Punjab-Haryana High Court
Jasbir Singh vs State Of Punjab on 18 January, 2011
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No. 425-SB of 1997 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No. 425-SB of 1997
Date of decision: 18.1.2011
Jasbir Singh
... Appellant
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mrs.Baljit Kaur Mann, Advocate,
for the appellant.
Mr.P.S.Grewal, AAG, Punjab.
...
JORA SINGH, J.
This is an appeal by Jasbir Singh to challenge the judgment of conviction and order of sentence dated 7.5.1997 rendered by Sessions Judge, Hoshiarpur, in Sessions Case No. 19 of 1996, arising out of FIR No. 136 of 1995 under Section 302 IPC and in alternative, under Section 304-B IPC, PS Hariana, District Hoshiarpur.
By the said judgment, he was convicted under Section 304-B IPC and sentenced to undergo RI for 7 years.
Prosecution story, in brief, is that Kamaljit Kaur, complainant, is the mother of Jasbir Kaur (deceased). In the month of February, 1993, Jasbir Kaur, aged about 23 years, was married with Jasbir Singh son Kulwant Singh and out of this wedlock, she has two issues, one son, aged about 1-3/4 years, and one daughter, aged about 4 months. On 23.11.1995 at about 7.AM, Harbhajan Singh, uncle of Jasbir Singh, came and informed her that Jasbir Kaur in burnt condition was lying admitted in Civil Hospital, Hoshiarpur. On receipt of information, she along with her brother-in-law Surinder Singh had gone to Civil Hospital, Hoshiarpur, where Jasbir Kaur Crl.Appeal No. 425-SB of 1997 2 was found admitted in burnt condition. Whenever, Jasbir Kaur came to her parental house, then she told her that her (Jasbir Kaur) husband used to harass her to bring payment and more dowry from her parents. As per her (Kamaljit Kaur) status, she used to pay to Jasbir Singh. She was fed up from Jasbir Singh and she is sure that her daughter Jasbir Kaur was set on fire by her son-in-law, namely, Jasbir Singh. Statement of Kamaljit Kaur was recorded on 26.11.1995 at about 11.00 PM in Civil Hospital, Hoshiarpur. After making endorsement, statement (Ex.PL) was sent to the police station, on the basis of which, formal FIR (Ex.PL/2) was recorded.
IO had gone to the spot and after inspecting the spot had prepared rough site plan with correct marginal notes. Stove, empty bottle and shawl were lifted from the spot and taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in Court.
Accused was charged under Sections 302/304-B IPC, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW1 Dr.Dalip Singh stated that on 23.11.1995, application (Ex.PA) was moved to report as to whether Jasbir Kaur was fit to make statement or not, but she was declared unfit to make statement. Again on 24.11.1995 and 25.11.1995, applications (Ex.PB and Ex.PC), respectively, were moved to report as to whether Jasbir Kaur was fit to make statement or not, but she was declared unfit to make statement. Jasbir Kaur had succumbed to her burn injuries on 26.11.1995 at 4.20 PM. Jasbir Kaur was admitted in the hospital on 22.11.1995 at 9.20 AM and till her death, she Crl.Appeal No. 425-SB of 1997 3 remained unfit to make statement.
PW2 Dr. Gurbachan Singh on 27.11.1995 at 1.30 PM had conducted postmortem examination on the dead body of Jasbir Kaur and observed as under:-
"Length of the body was 5'-4''. It was dead body of moderately built and nourished, aged 23 years female. The body was naked. Eyes and mouth were closed. Rigor mortius present in all the four limbs. Postmortem staining could not be distinguished due to burns. Burnt area was medicated. Singing of hair of scalp, eye brows, eye lashes and pubic parts were present.
Burns Whole of the body was having burnt except scalp and part of face about 5%, part of groins and pubic area about 3%, both the feet about 2%. Burnt parts of the body was about 90%. The burns were mostly varying from 1 to 3 degree.
Red line of demarcation was present between healthy and burnt area. Slough in the burnt parts was present at places. Internal visceral were congested. Stomach- Mucous membrances of the stomach were congested. Small intestine was congested. Large intestine was full of gases and contained faecal matter. Bladder contained about 20 ml of urine. Organs of generation were partially burnt externally but were healthy internally.
In my opinion, the cause of death in this case was septicaemia due to burns, which were about 90% and were Crl.Appeal No. 425-SB of 1997 4 sufficient to cause death in the ordinary course of nature. The burns were ante mortem."
PW3 Darshan Singh, Draftsman, prepared scaled site plan (Ex.PJ).
PW4 Gurditta Ram stated that in the month of February, 1995, at about 7.00 AM, he was going towards his house, then noticed Jasbir Kaur on fire in her house. Jasbir Kaur fell down and he put sand on her. Jasbir Singh came after him. He had also made an effort to extinguish the fire.
