Punjab-Haryana High Court
Sikander Singh vs State Of Punjab on 26 April, 2010
Author: Nirmaljit Kaur
Bench: Nirmaljit Kaur
CRA No. 1752 SB of 2008 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
--
CRA No. 1752 SB of 2008
Date of decision: 26.04.2010
Sikander Singh ........ Appellant
Versus
State of Punjab .......Respondent (s)
Coram: Hon'ble Ms Justice Nirmaljit Kaur
-.-
Present: Mr. APS Deol, Senior Advocate with
Mr. Davinder Bir Singh, Advocate
for the appellant
Mrs. Ravinder Kaur Nihalsinghwala, Addl. A.G. Punjab
for the respondent - State
-.-
1. Whether Reporters of local papers may be
allowed to see the judgement?
2. To be referred to the Reporter or not?
3. Whether the judgement should be reported in
the Digest?
Nirmaljit Kaur, J.
This is an appeal against the judgement dated 04.08.2008 passed by the learned Additional Sessions Judge, Ludhiana, holding guilty and convicting the appellant under Sections 304 B and 498-A of the Indian Penal Code.
The facts as recorded by the Additional Sessions Judge, Ludhiana on the basis of the prosecution story are that "Sukhdev Singh suffered statement before SI-Arvind Puri alleging that Balbir Kaur daughter of his elder brother - Ram Dass was married about 6-7 months back with Sikander Singh son of Jang Singh, Ramdasia, resident of CRA No. 1752 SB of 2008 2 Rajewal. At the time of marriage sufficient dowry articles according to their capacity were given. However, after two months of the marriage, her father-in-law Jang Singh, mother-in-law Gurdev Kaur, younger brother of her husband Talwinder Singh started harassing her on account of bringing less dowry. Whenever she came to visit village Narike, she had been alleging that in laws were harassing her. About two months back when Balbir Kaur had come to see her parents, she had stated that she will not go back to her in-laws house. Then they had a talk with Ravinder Singh mediator. He gave assurance that he will take responsibility of in-laws of Balbir Kaur. They should sent her to her in- laws house. Accordingly, she was sent to her in-laws house. Then, a telephone call was received from Balbir Kaur at the house of Lal Singh some days prior to the occurrence in which she told Sukhdev Singh that she is being harassed, they should come to see her. Accordingly, in the morning of 16.02.1999, he went to village Rajewal where he saw that her niece Balbir Kaur was lying on the cot in a critical condition. She was murmuring that in the morning her husband Sikander Singh, father-in- law Jang Singh, mother-in-law Gurdev Kaur and younger brother of her husband Talwinder Singh abused her. She told that she had a pain in her abdomen from the previous day. Then, they all brought some thing in a glass and stated that she should take it as a medicine for the abdomen pain. Accordingly, she took it but after that she became unconscious. In the meantime, Jang Singh brought a Maruti Van and they took her away in Maruti Van to hospital. When he insisted to accompany them, Sikander told that he need not go with them and should stay at the house. CRA No. 1752 SB of 2008 3 In the meantime, he came to his village Narike and stated to his brother about the whole occurrence. After that, they both had a talk with Sarpanch Nirbhai Singh and collected some persons of the village and went to village Rajewal. When they reached at village Rajewal, number of persons had collected at the house of Sikander Singh and dead body of Balbir Kaur was lying on the cot. They had suspicion that death of Balbir Kaur had been caused by the accused by giving her some poisonous substance. On this statement, EX PA SI Arvind Puri made his endorsement on the basis of which FIR EX.PW3/B was recorded and Investigating Officer prepared the inquest report, site plan of the place of occurrence. Dead body was sent to the hospital where post mortem was conducted and after post mortem, clothes of the deceased were taken into police possession vide memo EX PW13/C. On the basis of disclosure statement of Sikander Singh, one steel glass was got recovered. In the post mortem report, Doctors did not give the cause of death and it was kept pending till receipt of report of Chemical Examiner. In the report of Chemical Examiner opinion was received that no poison was detected in the contents of the brain, heart and lung, liver, spleen, kidney, stomach, intestines and blood whereas in the report of Pathology Department of Pathology, Government Medical College, Patiala opinion was given that it does not show any pathological change and there was no evidence of pregnancy and after that a Board of Doctors gave opinion that the cause of death in this case could not be ascertained. The statements of the witnesses were recorded by the Investigating Officer and on completion of investigation, final report under Section 173 Cr.P.C. was filed in the CRA No. 1752 SB of 2008 4 Court."
The present appellant has been held guilty and convicted under Section 304 B and 498-A of the Indian Penal Code, whereas, accused Jang Singh, Gurdev Kaur and Talwinder Singh were acquitted of the charge framed against them.
The prosecution examined the witnesses, namely, PW1 Sukhdev Singh, who is uncle of Balbir Kaur - deceased, PW2 - Nirbey Singh, Sarpanch of Village Narika, who stated that Balbir Kaur-deceased told him that the accused-appellant has given something to her and after consuming that she become unconscious, PW3 - Dr. Neel Kamal, Medical Officer, who conducted the post mortem along with Dr. N K Singla and Dr. Iqbal Kaur on the dead body of Balbir Kaur, PW4 - Satya Devi, who is mother of the deceased, has corroborated the version of the complainant with respect to the demand of dowry by stating that when she went to the house of the accused appellant, Balbir Kaur was lying dead, PW5 Jarnail Singh, who has not corroborated the version of the prosecution and, as such, he was declared as hostile, PW7 Ravinder Singh and PW9- Ram Dass, father of the deceased, both of them have corroborated the prosecution story, whereas, PW-6 - Ashwani Kumar, Draftsman, PW8 - Teja Singh, PW10 - Malkit Singh, PW11 - Dharam Singh, PW12 - Harpal Singh and PW13 - Arvind Puri are the official/formal witnesses.
The accused was also examined under Section 313 Cr.P.C. In his defence, the appellant pleaded that he was innocent and Balbir Kaur had died a natural death.
CRA No. 1752 SB of 2008 5
EX. PE is the report of the Pathology. EX. PF is the report of the Chemical Examiner. As per report, EX. PF, "no poison was detected in the contents of exhibit No. I, II, III, IV, V, VI, VII and VIII."
EX. PG is the post mortem report submitted by PW- Dr. Neel Kamal. The aforesaid report reads as under:-
"Exact cause of death in this case could not be ascertained."
Thereafter, Dr. Neel Kamal was examined as PW-3. The relevant portion of his statement read as under:
"The report of chemical examiner, EX. PF was received by me though the exact cause of death could not be ascertain on the basis of EX. PF because no poison was detected in the viscera sent for chemical examiner as per our report EX. PG but however, probable cause of death in this case was due to function failure of the body due to some epileptic fits or atonomic emotional stress or due to poison."
On his cross examination, it was submitted as under :-
"Possibility of this case being that of a natural death could not be ruled out. There was no evidence of silent heart attack but there can be number of reasons for the natural death. In this case, I cannot specify any cause of death on account of uncertainty."
Although under the same breath, he went to state that:-
"Some gaseous poison, some anaesthetic over dose could be the poisoning which could not detected. Anaesthetic over dose can be due to drugs like ether, cocaine. The gasses poisoning due to smelling, carbon monoxide, suffocation. All these can be due CRA No. 1752 SB of 2008 6 to smelling."
Thus, the primary ingredients of Sections 304-B of the Indian Penal Code are missing. Section 304-B of IPC reads as under:-
"304B - Dowery 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 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.] In order to attract Section 304-B IPC, death should be either on account of some burns or bodily injury or occurs otherwise than under normal circumstances.
No doubt, a death of the married woman within seven months of the marriage attracts Section 304-B IPC and is considered as unnatural death. However, in the present case, there is no medical evidence forthcoming to establish that Balbir Kaur died an unnatural death on account of any burn or bodily injury or by poison etc. PW3 Dr. Neel Kamal, in her statement had specifically CRA No. 1752 SB of 2008 7 stated that the possibility of natural death in this case could not be ruled out as there can be number of reasons for the natural death.
No doubt, there is no evidence of Epileptic fits or other cause leading to natural death but at the same time, the prosecution has to stand on its own legs in order to show that the death was an unnatural death. The prosecution has miserably failed to establish the same. The presence of the froth without the medical report or the post mortem report supporting the allegations of poison, cannot convert a natural death into an unnatural death. The allegations of poison are not supported by the medical evidence either by the Post-mortem report or by the Chemical Examiner report or by the Pathology report.
The evidence of the witnesses namely PW1 - Sukhdev Singh (uncle of the deceased), PW4 - Satya Devi (mother of the deceased), PW9 -Ram Dass, father of the deceased with respect to oral dying declaration is, in any case, disbelieved by the trial Court. Similar allegation with regard to the demand of dowry which comes in the statement of Satya Devi, mother of the deceased, has been disbelieved. All the evidence shows that Balbir Kaur had already expired and therefore, the version that she had murmured and was poisoned, cannot be believed.
It would be highly dangerous to convict the appellant only on a mere probability that the death could be caused due to some poison which could not be detected. No other evidence is forthcoming in order to establish the cause of death of Balbir Kaur. In view of the opinion given by the doctor that the cause of death could not be ascertained, it CRA No. 1752 SB of 2008 8 would be highly improper and unjust to convict the appellant on a mere suspicion. The prosecution has failed to establish the guilt of the appellant and accordingly, he deserves the benefit of doubt.
In view of the forgoing discussion, this petition is allowed and the impugned judgement dated 04.08.2008 passed by the Additional Sessions Judge, Ludhiana, holding guilty and convicting the appellant under Sections 304 B and 498-A of the Indian Penal Code, is set aside. The appellant is, accordingly, acquitted of the charge and he is ordered to be released from judicial custody forthwith.
(Nirmaljit Kaur) Judge 26.04.2010 mohan