction of appellant Wahid for offence under Section 498-A IPC is set aside and he is acquitted of the charges framed against him. The appeal qua appellant-Masooq Ali is dismissed.

28. As far as the criminal revision i.e. CRR-1896-2003 is concerned, the same is rendered infructuous in view of the fact that accused Wahid has been acquitted and accused Masooq Ali has been held guilty of having committed a graver offence punishable under Section 304-B IPC.

29. Although, accused Masooq Ali (CRA-D-349-DBA-2004) had been heard by the trial Court on quantum of sentence and his statement has been recorded by the trial Court on 07.08.2003, but having regard to the interregnum period of about two decades, it is deemed appropriate that his statement be recorded afresh before awarding sentence to him in respect of offence punishable under Section 304-B IPC.

30. Non Bailable Warrants for securing presence of convict Masooq Ali be issued through Chief Judicial Magistrate concerned as well as through Station House Officer concerned. Station House Officer, concerned is directed to produce Masooq Ali before this Court on 26.07.2024.

31. List CRA-D-349-DBA-2004 titled as ‘State of Haryana Vs. Masooq Ali and others’ again on 26.07.2024 for hearing convict-Masooq Ali on the quantum of sentence.

32. A copy of this judgment be sent to quarters concerned for necessary compliance.

33. A photocopy of this order be placed on the file of connected cases.

Order accordingly.

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