Punjab-Haryana High Court
Jarnail Singh And Another vs State Of Punjab on 19 January, 2009
Criminal Appeal No.252-SB of 1998 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.252-SB of 1998
Date of Decision:19.01.2009
Jarnail Singh and another .....Appellants
Vs.
State of Punjab .....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Sandeep Mann, Advocate for
Mrs. Baljeet Mann, Advocate for the appellants.
Mr. T.S. Salana, DAG, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence dated 18.3.1998 passed by the Court of learned Additional Sessions Judge, Hoshiarpur whereby he convicted and sentenced the accused Jarnail Singh and Rajwant Kaur alias Dhanto to undergo rigorous imprisonment for seven years each under Section 304-B of IPC and further sentenced each of them to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- and in default of payment of the same, the defaulter to undergo further rigorous imprisonment for six months under Section 498-A of IPC and further sentenced each of them to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- and in default of the same, the defaulter to further undergo rigorous imprisonment for six months under Section 201 of IPC with a further direction that all the substantive sentences shall run concurrently and acquitted the accused Piara Singh as well as Darshan Kaur by giving them benefit of doubt.
Criminal Appeal No.252-SB of 1998 -2-
The facts in brief are that on 1.8.1994, Karnail Singh complainant lodged FIR stating that Balbir Kaur alias Bholi, the daughter of his maternal uncle Mohinder Singh deceased was married to Jarnail Singh. His father gave sufficient dowry to her according to his capacity. Her in- laws started harassing her and told her that she had brought inadequate dowry and demanded scooter from her. She told about the same to Karnail Singh. She was sent to her in-laws' house after prevailing upon her that they being poor persons could not meet this demand. On this, the accused Jarnail Singh husband, Rajwant Kaur mother-in-law, Piara Singh father-in- law and Darshan Kaur sister-in-law gave beatings to her for not bringing the scooter. They told her that until she brings scooter, she should not come to their house. Being fed up with their behaviour, she came to Karnail Singh's house and stayed there for about two and a half months. Her in-laws did not come to take her back. On receipt of message from Piar Kaur, who had acted as a mediator in the marriage that there was a marriage of Darshan Kaur - sister-in-law of Balbir Kaur, Karnail Singh along with Charanjit Singh Sarpanch of Village Shahu De and Tarsem Lal, member Panchayat of Kaluwal left Balbir Kaur in her in-laws' house and requested them that they cannot meet their demand but her in-laws continued harassing her. Karnail Singh and Charanjit Singh Sarpanch went to the house of her in-laws on one or two occasions for imploring them. On the aforesaid date, around 5/ 6 P.M., Karnail Singh received a message that Balbir Kaur alias Bholi has died and his dead body has been cremated by her in-laws. He along with his brother Jaswinder Singh reached Village Bagroi. At that time, her pyre was burning. After leaving Jaswinder Singh there, Karnail Singh went to the Police Station to lodge the report. He was of the firm belief that either her Criminal Appeal No.252-SB of 1998 -3- in-laws had given some poison to her or she had consumed some poisonous substance due to the harassment caused by her in-laws. On the basis of Karnail Singh's statement, the case was registered. The accused were arrested. After completing usual formalities, and on completion of investigation, the charge-sheet was laid in the Court of Sub Divisional Judicial Magistrate, Dasuya. Vide his order dated 26.10.1994, he committed the case to the Court of Session for trial of the accused. All the four accused were charged under Sections 498-A/304-B/ 201 of IPC to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined Karnail Singh PW1, SI Lakhbir Singh PW2, Kulwant Kaur PW3, HC Jarnail Singh PW4, Surinder Kumar Draftsman PW5, Constable Balwinder Singh PW6, MHC Sewa Singh PW7, Constable Jagdish Ram PW8, Constable Parnam Singh PW9, Tarsem Singh PW10, Jaspal Singh PW11, SI Shamsher Singh PW12 and closed its evidence.
