Punjab-Haryana High Court
Balwant Singh vs State Of Punjab on 12 September, 1995
Equivalent citations: II(1996)DMC614
Author: S.C. Datta
Bench: S.C. Datta
JUDGMENT S.C. Datta, J.
1. The appellant Balwant Singh @ Jaswant Singh son of Mit Singh, resident of Rurka Kalan, faced trial before the learned Additional Sessions Judge, Jalandhar on a charge Under Section 304-B of Indian Penal Code for subjecting his wife Gurdev Kaur to cruelty or harassment in connection with demand of dowry.
2 The case was registered with Police Station Goraya on the complaint of Shri Sohan Singh son of Dheru, resident of Village Garcha, Police Station, Nawanshahr, father of the deceased.
3. In brief, the prosecution case is that the de facto complainant has five children, three sons and two daughters. The deceased Gurdev Kaur was eldest daughter of the informant, namely, Sohan Singh. The deceased Gurdev Kaur was aged about 26 years. She was married to the appellant Balwant Singh about three years ago. The informant claims that he had given dowry to his daughter upto his capacity at the time of marriage, but his son-in-law Balwant Singh started taunting the deceased since some time after the marriage ceremony was over for bringing less dowry in marriage and started further troubling and harassing the deceased. He advised his son-in-law Balwant Singh on many occasions to behave ever after seeing the latter at his residence at Village Rurka Kalan. The appellant did not change his behaviour but continued harassing his daughter. About 15-20 days before the present incident, the deceased came to her father's place at Village Garcha and complained to the informant that her husband was threatening her with consequences and asking her to bring more dowry articles from her father. Thereupon, the de facto complainant alongwith his brother-in-law Makhan Singh, son of Jagat Singh accompanied the deceased Gurdev Kaur to the residence of the appellant and advised him to resist from raising any such claim. He left his daughter at the matrimonial home. It has been alleged that even on that very day, the appellant Balwant Singh abused the deceased in their presence.
4. On 7.1.1991 at about 10 a.m. Makhan Singh, brother-in-law, of the de facto complainant came to his residence and informed him that Gurdev Kaur had died after consuming poisonous substance. The de facto complainant suspected that either the appellant had administered poison to her or his daughter Gurdev Kaur consumed poison feeling aggrieved by the behaviour meted out to her by the appellant Balwant Singh. The informant alongwith Makhan Singh rushed to the matrimonial home of the deceased and saw her lying dead. Thereafter, he pro- ceeded towards the Police Station when he met the Police Officer at bus stand Sang Dhesian and reported the incident to the Police Officer. On the basis of the statement of Sohan Singh, a formal F.I.R. was registered and investigation started.
5. On taking up investigation, the Police Officer visited the spot, held the inquest on the dead-body of the deceased Gurdev Kaur and sent the dead body to the hospital for post mortem examination. Eventually challan was submitted and the appellant was put up for trial before the learned Additional Sessions Judge, Jalandhar, who by order dated 6.12.1993, was pleased to convict the accused Balwant Singh under Section 304-B of the Indian Penal Code and sentenced him to imprisonment for life and also to pay a fine of Rs. 10,000/-.
6. Being aggrieved by the order of conviction and sentence passed by the learned Additional Sessions Judge, Jalandhar, the appellant has moved this Court in appeal.
7. The prosecution case is that the deceased Gurdev Kaur was married to the accused Balwant Singh about three years back and she was blessed with a male child. She put an end to her life on 7.1.1991 by consuming poisonous substance. It has been alleged that ever-since the marriage, the accused started taunting the deceased Gurdev Kaur for bringing less dowry. It has been further alleged that the accused kept on pressurising the deceased Gurdev Kaur for bringing more dowry from her father. It is also alleged that 15-20 days prior to her death, the deceased came to her parental house at Garcha and told the de facto complainant about the demand for more dowry made by her husband. The de facto complainant and his brother-in-law Makhan Singh reached the deceased Gurdev Kaur to her matrimonial home and requested the accused to behave and not to press the demand for more dowry. It has been alleged that the deceased could not bear the taunting and harassment meted out to her because of bringing less dowry during the marriage. The de facto complainant asserts that he had given dowry upto his capacity at the time of marriage.