PW5 Surinder Singh stated that Kamaljit Kaur, complainant, is the sister of his wife. About 1 year and 9 months earlier to the occurrence, Jasbir Kaur was married with Jasbir Singh, who is in Police Department. There are two issues from this wedlock. He had gone to the house of Kamaljit Kaur. On 22.11.1995 in the morning, Harbhajan Singh, uncle of Jasbir Singh, came and told that Jasbir Kaur had burnt herself by putting kerosene and was admitted in Civil Hospital, Hoshiarpur. After that, he along with Kamaljit Kaur had gone to Civil Hospital, Hoshiarpur, but Jasbir Kaur was not fit to make statement. On 25.11.1995, Jasbir Kaur was able to speak. Then on enquiry, she told him that she was burnt by her husband. When he came out of the hospital, then one boy came with a tape recorder. He had recorded the voice of Jasbir Kaur and cassette was handed over to ASI Ajay Singh. Jasbir Singh was maltreating the deceased. Sometimes, he used to give beatings and was demanding dowry. Death of Jasbir Kaur was on 26.11.1995.
PW6 Karam Singh stated that Jasbir Kaur was married in the month of February, 1993. Once mother of Jasbir Kaur came to him and told Crl.Appeal No. 425-SB of 1997 5 that there was a dispute of her daughter with her husband. He had gone to the house of the accused but did not enquire as to what was the dispute. On 22.11.1995, he had gone to the house of accused in the morning, but house was found locked.
PW7 Kamaljit Kaur is the complainant, but she failed to support the story. She was declared hostile.
PW8 Surinder Kaur stated that on 22.11.1995, Jasbir Kaur had burnt. She had shifted her to the hospital in a car. On the way, on enquiry, Jasbir Kaur replied that she has committed a mistake and her husband was not present.
PW9 Constable Surinder Singh and PW10 HC Malkiat Singh tendered their affidavits (Ex.PM and Ex.PN), respectively.
PW11 ASI Ajay Singh had partly investigated the case. PW12 Jaswinder Singh stated that parties were known to him. Jasbir Singh used to beat his wife for want of dowry and this fact was brought to the notice of Kamaljit Kaur. He had gone to the house of the accused on the request of members of Panchayat. Kamaljit Kaur had told him that Jasbir Kaur was burnt to death. He had sent Gurdial Singh and Bhagwant Singh to enquire about the incident. Statement of Jasbir Kaur was taped and cassette was handed over to the DSP.
After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent.
Opportunity was given to lead evidence but no defence was led. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was Crl.Appeal No. 425-SB of 1997 6 convicted and sentenced as stated aforesaid.
I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file.
Learned defence counsel for the appellant argued that in the month of February, 1993, deceased was married with the appellant and from this wedlock, there are two issues, i.e., one daughter, aged about 4 months, and one son, aged about 1-3/4 years. As per story, appellant used to misbehave and maltreat the deceased for want of dowry. Deceased was set on fire but no cogent and convincing evidence on the file that appellant used to misbehave and maltreat the deceased for want of dowry. According to the doctor, 90% burn injuries were noticed but there was no external injury. Cause of death was due to burn injuries. Occurrence was in the morning of 22.11.1995, whereas statement of the complainant was recorded on 26.11.1995 at about 11.00 PM in the hospital. If before the occurrence, complainant had the knowledge that appellant used to misbehave and maltreat the deceased for want of dowry, then after visiting the hospital when Jasbir Kaur was unconscious, then complainant should have reported the matter to the police. There was no idea to wait. Statement of complainant was recorded after the death of Jasbir Kaur. After the death, it is very easy for the complainant to level allegation that appellant used to misbehave and maltreat the deceased for want of dowry and harassment was soon before the death. Complainant in her statement dated 26.11.1995 simply stated that whenever deceased came, then told her that appellant used to misbehave and maltreat her for want of dowry. She was also pressurized to bring cash and more dowry. As per her status, she used to make payment. She was fed up from the appellant. In the statement dated Crl.Appeal No. 425-SB of 1997 7 26.11.1995, there is not a word on which date, which article was demanded and in whose presence. Regarding demand of dowry, no complaint to any authority. There was no Panchayat. Evidence is not convincing that cruelty or harassment was on account of dowry soon before the death. Complainant when appeared in Court, then did not support the story. As per PW4 Gurditta Ram, appellant made an effort to extinguish the fire. PW6 Karam Singh stated that complainant came and informed him that there was dispute amongst the deceased and the appellant. PW8 Surinder Kaur stated that she had shifted Jasbir Kaur to the hospital and on the way, on enquiry, deceased told that she has committed a mistake. Suggestion was given to Surinder Kaur that appellant had wrapped the deceased in a blanket and accompanied her to the hospital in the same car. PW5 Surinder Singh is related to the complainant and stated that on 22.11.1995, Harbhajan Singh came and stated that Jasbir Kaur had committed suicide. He along with complainant had gone to Civil Hospital, Hoshiarpur, and had recorded the voice of Jasbir Kaur. Cassette was handed over to ASI Ajay Singh. Appellant used to misbehave and maltreat the deceased for want of dowry. In cross- examination, he admitted that police used to visit hospital from 23.11.1995 to 26.11.1995. Lastly admitted that marriage of Jasbir Kaur with the appellant was simple. Argued that unnatural death in the in-laws house within 7 years from the date of marriage but third ingredient to convict the appellant under Section 304-B IPC is missing because in the statement dated 26.11.1995 after death, no allegation that the appellant used to misbehave and maltreat the deceased for want of dowry . Secondly, cruelty or harassment was soon before the death in connection with demand of dowry. At the most, appellant is liable under Section 306 IPC. Crl.Appeal No. 425-SB of 1997 8
Learned State counsel argued that unnatural death within 7 years in the in-laws house. Before present occurrence, appellant used to misbehave and maltreat the deceased for want of dowry and this fact was brought to the notice of the complainant but complainant while appearing in the Court, then did not support the story because two issues of deceased are with the appellant. Deceased was alone at the house of the appellant and appellant was to explain why deceased had committed suicide when there was no dispute and were residing happily.
Undisputedly, two years earlier to the occurrence in the month of February, 1993, deceased was married with the appellant. Marriage was simple. There was no demand of dowry and from this wedlock, there are two issues, one son, aged about 1-3/4 years, and one daughter, aged about 4 months. According to the story, appellant used to misbehave and maltreat the deceased for want of dowry. Cruelty or harassment in connection with demand of dowry was soon before the death, whereas defence version of the appellant was that deceased had committed suicide. An effort was made to extinguish the fire. Deceased was shifted to the hospital. Now question is whether prosecution story inspires confidence or defence version seems to be more probable than the prosecution story.
Occurrence was in the morning of 22.11.1995. At about 9.20 AM on 22.11.1995, Jasbir Kaur was admitted in Civil Hospital, Hoshiarpur. After admission, intimation was given to the police. On receipt of information, police party had gone to Civil Hospital, Hoshiarpur. On 23.11.1995, application (Ex.PA) was moved requesting the doctor to opine as to whether Jasbir Kaur was fit to make statement or not, but she was declared unfit to make statement. Again on 24.11.1995 and 25.11.1995, Crl.Appeal No. 425-SB of 1997 9 applications were moved requesting the doctor to report as to whether Jasbir Kaur was fit to make statement or not, but again she was declared unfit to make statement. Death was at 4.20 PM on 26.11.1995. Till death, deceased remained unfit to make statement and this fact is clear from the statement of PW1 Dr. Dalip Kumar. Complainant and other relevant witnesses have admitted that police visited hospital from 23.11.1995 to 26.11.1995. According to the statement of complainant dated 26.11.1995 recorded at 11.00 PM, on the basis of which, formal FIR was recorded, allegation of the complainant was that on 22.11.1995 at 7.00 AM, Harbhajan Singh, uncle of the appellant, came and told that deceased was lying admitted in Civil Hospital, Hoshiarpur, in burnt condition. After that, she along with Surinder Singh had gone to the hospital, where Jasbir Kaur was lying admitted in burnt condition. Whenever, Jasbir Kaur came to her parental house, then she used to report that appellant was pressurizing her to bring cash and more dowry. Appellant used to torture her. As per her (complainant) status, she used to pay. She was fed up from the appellant. Statement of the complainant dated 26.11.1995 is silent on which date, which article was demanded. Not a word in the statement that there was a Panchayat or complaint was sent to any authority, except general allegation that appellant pressurized the deceased to bring cash and dowry.
Complainant appeared as PW7 but did not support the story. She was declared hostile and was cross-examined by learned PP but nothing came out of her cross-examination, which could help the prosecution. As per complainant, marriage was two years earlier to the occurrence and no complaint after marriage. Complainant further admitted that her supplementary statement was not recorded.
Crl.Appeal No. 425-SB of 1997 10
PW4 Gurditta Ram stated that at about 7.00 AM on the day of occurrence, he was returning to his house, then had seen the deceased while on fire. He had tried to extinguish fire. Later on, husband of the deceased came and also made an effort to extinguish fire.
PW8 Surinder Kaur stated that she had shifted the deceased to the hospital in a car and on the way, on enquiry, deceased told that she has committed a mistake. Suggestion was given to Surinder Kaur that appellant had wrapped the deceased in a blanket and was in the same car. So, as per suggestion to Surinder Kaur, appellant had shifted the deceased to the hospital.
PW6 Karam Singh as Sarpanch of the Village stated that complainant came to him and reported that her daughter has a dispute with her husband. Karam Singh was also declared hostile. As per statement of Karam Singh under Section 161 Cr.P.C., appellant used to misbehave and maltreat the deceased for want of dowry. So, statement of Karam Singh falsifies the story.
PW5 Surinder Singh is related to the complainant.
Complainant is the sister-in-law of Surinder Singh. In examination-in-chief, Surinder Singh stated that he had gone to the house of the complainant and in the morning on 22.11.1995 at 7.00 AM, Harbhajan Singh came and informed them that Jasbir Kaur has burnt herself by putting kerosene and was admitted in the hospital. After that, he along with Kamaljit Kaur had gone to the hospital. On 25.11.1995, deceased was able to speak and on enquiry, she replied that she was set on fire by her husband. After that, doctor reported that Jasbir Kaur was unable to make statement. He came out of the hospital and recorded the voice of Jasbir Kaur with the help of Crl.Appeal No. 425-SB of 1997 11 tape recorder. Cassette was handed over to ASI Ajay Singh. Appellant used to misbehave and maltreat the deceased for want of dowry but cassette handed over to ASI Ajay Singh is not on the file. No explanation where the cassette has gone. Kamaljit Kaur, complainant, has not stated a word that voice of Jasbir Kaur was recorded by Surinder Singh and cassette was handed over to the police. Kamaljit Kaur did not state a word that in the presence of Surinder Singh, deceased had ever reported that her husband used to misbehave and maltreat her for want of dowry. When deceased did not report to her mother regarding harassment or cruelty for want of dowry in the presence of Surinder Singh, then statement of Surinder Singh that whenever deceased came to her parental house, then reported that appellant used to misbehave and maltreat her for want of dowry is without any evidentiary value. Surinder Singh is related to the complainant but his statement without any corroboration is not sufficient to opine that appellant used to misbehave and maltreat the deceased for want of dowry or cruelty or harassment in connection with demand of dowry was soon before the death. Surinder Singh in examination-in-chief admitted that no complaint was sent to any authority. Police visited hospital from 23.11.1995 to 26.11.1995 but his statement was not recorded. Marriage was simple. If before the occurrence deceased ever informed her parents in the presence of Surinder Singh that appellant used to misbehave and maltreat her for want of dowry, then on 23.11.1995, Surinder Singh should have reported the matter to the police that earlier to the occurrence, deceased used to inform him that appellant used to misbehave and maltreat her for want of dowry.
To convict the appellant under Section 304-B IPC, unnatural death in the in-laws house should be within 7 years. In the present case, Crl.Appeal No. 425-SB of 1997 12 marriage was two years prior to the occurrence. At the time of unnatural death, deceased was in her in-laws house. So, first two ingredients are clear.
Third ingredient to convict the appellant is that cruelty or harassment in connection with demand of dowry was soon before the death. As discussed earlier, third ingredient is missing. No family member of the deceased stated on oath that appellant at any stage had harassed the deceased for want of dowry. Till death, deceased remained unfit to make statement. Complainant or Surinder Singh had the knowledge that before occurrence, whenever deceased came to her parental house, then informed them that she was subjected to cruelty or harassment in connection with demand of dowry soon before death. If deceased was unfit to make statement on 23.11.1995, then Kamaljit Kaur or Surinder Singh should have reported the matter to the police on 24.11.1995 or 25.11.1995. Police came to the hospital but again no report by the complainant or Surinder Singh. Death was on 26.11.1995 at 4.20 PM but before death, no report to the police. After death, at about 11.00 PM on 26.11.1995, Kamaljit Kaur reported to the police but in the statement, vague allegation that appellant used to misbehave and maltreat the deceased for want of dowry. No external injury was noticed. Death was due to burn injuries. Appellant was in the Police Department. Recorded version of the deceased is not on the file for the reasons best known to the prosecution. Possibility of suicide keeping in view the action of the appellant being police employee cannot be ruled out.
In view of all discussed above, appellant is liable under Section 306 IPC instead of Section 304-B IPC.
Occurrence was in the month of November, 1995, and at that Crl.Appeal No. 425-SB of 1997 13 time, appellant was 27 years' old. After conviction, he is out of service. Appellant has two issues from the womb of deceased, i.e., one son, aged about 1-3/4 years, and one daughter, aged about 4 months. Both the children are in the custody of the appellant. Appellant has already undergone one year, eight months and twenty one days.
Keeping in view the circumstances of this case, appellant is directed to undergo imprisonment already undergone (one year, eight months and twenty one days) under Section 306 IPC instead of Section 304- B IPC.
For the reasons recorded above, appeal without merit is dismissed with modification on the point of conviction and sentence.
18.1.2011 ( JORA SINGH ) pk JUDGE