Punjab-Haryana High Court
Balkar Singh vs State Of Punjab on 1 November, 2011
Author: A.N.Jindal
Bench: A.N.Jindal
Criminal Appeal No.815-SB of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.815-SB of 1999
Date of Decision 01.11.2010
Balkar Singh
...... Appellant
VERSUS
State of Punjab
...... Respondent
CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL
Present: Mr.Anmol Partap Singh Mann, Advocate,
for the appellant.
Mr.Amit Chaudhary, Asstt. Advocate General, Punjab,
for the respondent-State.
*****
A.N.JINDAL, J:
Out of the four accused Kewal Singh, Mohinder Kaur, Gurbachan Singh were acquitted whereas Balkar Singh was convicted under Section 304-B IPC for causing dowry death and was sentenced to undergo rigorous imprisonment for a period of eight years vide judgment dated 17.08.1999, passed by Sessions Judge, Hoshiarpur.
The case has been registered on the statement of Taqdir Singh son of Karnail Singh resident of village Bhaura Distt. Nawanshehar wherein he disclosed that his sister Daljit Kaur was married to Balkar Singh about two years piror to the death. Immediately after the marriage, Balkar Singh (her husband), Kewal Singh (husband's brother), Gurbachan Singh (father- in-law) and Mohinder Kaur (mother-in-law) started maltreating her on account of bringing inadequate dowry. On coming to know about the plight of his sister, Taqdir Singh complainant (herein referred as 'the complaiannt') alongwith Sukhdev Singh and Lashkar Singh went to Baldev Singh, Criminal Appeal No.815-SB of 1999 2 mediator of the marriage and after taking him, went to the house of the accused and pleaded for not maltreating and misbehaving the deceased but the behaviour of the accused was very rude. They levelled various type of allegations and stated that unlike the other people, the complainant had given nothing in the marriage. They demanded Rs.1,00,000/- from the complainant for sending Balkar Singh abroad. Complainant came back to his house. However, Daljit Kaur (deceased) visited them after a few days and disclosed her woeful story and compelled the complainant and other family members to pay something if they wanted to see her happy. Sometimes thereafter, the complainant alongwith Daljit Kaur and Sukhdev Singh visited the house of her in-laws and paid a sum of Rs.20,000/- and further recorded his inability to make the arrangements for more money. The accused had also demanded a buffalo two months prior to the occurrence which demand also could not be met with. On 05.01.1998 the complainant came to know that accused had pressed her neck and murdered her (Daljit Kaur) as they could not satisfy their demand of dowry. The accused after killing her had projected that she had committed suicide, consequently, the complainant lodged the FIR, as a result of which investigation was set in motion.
The Station House Officer conducted the inquest; prepared the site plan of the place of occurrence and took into possession a rope and a ceiling fan vide recovery memo Ex.PF which was attested by PWs. He recorded the statements of witnesses and arrested the accused. The completion of investigation was followed by a report under Section 173 Cr.P.C. against Balkar Singh alone. Lateron, on the application under Section 193 Cr.P.C., vide order dated 02.04.1998, the acquitted accused Criminal Appeal No.815-SB of 1999 3 were also summoned by the Court.
All the accused persons were charged under Section 304-B IPC and in the alternative under Section 302 IPC. However, they denied the charges and claimed trial.
The prosecution, in order to substantiate the charges, examined Dr.Parampal Singh Sandhu (PW1), who conducted the autopsy on the dead body of Daljit Kaur on 05.01.1998 at 4:00 p.m and observed as under:-
"The length of the body was 5'-5". It was moderately built and moderately nourished. Cynosis was present. Face was markedly congested and conjectivae were suffused. The post- mortem lividity was present on the back and fixed, except areas of contact. The rigor mortis was present throughout the body except muscles of toes. Neither blood or froth was coming out of any of the orifices, nor there was any smell from the mouth. There was no sign of decomposition externally."
He found the following injuries on her body:-
"A brownish parchmenttised ligature mark, 32.5 cms long encircling the neck, deeply grooved on the back and left side and shallow and faint on the right side of neck was present. It was 0.7 cms in its broadest and 0.3 cms in its narrowest part. At front, it was 2.5 cms above the laryngeal prominance in the centre 6.5 cms below the left ear lobule, 8 cms below the occipital protrudence, at back rising on the right side to be at 4.5 cms below the right lobule.
An abrasion of reddish brown colour measuring 2 cms x 7 cms extending from the superior border of ligature mark was present on right lower jaw at the level of angle of lower jaw."