When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing in the prosecution evidence against them. Jarnail Singh accused put forth that it was a simple marriage, whereafter they both started living separately by maintaining separate mess. Fauja Singh father of Karnail Singh PW died on 15.8.1992. He (Jarnail Singh) never demanded scooter, cash or dowry from Balbir Kaur nor he ever harassed or maltreated her for the same. On 1.8.1994, Balbir Kaur died a natural death. He sent intimation to her brothers at Village Mirpur. In the presence of her relatives, as well as respectable of his village, her dead body was cremated. Later on, due to suspicion, this false case was registered against him. He has a separate ration card from rest of the family members. Criminal Appeal No.252-SB of 1998 -4- He paid chula tax separately from his family members. Piara Singh accused has come up with the plea that he is leading a retired life. He never maltreated Balbir Kaur nor demanded scooter or anything. He was living separately at the time of her natural death. Jarnail Singh along with his wife Balbir Kaur was residing separately from other members of his family. They were separate in mess and lodging. Rajwant Kaur accused has set forth that it was a simple marriage. She never demanded scooter, cash or dowry. Jarnail Singh was married with Balbir Kaur on 6.4.1993 and since then, they were living separately and have separate mess and lodging. Darshan Kaur accused has stated that she was married with Surat Singh on 15.5.1994 and was residing in her in-laws' house at Village Hamja. He never maltreated Balbir Kaur nor demanded scooter or anything. She was living in the house of her in-laws at the time of natural death of Balbir Kaur. In their defence, they examined Sain Dass, DW1, Tara Singh DW2, Davinder Singh Inspector DW3, Subhash Chander Bhanot DW4, Mehnga Singh DW5 and closed their defence evidence.
After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused Jarnail Singh as well as Rajwant Kaur alias Dhanto as noted supra. Feeling aggrieved with their conviction/ sentence, they have preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Mr. Sandeep Mann, Advocate on behalf of the appellants canvassed at the bar that as emanates from the evidence on record Rajwant Kaur and Piara Singh were living separately from Jarnail Singh and his wife Criminal Appeal No.252-SB of 1998 -5- Balbir Kaur. Rajwant Kaur mother-in-law of the deceased aged about 80 years has been wrongly convicted. There is no evidence on the record to prove that the appellants used to ill-treat the deceased to coerce her to meet their demand of scooter soon before her death.
To controvert these submissions, Mr. T.S. Salana, DAG, Punjab maintained that the conviction of the appellants is based on luculent evidence and that being so, no interference is warranted.
I have given a deep and thoughtful consideration to the rival contentions.
In order to attract Section 304-B of IPC, the following ingredients are to be satisfied:-
"(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.
(2) Such death must have occurred within 7 years of the marriage.
(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or any relative of her husband; and (4) Such cruelty or harassment must be in connection with the demand of dowry."
It surfaces in the cross-examination of Karnail Singh PW1 Ace witness that "I cannot say if my sister (referring to the deceased) was given poison or she died a natural death." It is apt to be borne in mind that the appellant Jarnail Singh has set up that on 1.8.1994, Balbir Kaur died natural death and he sent intimation to her brothers at Village Mirpur and in the Criminal Appeal No.252-SB of 1998 -6- presence of her relatives, her dead body was cremated. Karnail Singh in his examination-in-chief went on to say that "I doubt that poison was given to Balbir Kaur." Palpably he has not denied the natural death of the deceased. The above-referred evidence squarely fits in with the defence plea. It is also in Karnail Singh's cross-examination that "It is correct that Balbir Kaur and Jarnail Singh were residing in one room." It is in his further cross- examination that "I did not state before the police, while making my statement that after one year from the marriage, the accused started demanding scooter from the deceased." He has testified in his examination- in-chief that "After one year from the marriage, all the accused present in the Court were demanding scooter." If the accused had really started demanding the scooter after about one year of the marriage, by all probabilities this witness might had stated so in his police statement. Thus obviously, he has introduced material improvements. It is also in his cross- examination that "I did not move any application or lodge any complaint before the Panchayat of our village or of the village of the accused or before any police authority that the accused were demanding scooter or accused were giving beatings to the deceased Balbir Kaur. If the appellants along with others were exerting pressure upon the deceased to fetch scooter from the complainant party, the latter without any hesitation would have reported such matter to the Panchayat of their village as well as the village of the accused. There is nothing to indicate that the complainant side had ever lodged any complaint either with the police or with the Panchayat of the Village of the accused about the demand of scooter. An identical observation was made in re: Hari Singh v. State of Punjab, 2002(3) Recent Criminal Reports (Criminal) 541.