8. Learned Counsel appearing for the appellant submits that the ingredients of Section 304-B of the Indian Penal Code have not been proved by the prosecution. He submits further that one of the ingredients of Section 304-B of the Indian Penal Code is that the death of a woman must be caused otherwise than under normal circumstances within seven years of her marriage. He submits also that in the present case the death of deceased Gurdev Kaur was not due to poisoning but due to gastroenteritis. In other words, he wants to submit that the death of Gurdev Kaur was a natural one and, therefore, the provisions of Section 304-B of the Indian Penal Code would not be attracted. In this connection, it would be relevant to quote Section 304-B of the Indian Penal Code, which reads as under :
"(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."
9. In order to bring home the charge under Section 304-B of the Indian Penal Code, the prosecution is required to prove: (i) that death of a woman was caused within seven years of her marriage, (ii) that the death of a woman was unnatural one, and (iii) it must be 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. Let us now examine whether the prosecution has clearly established all three ingredients of Section 304-B of the Indian Penal Code so as to establish the charge against the accused appellant.
10. We have already noticed that the case was started on the complaint of Sohan Singh, father of the deceased. In the F.I.R. it has been alleged that his daughter Gurdev Kaur was married to Balwant Singh about three years back. The incident allegedly occurred on 7.1.1991. Therefore, he meant to say that the marriage took place some time towards the later part of 1987 or the early part of 1988. In evidence also, he asserts that Gurdev Kaur was married to the accused about three years prior to the occurrence. This fact is, however, denied by the defence. Learned Counsel for the appellant has drawn our attention to the defence case in this regard. The defence case throughout was that the marriage was solemnised in 1982, Bishambar Singh (DW2) says that the marriage was solemnised about 12 years back. During cross-examination, he was more specific about the solemnisation of marriage in 1982. Joginder Singh (DW5) also corroborates that Gurdev Kaur was married with the accused in 1982. We find from the evidence of Gian Singh (DW7) that son of the accused through deceased Gurdev Kaur was only two years of age at the time of death of the deceased, meaning thereby, that the child was born of the wed-lock some time in January, 1989. Dr. J.P. Singh (PW1) had conducted the post-mortem examination on the dead body of deceased Gurdev Kaur on 7.1.1991. According to him, the deceased was aged about 25-27 years old.
11. If we are to believe the defence version of the case to the effect that the deceased was married about 12 years back, then we are to conclude that she was married at the age of 14 or 15 years, we have earlier noticed that the deceased left a son only two years old. Then we are also to conclude that the couple was issueless till 1989, though the marriage was allegedly solemnised some time in 1982. The de facto complainant (PW 2) asserts on oath that the marriage was solemnised three years prior to the death of the deceased. In view of the fact that the deceased left a male child of two years of age only, prosecution version of the case seems more probable. There is another aspect of the matter. If the marriage of the deceased had taken place in 1982, she would have been 15 years old at that time and so it is hard to believe that she would get married at the age of 15 years only, which is prohibited age of marriage as per the law in force in the country. Therefore, we have no hesitation to reject the testimony of the defence witnesses in this regard. We are of the clear opinion that the prosecution has established the fact of marriage of the deceased with the accused Balwant Singh in year 1988. Therefore, we conclude that the first ingredient of the offence under Section 304-B of the Indian Penal Code is fully proved by the prosecution.
12. The next point for consideration is whether the death of the deceased was caused otherwise than under normal circumstances or she died of gastroenteritis. We find from the evidence of the de facto complainant (PW 3) that he received information about the death of his daughter on 7.1.1991. He immediately rushed to the matrimonial home of the deceased alongwith his brother-in-law Makhan Singh and noticed the dead body of his daughter there. Her child, who was lying besides her, was crying. He is corroborated in this respect by Makhan Singh (PW 5) who rushed to Village Rurka Kalan. On reaching there, he saw the dead body of Gurdev Kaur lying in the house and her minor child was besides her, but no other family member was found present there. PW 6 is A.S.I. Sikattiar Singh. He also noticed the dead body of Gurdev Kaur lying inside the room and thereafter, he sent the dead body for post-mortem examination after completing the inquest proceedings.