On dissection, no visible infiltration was present above and below the ligature mark, underlying muscles showed no infiltration of blood, hyoid was normal lateral tears in the intime of internal and external carotid artery on the right side were present.
Criminal Appeal No.815-SB of 1999 4
Petechial hemorrhages were present beneath the scalp, meninges and brain were congested and petechial hemorrhages were present in the brain matter.
Both lungs were congested. Heart showed petechial hemorrhage on the pericardium and it was congested and full of dark fluid blood. Stomach was empty. All other organs were congested. Uterus was empty. There was no sign of injury to the external genetalia."
The doctor opined the cause of death in this case was asphyxia as a result of constriction of the neck. He also opined that the injuries on her body were ante-mortem and were sufficient to cause death in the ordinary course of nature. He further opined that the period between death and post-mortem was within about 12 to 24 hours and that the possibility of death having been caused by hanging could not be ruled out. Besides Taqdir Singh (PW2), Baldev Singh, mediator of the marriage (PW3), has also supported the prosecution version in all minute details; Paramjit Singh (PW4) is the draftsman; Constable Des Raj (PW5) is a formal witness; Sub Inspector Harbhajan Dass (PW6) is the investigating officer and Head Constable Gurdev Singh (PW7) had gone with the dead body of Daljit Kaur for inquest report Ex.PC.
When examined under Section 313 Cr.P.C., the accused persons denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. The accused Balkar Singh further explained that on 04.01.1998, deceased Daljit Kaur was insisting to go to the house of Nachhattar Singh, her brother-in-law, to which he objected and she had also been particularly stopped from visiting his house, therefore, due to frustration, she committed suicide. He further stated that he had also purchased Kissan Vikas Patras of Rs.5,000/- in her name. He Criminal Appeal No.815-SB of 1999 5 neither demanded any dowry nor harassed the deceased. His brother was a witness in a criminal case against the father of the deceased and in that case he was acquitted. The other accused also denied all the circumstances appearing against them and pleaded their false implication.
In defence, they examined Constable Yashpal No.999 (DW1), who disclosed that FIR No.108 dated 10.07.1979, Police Station Hariana was registered at the instance of Gulzar Singh against Gurbachan Singh, Sucha Singh son of Bhulla Singh, Darshan Singh son of Sardar Jai Singh. Gurlal Singh, Sarpanch (DW2) has also supported the cause of the accused, DSP Ajaib Singh (DW3), has proved the inquiry report and Mohinder Singh (DW4), has proved from the record that Kissan Vikas Patars worth Rs.5,000/- were issued on 12.09.1997 in the name of Balkar Singh and Bharpur Kaur.
The trial ended in conviction of Balkar Singh. However, the remaining accused were acquitted.
Arguments heard. Record perused. It has been proved from the testimonies of Taqdir Singh and Baldev Singh that the deceased died in the house of her in-laws within seven years of her marriage and that the accused had been demanding dowry. Challenge has been made by the counsel with regard to the demand of Rs.1,00,000/- allegedly made by the accused and it has been urged that there is no evidence to prove such demand. This much stressed contention lacks merit as it was mentioned in the complaint Ex.PD that a sum of Rs.1,00,000/- was demanded by the accused for sending Balkar Singh accused abroad. It is not to be seen whether the said amount was paid or a lessor amount of Rs.20,000/- was paid in order to avoid maltreatment but the question is whether the accused Criminal Appeal No.815-SB of 1999 6 was raising such demand and harassing her on that account. Taqdir Singh (PW2) in his evidence has stated that he had gone alongwith Sukhdev Singh to his deceased sister's house and had paid Rs.20,000/- to the accused while pleading that she should not be harassed. Baldev Singh (PW3) has also corroborated the fact with regard to payment of Rs.20,000/-. Thus, the aforesaid evidence traces back to the assumption that the accused were compelling the deceased to bring money from her parents.
Learned counsel for the appellant has further tried to belie the prosecution version with regard to the demand of buffalo. The counsel has urged that though Taqdir Singh (PW2) while appearing in the witness box has stated that the demand of buffalo was also raised by the accused and they had made the deceased to understand that the said demand would be fulfilled whenever the arrangements are made whereas in his statement Ex.PD made before the police, he has stated that two months prior to the incident demand of buffalo was made but he had shown his inability to fulfil the same. No doubt, Taqdir Singh (PW2) has made a little improvement in his statement but the fact remains that the demand of dowry in the shape of buffalo was also made by the accused.
As regards the harassment "soon before her death", learned counsel for the appellant has contended that the prosecution has failed to establish any nexus between the suicide and the alleged demand, as such the element of "soon before her death" does not stand established and the case is not covered under Section 304-B IPC, though it may be covered under Section 498-A IPC. He has referred to the statement of Taqdir Singh that the last demand from the deceased was regarding the buffalo. In this regard, reliance has been placed on the judgment delivered in case Sham Lal Criminal Appeal No.815-SB of 1999 7 versus State of Haryana 1997(3) RCR 85. Having gone through this judgment, it is based on its own facts and is distinguishable to the facts of the present case. Death in this case took place within two years of marriage. During the aforesaid period, the acts of cruelty on account of demand of dowry continued in operation. The accused was more interested to raise demands while putting his matrimonial status on the back seat. Unable to comment upon the acquittal of other accused, as no appeal against their acquittal is before me, it would be suffice to say that treating the marriage with the deceased as a good bargain for flying to a foreign country, the accused started raising the demand of money. Since the parents of the deceased were not in a position to meet this demand, the deceased had to face the mutiny of the accused, as such, the demand of money cannot be excluded from the definition of dowry.
Similarly, the words "soon before her death" cannot be construed to mean quite near to her death but the same could be assessed in the circumstances of every case while applying the nexus and proximity test. The meaning of words "soon before death" have been elaborated in the judgment delivered in case Satvir Singh versus State of Punjab 2001 (4) RCR (Crl.) 355 which reads as under:-
23. "It is not enough that harassment or cruelty was caused to the woman with a demand for dowry at some time, if Section 304-B is to be invoked. But it should have happened "soon before her death". The said phrase, no doubt, is an elastic expression and can refer to a period either immediately before her death or within a few days or even a few weeks before it.
But the proximity to her death is the pivot indicated by that expression. The legislative object in providing such a radius of time by employing the words "soon before her death" is to emphasize the idea that her death should, in all probabilities, Criminal Appeal No.815-SB of 1999 8 have been the aftermath of such cruelty or harassment. In other words, there should be a perceptible nexus between her death and the dowry related harassment or cruelty inflicted on her. If the interval elapsed between the infliction of such harassment or cruelty and her death is wide, the Court would be in a position to gauge that in all probabilities the death would not have been the immediate cause of her death. It is hence for the Court to decide, on the facts and circumstances of each case, whether the said interval in that particular case was sufficient to snuff its cord from the concept "soon before her death. Indisputably, in order to attract the said provision, it is imperative on the part of the prosecution to establish that the cruelty or harassment has been meted out to the deceased "soon before her death". There cannot be any doubt or dispute that it is a flexible term. Its application would depend upon the factual matrix obtaining in a particular case. No fix period can be indicated therefor. It, however, must undergo the test known as 'proximity test'. What, however, is necessary for the prosecution is to bring on record that the dowry demand was not too late and not too stale before the death of the victim."
A similar question came up for consideration in Thakkan Jha & others versus State of Bihar 2006 (2) RCR Crl. 67 , wherein this Court held:
"This is so because the expression used in the relevant provision is"soon before". The expression is a relative term which is required to be considered under specific circumstances of each case and no straitjacket formula can be laid down by fixing any time-limit. The expression is pregnant with the idea of proximity test. It cannot be said that the term "soon before"
is synonymous with the term "immediately before". This is because of what is stated in Section 114 Illustration (a) of the Evidence Act. The determination of the period which can come Criminal Appeal No.815-SB of 1999 9 within the term "soon before" is left to be determined by the courts, depending upon the facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link."
Yet again in Kamesh Panjiyar alias Kamlesh Panjiyar versus State of Bihar 2005 (1) RCR (Crl) 861, the Apex Court observed as under:-
"The expression 'soon before' is very relevant where Section 113B of the Evidence Act and Section 304-B IPC are pressed into service. Prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case presumption operates. Evidence in that regard has to be led by prosecution. 'Soon before' is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. The expression 'soon before her death' used in the substantive Section 304-B IPC and Section 113B of the Evidence Act is present with the idea of proximity test."
In Ram Badan Sharma vs. State of Bihar 2006 (4) RCR (Crl.) 104 wherein the Apex Court observed as under:-
"There are three main ingredients of this offence: (a) that, there is a demand of dowry and harassment by the accused on that count; (b) that, the deceased died; and (c) that, the death is under unnatural circumstances within seven years of the marriage. When these factors were proved by reliable and cogent evidence, then the presumption of dowry death under Section 113B of the Evidence Act clearly arose. The Criminal Appeal No.815-SB of 1999 10 aforementioned ingredients necessarily attract Section 304-B IPC. Section 304-B is a special provision which was inserted by an amendment of 1986 to deal with a large number of dowry deaths taking place in the country. In the instant case, if the circumstances of the case are analyzed on the touchstone of Section 304B IPC, all the three basic ingredients of Section 304B IPC are present in the instant case. There has been persistent demand of dowry and harassment, humiliation and physical violence and beating by the husband and her in-laws. The deceased died under unnatural circumstances within seven years of the marriage."
In the instant case, Daljit Kaur had died within the period of two years of marriage. During this period, neither the accused stopped their behaviour nor condoned the demands raised by them. Last demand of buffalo was raised just within two months of the marriage and same having not been met was still subsisting. Had these demands been not raised, she would not have committed suicide. The interval between the demand and death was not sufficient to snuff its cord from the concept "soon before death". It may further be noticed that though the prosecution has led sufficient evidence to prove the demand of dowry as a factor leading to commission of suicide yet the accused has failed to prove that they had differences on account of the fact that he was disallowing her to go to the house of Nachhattar Singh. Again the accused may not have been able to prove this defence yet the fact remains that the accused had created such circumstances for the deceased that she had no other way out except to end her life.
As regards discrepancies, the minor discrepancies in the statement of the witnesses hardly matter in such cases where presumption under Section 113-B of the Act is attached and the case is based on the Criminal Appeal No.815-SB of 1999 11 testimonies of independent witnesses. The witnesses, specifically those, who are uneducated and comes from poor strata, are not supposed to remember and reiterate any event and describe the particular day and month. The Apex Court observed in case Govinda Raju vs. State of Karnataka (2009) 14 Supreme Court Cases 236 as under:-
"The High Court has appreciated the evidence very deeply and in our opinion, the Sessions Judge had gravely erred in not accepting the evidence of PW1 without any justifiable reason. It is a basic principle that the evidence of witness has to be appreciated as a whole when the evidence is of an ordinary witness, who is not much educated and comes from a poor strata of society not having the advantage of education. The Court has to keep in mind all these aspects. The witness is not expected to remember every small thing, more particularly when he faces the shock of the untimely death of his near relative."
In defence, the accused have examined four witnesses but none of them could be treated as sufficient to disbelieve the prosecution version. Constable Yashpal No.999 (DW1) has proved the FIR No.108 dated 10.07.1979 registered at the instance of Gulzar Singh against Gurbachan Singh and Sucha Singh son of Bhulla Singh, Darshan Singh son of Sardar Jai Singh were the witnesses. But this FIR Ex.DA does not lend anywhere to hold that the accused did not misbehave, maltreated or harassed her on account of demand of dowry. Though, Gurlal Singh (DW2) has stated that accused Balkar Singh never demanded dowry from his wife Baljit Kaur but testimony of this witness is of no weight. He never appeared before the Investigating Officer to depose in favour of the accused, as such, his statement is of an after thought. He states that Panchayat of their village had given a panchayati-nama to the police disclosing that the accused never Criminal Appeal No.815-SB of 1999 12 maltreated the deceased but he does not remember if the said panchayati- nama was ever signed by the persons belonging to the village of the complainant. As regards the inquiry report recorded by DSP Ajaib Singh (DW3), it may be observed that the inquiry report is of no consequence as the Court holding the trial is to decide the case independently on the basis of the evidence before it, therefore, mere fact that DSP Ajaib Singh (DW3) found Gurbachan Singh, Mohinder Kaur and Kewal Singh innocent, is of no consequence. Any way, the trial Court has also acquitted Gurbachan Singh, Mohinder Kaur and Kewal Singh of the charges framed against them. Mohinder Singh (DW4) has proved the Kisan Vikas Patras purchased in the joint name of Balkar Singh and Bharpur Kaur his wife but as a matter of fact name of the wife of Balkar Singh accused is Baljit Kaur, therefore, this piece of evidence also does not nullify the prosecution version.
The deceased died within two years of marriage and sufficient evidence has been led in order to establish that the accused was torturing, maltreating and harassing the deceased for demand of dowry and had created such circumstances that she could not think anything else but to end her own life. The impugned judgment appears to be well founded and well reasoned and it does not suggest any such defect or irregularity, warranting interference by this Court.
For the aforesaid reasons, this appeal, being devoid of any merit, is dismissed.
(A.N.Jindal) Judge 01.11.2010 mamta-II