Criminal Appeal No.252-SB of 1998 -7-
It is in the examination-in-chief of Karnail Singh (sic.) that "I along with my brother Jaswinder Singh member Panchayat and other ladies went to the house of the accused and reached there at 7:00 P.M. Cremation of my sister was already done. We left Jaswinder Singh in the cremation ground. I went to the police Station Mukerian for registration of the case." It is in his cross-examination that "When we reached the cremation ground, none from the village was present in the cremation ground." A suggestion has been put to this witness that Balbir Kaur died a natural death and the cremation was done in their presence in the evening. Kulwant Kaur PW wife of PW Karnail Singh has solemnly affirmed that "on the day of death, I reached at 11:00 A.M., in the morning of 1.8.1994 at the house of the accused. Balbir Kaur was lying on the ground and was struggling with her life. She asked me to take her to hospital. She was smelling for some medicine. All the accused present in the Court were present in the house. None of the accused took her to hospital. She died in the Court yard at 11:30 A.M. No message was sent by the accused to my in-laws. I was asking them not to cremate her till the arrival of my husband and his brothers but the accused did not listen to me and they had cremated the dead body of Balbir Kaur." A careful delving into the testimony of her husband Karnail Singh PW would reveal that he has nowhere stated that he had sent his wife to the house of the accused before their departure. From the above extracted evidence of Karnail Singh PW, it transpires that he along with his brother Jaswinder Singh and women folk had gone to the house of the accused collectively. It is thus deducible from this evidence that his wife also went in their company and not ahead of them. It is in her (Kulwant Kaur) PW cross-examination that "I made a statement before the police that Criminal Appeal No.252-SB of 1998 -8- on 1.8.1994 at the time of my arrival in the house of the accused, Balbir Kaur was lying in the courtyard of the accused and she was struggling with her life." On being confronted with her police statement Ex.DA, it was not found so recorded therein. It clearly indicates that she has introduced a new story that she had reached the house of the accused before the arrival of her husband in the cremation ground and she had seen the deceased struggling with her life in the courtyard of her in-laws' house. Had she reached in the house of the accused at 11:00 A.M., in the morning of 1.8.1994, this fact would have certainly been mentioned in her statement Ex.DA. It is in her further cross-examination that "I do not know if I made a statement to the police that I reached in the house of the accused at 11:00 A.M., and she was crying at that time and thereafter, she died at 11:30 A.M. I had also stated that there was smell of medicine from the mouth of Balbir Kaur." When she was confronted with her statement Ex.DA, it was not found so recorded therein. Thus obviously at every step, she has made material improvements. According to Kanail Singh PW when they reached in the cremation ground, none from the village was present in the cremation ground whereas his wife Kulwant Kaur (sic.) has deposed in her cross-examination that "Members of the Panchayat along with the accused and other inhabitants of the village were present at the time of cremation." The rival theory of defence put forth by the accused is that indeed Balbir Kaur died a natural death and her dead body was cremated in the presence of Karnail Singh and others including respectables of the village. This version assumes greater importance in view of the above admission of Kulwant Kaur PW that members of the Panchayat along with the accused and other inhabitants of the village were present at the time of cremation. It is thus discernible that in fact the Criminal Appeal No.252-SB of 1998 -9- cremation took place in the presence of the complainant party as well as members of the Panchayat apart from the accused. If the complainant party suspected any foul play in her death, they would have left no stone unturned in calling the police immediately to resist the cremation of the dead body. It is also in her (Kulwant Kaur) cross-examination that "I have been visiting the house of the deceased after every fortnight." If so, presumably she was aware of the things going on in the house of the deceased. If the accused party had been maltreating or ill-treating her with an end in view to force her to bring scooter, this fact would have come to her (Kulwant Kaur PW) knowledge during her regular fortnightly visits. Kulwant Kaur (sic.) further spills the bean by deposing in her cross-examination that "I did not invite or raise a raula to attract any body from the neighbourhood, when the deceased was struggling with her life. I did not contact any neighbourer or Sarpanch of the village to take her to hospital, when she was struggling with her life. I remained sitting for half an hour with the deceased when she was struggling with her life." Had she been there at the alleged time, in the natural course of her conduct, she by all probabilities would have made arrangement to take the deceased to some doctor. In the event of resistance from the side of the accused, she would have raised hue and cry to attract the neighbours or brought this incidence to the notice of the Sarpanch and other respectables of the village. She by no stretch of speculation would have been a silent or mute spectator to the stated struggle of the deceased, when the latter was oscillating between life and death. Thus, the evidence of Kulwant Kaur too fails to inspire confidence.