13. Learned Counsel for the appellant argues that the death of the deceased cannot be said to be an unnatural one. According to him, the deceased Gurdev Kaur died of gastroenteritis. In this connection, he has taken us through the statement of the accused during his examination under Section 313 of the Code of Criminal Pro- cedure. Accused Balwant Singh has stated during his examination under Section 313, Cr.P.C. that Gurdev Kaur was attacked with gastroeneritis on 5.1.1991 and he took her to Primary Health Centre at Jandiala alongwith Lahambar Singh for treatment. According to him Gurdev Kaur was given treatment there. They were advised to take Gurdev Kaur to C.M.C., Ludhiana for better treatment. According to the accused, the deceased expired on 6.1.1991 while on way to C.M-C. Hospital, Ludhiana for treatment. He states that after the death of Gurdev Kaur, Makhan Singh and Sohan Singh were informed of this fact. Learned Counsel then draws our attention to the evidence of Dr. D.P. Singh, Medical Officer, Susidiary Health Centre, Samrai, District Jalandhar (DW 1) to contend that the death of deceased Gurdev Kaur was due to gastroenteritis. Dr. D.P. Singh says that on 5.1.1991 while he was posted as Medical Officer, Primary Health Centre, Jandiala, he examined one Satwinder Kaur, wife of Jaswant Singh, resident of Rurka Kalan, at 6 p.m. He states that the patient complained of gastroenteritis trouble. She was given emer- gency treatment and was referred to Civil Hospital, Jalandhar. According to him, the patient was suffering from gastroenteritis and was very dehydrated. He admitted that no medico-legal report was prepared in the case as it was a case of gastroeteritis. He says that emergency treatment was given to her. We do not know what sort of treatment was given to her because there is no record available to us to know what sort of treatment was given to the patient. During cross-examination, it has been elicited from him that gastroenteritis is caused due to viral infection, bacterial infection or amoebic infection. He says that gastroenteritis could also be on account of poisoning. But that is separate diagnosis. He says that aluminium phosphide is poisonous and it can cause vomitting stage of gastroenteritis. During trial, it has been sought to prove that the name of Gurdev Kaur was changed to Satwinder Kaur after marriage, but there is no cogent evidence to show that, in fact, the deceased was also called as Satwinder Kaur. The pronote Ext. DW2/B purported to have been executed by Gurdev Kaur i.e. the deceased had also signed not as Satwinder Kaur but as Gurdev Kaur. Therefore, the case of the defence to the effect that the name of the deceased was changed after marriage, cannot be believed.
14. Anyway, we find from the evidence of the Autopsy Surgeon (PW 1) that he performed the post-mortem examination on the dead body of deceased Gurdev Kaur daughter of Sohan Singh on 7.1.1991 at 3.45 p.m. He states that the dead body was of a female aged about 26-27 years. The body was light bluish in colour and markedly bluish at its lips, conjective, nails and tongue. It did not bear any external injury. He noticed that the stomach contained 400 mls. of foul smelling liquid. The doctor reserved his opinion about the cause of death till the receipt of the report of the Chemical Examiner, Patiala. On receipt of the report of the Chemical Examiner, the opinion of the Autopsy Surgeon was sought and he was of the opinion that the cause of death, as per Chemical Examiner report, was aluminium phosphide which could definitely be the cause of death. He is further of the opinion that aluminium phosphide is a pesticide and is a poisonous substance. He says that aluminium is not a poison. He admits that he does not remember the fatal dose of aluminium phosphide. The prosecution has tendered in evidence the report of the Chemical Examiner Exhibit PE. On a reference to this document, we find that the Chemical Examiner to Government of Punjab received a packet from Dr. Jagdish Pal Singh, S.M.O. Incharge, Civil Hospital, Phillaur through Constable Jangir Singh No. 478 with a seal bearing the impression on the invoice. He noticed all the 16 seals entire and intact. We find further that the seals were opened in his presence and the contents of the packet were duly examined by him and it remained under his immediate custody until examination was over. We find from the report that the aluminium phosphide is a pesticide and it was detected in the stomach (Exhibit No. 1) and large and small intestine (Exhibit No. III). We also find that phosphide a constituent of aluminium phosphide was detected in the contents of Exhibits No. II and IV i.e. liver, spleen and kidney and blood respectively. It is with reference to this report that the Autopsy Surgeon has opined about the probable cause of death of the deceased Gurdev Kaur. This report together with the evidence of the Autopsy Surgeon clearly go to show that the death of deceased Gurdev Kaur was due to poisoning. We notice from this report that the phosphide a constituent of aluminium phosphide was mixed with the blood of the deceased causing her death. Learned Counsel for the appellant assails this report on the ground that the person who had handed over the sample in the office of the Chemical Examiner had not sworn an afidavit to the effect that the sample so long it remained in his custody was not tampered with. He submits that in the circumstances the link evidence is missing. But the Chemical Examiner before opening this sample found that the seal on the sample was intact and it tallied with the sample seal. Therefore, much cannot be said about the non-filing of the affidavit by the constable who carried the sample to the Chemical Examiner. Learned Counsel for the appellant further submits that the Chemical Examiner did not state the lethal dose of the aluminium phosphide in the stomach of the deceased. He submits that in the absence of such particular, the death by poisoning cannot be inferred, but we must not lose sight of the fact that phosphide a constituent of aluminium entered the blood resulting in the death of the deceased and this is evident from the report of the Chemical Examiner. The report of the Chemical Examiner coupled with the opinion of the doctor is, therefore, sufficient to hold that it was a death by poisoning. Therefore, we have no hesitation to conclude that the death of Gurdev Kaur was caused otherwise than under normal circumstances within seven years of her marriage.
15. The next point which falls for our consideration is whether there had been any demand of dowry soon before the death of deceased Gurdev Kaur. In the F.I.R. as well as in his evidence, the father of the deceased Sh. Sohan Singh, asserts that he had married the deceased to accused Balwant Singh about three years back and had given dowry according to his capacity at the time of marriage. But the accused started taunting the deceased soon after some time of marriage for bringing less dowry in marriage and started troubling and harassing her. He says that even 15- 20 days prior to the incident, the deceased Gurdev came to his house and complained about the maltreatment meted out to her by her husband. We find from his evidence that the accused was making demand of more valuable articles and had also given her beatings. Sohan Singh informed this fact to his brother-in-law, Makhan Singh (PW5) and both together went to the matrimonial house of the deceased and reached her there. There, Sohan Singh and Makhan Singh advised the accused not to ill-treat her and the latter assured that he will not maltreat the deceased. The defence has also examined some witnesses to tell that, in fact, there had been no demand for dowry by the accused. But all these persons are of the village where the accused resides. It is unlikely that they will deplore against the accused. We have already noticed that the deceased was only 26-27 years old when the death occurred. Her male child was only two years old at the time of her death. It is not the case of the defence that she was obstinate or hot-tempered. It is extremely difficult for us to believe that she would put an end to her life for nothing. In this connection, it would be apt to quote the observations of Justice M.M. Punchhi (as his Lordship then was) in a case of Amarjit Singh and Ors. v. State of Punjab, reported in 1989(1) Recent C.R. 18, which are as under :
"It is well recognised in criminal law of breach of trust that where property is entrusted to another, it is the duty of that other to give the true account of what he did with the property so entrusted to him and his failure to do so raises under Section 105 of the Indian Evidence Act a presumption that he had criminally misappropriated the property so entrusted to him. We view that the position of a bride cannot be worse. Her welfare and physical protection is also in trust with people in whose care she has been put in and if she has been deprived of her life, the person to whom she stood entrusted must necessarily account for as he or she alone is supposed to have a special knowledge about the crime especially when he or she was the last person to be seen together or expected to be together with the deceased."
His Lordship was further pleased to observe as under :
"In case of dowry deaths, there have arisen exceptional circumstances and in our view a procedure should be geared to apply to the exigencies of time by invoking in appropriate cases Section 106 of the Indian Evidence Act, 1982, requiring the accused to prove and explain how did the bride with whom he was seen together last or expected to be together last, turn into a corpse as that fact would be presumed to be especially within his knowledge."
Therefore, keeping in view the observations of his Lordships, we are now to analyse the prosecution evidence.
16. The dead body of Gurdev Kaur was found lying in the house of the accused. Their child was two years old and was seen crying by the side of the dead body. There was no body in the house. In the circumstances, the accused is to explain as to how alive body was turned into a corpse or is made to turn into corpse. Here in this case, the explanation offered by the accused is wholly unbelievable. It has been clearly proved that Gurdev Kaur had put to an end to her life by consuming poison. The accused was not found by the side of the dead body when the informant alongwith his brother-in-law Makhan Singh arrived there nor was he found at the spot when the Police Officer (PW 6) reached there. He was arrested on 12.1.1991. The movement of the accused and situations are incompatible with his innocence. On the contrary, it gives sustenance to his guilt.
17. There is another aspect of the case, which should not be lost sight of. Here in this case, the de facto complainant has lodged complaint only against accused Balwant Singh. Naturally, the tendency of the people is to rope in all the in-laws in such type of cases. But here, we find the informant making allegations against his son-in-law only leaving aside the other in-laws. Therefore, having regard to all the facts and circumstances, we find that the Additional Sessions Judge was perfectly justified in convicting the accused under Section 304-B, Indian Penal Code. We see no good reason to interfere with his judgment. In the result, the appeal fails and is dismissed.