The sum and substance of the evidence of Tarsem Singh PW10 is that Karnail Singh PW had also informed him prior to 1.8.1994 that the Criminal Appeal No.252-SB of 1998 -10- accused used to maltreat Balbir Kaur deceased as they were demanding scooter and that when he along with other members of the Panchayat went to their (referring to the accused) house, they found that the pyre was burning. This evidence can be interpreted to mean that the pyre was burning in the house of the accused whereas according to Karnail Singh as well as Kulwant Kaur PWs the deceased was cremated in the cremation ground. It is in the cross-examination of this witness that "No resolution was passed in the Panchayat. I did not convene the assembly of the Panchayat regarding the harassment of Balbir Kaur. Karnail Singh PW did not move any application to our Panchayat in this respect. Matter was not reported to the police regarding the harassment by me or any body." If Karnail Singh had verily reported the alleged harassment to this witness, in turn, it was obligatory upon the latter being a member of Panchayat to get a resolution transacted in this behalf. In the absence of any cogent evidence, it is very difficult to say that Karnail Singh PW had narrated the above facts to this witness. So, the evidence of this witness is also not reliable. It is in the evidence of Jaspal Singh PW11 that "On 2.8.1994, I was present in my house. Piara Singh s/o Mansha Singh, Balwant Kaur w/o Piara Singh, Jarnail Singh @ Kala s/o Piara Singh came to my house and told me that Balbir Kaur has died and police is searching them. All the accused told me collectively that there was dispute with regard to the dowry with Balbir Kaur @ Bholi. That is due to which she had died. They told that Balbir Kaur consumed poisonous medicine. On 5.8.94 I produced the accused before SI Shamsher Singh. All the accused told me about this fact collectively." It appears as if this witness has been introduced to prove that the accused had made extra judicial confession before him. Ostensibly, he Criminal Appeal No.252-SB of 1998 -11- has nowhere stated that the accused had confessed before him that they were demanding scooter from the deceased and they brought about the situation to such a boil, which forced her to commit suicide. Towards the end of his cross-examination, he has deposed that "I am not related to the accused, being relative of complainant party." Thus, he being a relation of the complainant party, it was not difficult for the latter to procure his services to depose in the above referred manner. As such, his testimony is also not free from doubt. On analysing the entire evidence, it emerges out that the nexus between the death and the alleged dowry related harassment is not established.
In re: Daulat Singh v. State of Punjab, 2008(3) Recent Criminal Reports (Criminal) 305 (P&H), the deceased committed suicide. The prosecution version that the accused demanded scooter was not believed. Adverting to the facts of the instant case, it cannot be said with absolute certitude that the death have been caused otherwise than under normal circumstances for the simple and obvious reason, it is own evidence of the complainant Karnail Singh that "I cannot say if my sister was given poison or she died a natural death." The dead body was not got subjected to post-mortem examination. So, the cause of death is uncertain. Further, there is no cogent convincing and clear evidence leading to an irresistible conclusion and an inescapable inference that soon before her death, the deceased was subjected to cruelty or harassment by the accused- appellants and such cruelty or harassment was in connection with the demand of scooter. It is in the statement of Karnail Singh (sic.) that "I along with Tarsem Singh, Member Panchayat and Sarpanch Charanjit Singh went to the house of the accused after 5 or 7 days from sending Balbir Kaur with Criminal Appeal No.252-SB of 1998 -12- Piara Singh. On that day, I made a request to Piara Singh that we are not in a position to give the scooter due to financial weakness. At that time, none of the accused said anything to us on 1.8.1994 we came to know about the death of Balbir Kaur in the evening at about 6:00 P.M." This evidence is clincher towards the fact that soon before death the alleged demand was not reiterated. For a little while, if it is assumed that the demand of scooter was raised by the accused, nonetheless, to the utter dismay of the prosecution, this demand does not fall within the ambit of dowry. Axiomatically, the ingredients of Section 304-B of IPC are not satisfied. The prosecution evidence also falls short of making out the offence under Section 498-A of IPC.
In view of the above discussion, this appeal succeeds and is accepted, setting aside the impugned judgment/ order of sentence. The appellants are hereby acquitted of the charged offence.
January 19, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes