Punjab-Haryana High Court
Harvinder Singh vs State Of Punjab on 25 January, 2011
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No. 871-SB of 2001 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Date of decision: 25.1.2011
(I) Crl.Appeal No.871-SB of 2001
Harvinder Singh
... Appellant
versus
State of Punjab
... Respondent
(II) Crl.Revision No.1712of 2001
Harbhajan Singh
... Petitioner
versus
State of Punjab and another
... Respondents
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.B.B.Singh Sobti, Advocate,
for the appellant.
Mr.P.S.Grewal, AAG, Punjab.
Ms.Manpreet Kaur, Advocate,
for Mr.G.S.Gill, Advocate,
for the petitioner in Crl.Rev.No.1712 of 2001.
...
JORA SINGH, J.
This is an appeal by Harvinder Singh to challenge the judgment of conviction and order of sentence dated 12.7.2001 rendered by Additional Sessions Judge, Ludhiana, in Sessions Case No. 56 of 5.11.1999, arising out of FIR No. 40 dated 27.7.1999 under Sections 498-A/304-B IPC, PS Model Town, Ludhiana.
By the said judgment, he was convicted under Sections 498- A/304-B IPC and sentenced to undergo RI for 2 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 6 months Crl.Appeal No. 871-SB of 2001 2 under Section 498-A IPC and to undergo RI for 7 years under Section 304- B IPC. Both the sentences were ordered to run concurrently.
Crl. Revision No.1712 of 2001 was preferred by Harbhajan Singh for enhancement of sentence imposed upon the accused-appellant.
Prosecution story, in brief, is that Harbhajan Singh, complainant, is the father of Kuljit Kaur (deceased), who was married with Harvinder Singh in the year 1995. From this wedlock, Kuljit Kaur had two issues. At the time of marriage, sufficient dowry was given as per his status. Whenever Kuljit Kaur came to her parental house, then told them that Harvinder Singh is not happy with the articles given in the dowry and he used to taunt and beat her. Amrik Singh was the mediator. Then matter was brought to the notice of Amrik Singh. Amrik Singh also requested the accused not to misbehave and maltreat Kuljit Kaur. Despite that, accused used to demand from the deceased. On 19.7.1999 at about 4.00 PM, message was sent by Kuljit Kaur that Harvinder Singh was quarrelling with her and she was given beatings. Then he along with Amrik Singh had gone to the house of Harvinder Singh. At that time, Harvinder Singh was quarrelling with Kuljit Kaur. He along with Amrik Singh requested Harvinder Singh not to misbehave and maltreat Kuljit Kaur and came back. At about 7.00 PM, on telephone, he came to know that Kuljit Kaur was set on fire by Harvinder Singh and after that, she was got admitted in DMC, Ludhiana. Then he along with Amrik Singh had gone to DMC, Ludhiana, where Kuljit Kaur was lying admitted with burn injuries. She was unconscious. On 25.7.1999, Kuljit Kaur told to Amrik Singh that she was set on fire by her husband. One writing was also handed over to Amrik Singh. Today, Kuljit Kaur had succumbed to her burn injuries while Crl.Appeal No. 871-SB of 2001 3 admitted in DMC, Ludhiana. He came to know that the earlier statement made by Kuljit Kaur was under pressure of some one. Writing of the deceased was produced before the police. Statement of Harbhajan Singh, while present in DMC, Ludhiana, was recorded by SI Baldev Singh at about 10.45 AM on 27.7.1999. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. Special report was handed over to Ilaqa Magistrate at 2.00 PM on 27.7.1999. Writing produced by the complainant before the IO was also taken into police possession vide memo (Ex.PC) attested by the witnesses.
Inquest report was prepared. Dead body was sent to Civil Hospital, Ludhiana, for postmortem examination, through HC Gurdeep Singh. Accused was arrested on 1.8.1999 and on 2.8.1999, got recovered dowry articles from his residential house. Dowry articles were taken into police possession vide separate memo attested by the witnesses. Rough site plan of the place of occurrence with correct marginal notes was prepared. After completion of investigation, challan was presented in Court.
Accused was charged under Sections 498-A/304-B IPC, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW1 Harbhajan Singh is the complainant and has reiterated his stand before the police.
PW2 Bimla Rani is the mother, whereas PW3 Gurinder Pal Singh is the brother of the deceased. Both have supported the prosecution story.
PW4 SI Baldev Singh is the Investigating Officer.
Crl.Appeal No. 871-SB of 2001 4PW5 Harminder Singh, Draftsman, prepared scaled site plan (Ex.PH).
PW6 Dr. Ajay Verma on 27.7.1999 had conducted postmortem examination on the dead body of Kuljit Kaur and observed as under:-
"The dead body contained superficial to deep infected burns over lower part of face and adjoining neck front, upper and lower chest front, upper abdomen front, left side of lower abdomen front, back of neck and upper part of chest back, both thighs front medial lateral, right arm and forearm, interior medial and lateral aspect including elbow, left arm and forearm interior aspect and medial aspect.
Ribs and cartilages were healthy.
Pleurae larynx and tracheae right lung and left lung were congested.
Heart was healthy and right side of heart contained blood. The cause of death in his opinion was septicemic shock as a result of superficial to deep infected burns which were sufficient to cause death in the ordinary course of nature. All the burns were ante mortem in nature."
PW7 Dr. Samir Khanna stated that on 19.7.1999 at about 8.10 PM, Kuljit Kaur was brought to the Casualty Department by her husband Harvinder Singh as a case of flame burns. She was admitted in the Emergency Department. Ruqa (Ex.PK) was sent to Police Station, Sarabha Nagar.
Crl.Appeal No. 871-SB of 2001 5
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.
Defence version of the accused was that Kuljit Kaur caught fire accidentally while she was trying to boil milk. He tried to extinguish the fire and got her admitted in the hospital. His left hand was fully burnt while saving Kuljit Kaur. He remained with her in the hospital throughout till her death.
In defence, DW1 Surinder Negi brought OPD record of DMC. Ludhiana, and stated that Ex.DD is the copy of OPD record of Harvinder Singh. Ex.DE is the card issued to the patient.
DW2 Ravinder Singh stated that record regarding matriculation examination in the month of March, 1994 of Kuljit Kaur has been destroyed.
After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned defence counsel for the appellant, learned State counsel, learned counsel for the petitioner-complainant and have gone through the evidence on file.
Learned defence counsel for the appellant argued that Kuljit Kaur (deceased) was the legally wedded wife of the appellant and from this wedlock, there are two issues, but there was no demand of dowry. Deceased was not harassed for want of dowry soon before the death. Death was unnatural in the in-laws house but appellant is to be convicted under Section 304-B IPC if deceased was subjected to cruelty or harassment by Crl.Appeal No. 871-SB of 2001 6 the appellant in connection with demand of dowry. Occurrence was at about 4.00 PM on 19.7.1999. An effort was made by the appellant to extinguish the fire. Deceased was got admitted in the hospital. Deceased had disclosed to the doctor that she caught fire accidentally while she was boiling milk on the stove. This fact is clear from the statement of PW7 Dr. Samir Khanna, who brought bed head ticket. Deceased was admitted in DMC, Ludhiana, by the appellant. PW6 Dr. Ajay Verma, who had conducted postmortem examination, also admitted that burn injuries on the dead body could have been the result of sudden and accidental fire from kerosene stove. Burns as appearing on the dead body are more suggestive of an accident only because the burns are mainly on the front and in case intentionally kerosene is put on the head and other parts of the body, then body will have burn on all the body including head. On 20.7.1999, HC Gurdeep Singh had gone to the hospital and after obtaining opinion from the doctor as to whether patient was fit to make statement or not, had recorded the statement of deceased. Ex.DC is the copy of statement of deceased. IO in cross-examination admitted that information was received regarding admission of Kuljit Kaur on 19.7.1999. On 20.7.1997, HC Gurdeep Singh had gone to DMC, Ludhiana, and after obtaining opinion from the doctor regarding fitness of the patient to make statement, statement of Kuljit Kaur (Ex.DC) was recorded. Statement of Kuljit Kaur (Ex.DC) shows that she caught fire accidentally. No allegation of cruelty or harassment in connection with demand of dowry. Without any reason, dying declaration (Ex.DC) was not brought on file by the prosecution. Appellant was also medico legally examined and this fact is clear from the statements of DWs. Burn injuries were noticed on the person of the appellant. According to the Crl.Appeal No. 871-SB of 2001 7 statement of the complainant, on 25.7.1999, deceased was alone in the hospital. Then she had told to Amrik Singh that she was set on fire by the appellant. One suicide note (Ex.PA) was also handed over to Amrik Singh but suicide note (Ex.PA) was discarded by the trial Court. In the FIR, there is not a word that appellant used to misbehave and maltreat the deceased for want of dowry. Allegation of the complainant is that appellant used to quarrel and beat the deceased. Matter was brought to the notice of Amrik Singh, mediator, but Amrik Singh was not examined. Amrik Singh was the best witness to state as to whether deceased had made oral dying declaration before him that she was set on fire by the appellant. Dying declaration (Ex.DC) and statement of the doctor that deceased on enquiry reported that she caught fire accidentally suggest that no offence punishable under Section 304-B IPC is made out. No case of the prosecution that deceased was abetted to commit suicide and on the instigation of the appellant, deceased had actually committed suicide. Case of the prosecution is that deceased was set on fire. Argued that without any evidence regarding oral dying declaration, when suicide note in the hand of the deceased was ignored by the trial Court, then no cogent and convincing evidence on the file to opine that deceased was set on fire and the appellant used to misbehave and maltreat the deceased for want of dowry soon before the death.
Learned State counsel argued that marriage of the deceased with the appellant was in the year 1995. Unnatural death within 7 years from the date of marriage in the in-laws house. Soon before the death, appellant used to misbehave and maltreat the deceased for want of dowry Crl.Appeal No. 871-SB of 2001 8 and this fact is clear from the statements of father, mother and brother of the deceased.
Undisputedly, Kuljit Kaur (deceased) was married with the appellant in the year 1995 and from this wedlock, she has two issues. Sufficient dowry was given at the time of marriage but 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 is that deceased caught fire accidentally while boiling milk on stove and this fact is clear from dying declaration (Ex.DC) recorded by HC Gurdeep Singh and entry in the bed head ticket. In case deceased was set on fire by the appellant, then there was no idea to extinguish the fire and shift the deceased to the hospital. Appearance of burn injuries on the person of the appellant as per record brought by the defence witness shows that defence version seems to be more probable but the question is whether the prosecution evidence inspires confidence or defence version seems to be more probable.
To convict the appellant under Section 304-B IPC, prosecution was required to establish that unnatural death was in the in-laws house within 7 years of her marriage. Secondly, deceased was subjected to cruelty or harassment by the appellant. Cruelty or harassment was in connection with demand of dowry soon before the death.
According to evidence on the file, occurrence was at about 4.00 PM on 19.7.1999. Deceased was shifted to the hospital by the appellant and this fact is clear from the statement of PW7 Dr. Samir Khanna. While lying admitted in DMC, Ludhiana, Kuljit Kaur had succumbed to her burn injuries on 26.7.1999 at about 10.40 PM. Marriage of the deceased with the Crl.Appeal No. 871-SB of 2001 9 appellant was in the year 1995 and from this wedlock, there were two issues. No suggestion to the parents or brother of the deceased that marriage was not in the year 1995 and from this wedlock, there was no issue. As per Dr. Ajay Verma, who had conducted postmortem examination, cause of death was septicemic shock as a result of superficial to deep infected burns which were sufficient to cause death in the ordinary course of nature. All the burns were ante mortem in nature. No suggestion to the doctor that death was natural. Appellant when examined under Section 313 Cr.P.C., then stated that deceased caught fire accidentally. So, first two ingredients to convict the appellant under Section 304-B IPC, i.e., unnatural death at the in-laws house within 7 years of marriage, are clear. Third ingredient to convict the appellant under Section 304-B IPC is that deceased was subjected to cruelty or harassment by the appellant. Cruelty or harassment was soon before death in connection with demand of dowry.
On 19.7.1997 at about 7.00 PM, appellant came to know about the occurrence. Then he along with Amrik Singh had gone to DMC, Ludhiana. Deceased was lying unconscious in the hospital. On 25.7.1999, deceased was alone in the hospital and told to Amrik Singh that she was set on fire by the appellant. One note (Ex.PA) was also handed over to Amrik Singh and that note was produced before the police. In case, before the present occurrence, appellant used to misbehave and maltreat the deceased for want of dowry, then immediately after the occurrence, complainant should have reported to the police that earlier to the occurrence, whenever Kuljit Kaur came to her parental house, then informed that she was being harassed for want of dowry. After visiting DMC, Ludhiana, when deceased was lying unconscious, then report was not lodged with the police. Crl.Appeal No. 871-SB of 2001 10
On 25.7.1999, there was a oral dying declaration before Amrik Singh but Amrik Singh was not produced for the reasons best known to the prosecution. Amrik Singh was to state as to whether on 25.7.1999, deceased had told him that she was set on fire by the appellant for want of dowry. Suicide note (Ex.PA) was also handed over to Amrik Singh and note (Ex.PA) is on the file but note was discarded by the trial Court. After the death of Kuljit Kaur, report was lodged at about 10.45 AM on 27.7.1999. When complainant came to know about the incident and before the incident, Kuljit Kaur used to inform her parents whenever came to her parental house that her husband used to misbehave and maltreat her for want of dowry, then after reaching DMC, Ludhiana, report should have been lodged but no explanation why report was not lodged. On 25.7.1999, complainant party was sure that deceased was set on fire because deceased had made oral dying declaration before Amrik Singh but on that day also, matter was not reported to the police. No explanation why Amrik Singh was not examined. After the death, it is very easy to level allegation that deceased was subjected to cruelty or harassment in connection with demand of dowry. But on 27.7.1997 when matter was reported to the police, then no allegation regarding cruelty or harassment in connection of demand of dowry. According to the statement dated 27.7.1999, sufficient dowry was given but appellant was not happy with the dowry. Appellant used to taunt and beat Kuljit Kaur. Matter was brought to the notice of Amrik Singh. Amrik Singh had also requested the appellant not to misbehave and maltreat the deceased but appellant used to demand something. On 19.7.1999, message was received by the complainant from the deceased that appellant was quarrelling and giving beatings to her. Complainant along with Amrik Crl.Appeal No. 871-SB of 2001 11 Singh had gone to the house of the appellant and appellant was requested not to misbehave and maltreat the deceased. After that, complainant along with Amrik Singh came back. Then at about 7.00 PM, complainant came to know about the incident. As discussed earlier, before the incident, complainant party had the knowledge that appellant used to misbehave and maltreat Kuljit Kaur for want of dowry. So, after the incident, report should have been lodged. If there was oral dying declaration, then Amrik Singh should have been produced in Court. Suicide note (Ex.PA) alleged to be in the hand of the deceased was discarded by the trial Court. Complainant, his wife and son admitted that till the death of Kuljit Kaur, they remained in DMC, Ludhiana. They have not stated a word that at any stage, deceased was tutored by anybody but in the statement dated 27.7.1999, complainant stated that he came to know that statement of Kuljit Kaur was recorded under pressure. While lying admitted in the hospital, deceased remained conscious. Complainant party was also in the hospital. So, no question that any one had pressurized the deceased to make statement.
Statement of the deceased was not produced by the prosecution but IO while appearing as PW4, then in cross-examination admitted that on receipt of information regarding the occurrence on 19.7.1997, police party had gone to DMC, Ludhiana. On 20.7.1999, HC Gurdeep Singh moved an application requesting the doctor to opine as to whether Kuljit Kaur was fit to make statement or not. Application is Ex.DB and opinion of the doctor is Ex.DB/1. After that, HC Gurdeep Singh had recorded statement of Kuljit Kaur and the same is Ex.DC. But for the reasons best known to the prosecution, dying declaration (Ex.DC) is not brought on the file. Dying declaration (Ex.DC) is reproduced as under:-
Crl.Appeal No. 871-SB of 2001 12
"My husband works at the PCO. We have two children, aged 3 years and 10 months. Today at about 7.00 PM, I was heating milk on the stove. When after putting kerosene in the stove and after filling air in it, I had lighted it and had put a pin in the hole, there was a sudden spurt of the kerosene from the hole, causing sudden fire to my entire body. My husband made arrangement of a private vehicle and took me to the DMC Hospital where I am under treatment. I have caught fire on account of sudden spurt of kerosene from the stove. No body is to blame for the incident."
As per defence version, deceased caught fire accidentally while boiling milk on the stove. Deceased was shifted to the hospital by the appellant and this fact was admitted by the complainant. Doctor stated that deceased was brought to the hospital by the appellant. PW7 Dr. Samir Khanna while appearing in Court, then stated that as per bed head ticket brought by him, deceased herself stated that her clothes caught fire while she was boiling milk on the stove at about 7.15 PM on 19.7.1999. This fact was recorded by him in the bed head ticket. Then stated that only one attendant was allowed to remain present by the side of the patient with a sterilized precaution. Usually no material from outside was allowed to be taken near such a patient. I.V. line had been applied for providing her IV fluid. It is very difficult for such a patient to write something in her own hand especially when I.V. line and bandages have been applied to her.
PW6 Dr. Ajay Verma, who had conducted postmortem examination on the dead body of Kuljit Kaur, also admitted that burn injuries on the dead body could have been the result of sudden and Crl.Appeal No. 871-SB of 2001 13 accidental fire from kerosene stove. Burns as appearing on the dead body are more suggestive of an accident only because the burns are mainly on the front and in case intentionally kerosene is put on the head and other parts of the body, then body will have burn on all the body including head. Visitors are not allowed in the unit because visitors can only increase the chances of infection. Defence version of the appellant is that when deceased caught fire accidentally while boiling milk, then he made an effort to extinguish the fire. Immediately the deceased was shifted to DMC, Ludhiana. DWs brought record and stated that burn injuries were noticed on the person of the appellant.
Harbhajan Singh, complainant, admitted that his relations with Amrik Singh were cordial upto the death of her daughter. Drips remained applied to both her arms till her death and so was the oxygen mask. Then stated that he had told the police that her daughter had made some earlier statement under the influence of somebody. On 25.7.1999, her daughter told him about her previous statement by saying that her signatures were obtained on a blank paper. Writing (Ex.PA) was made in the presence of Amrik Singh. From 19.7.1999 to 27.7.1999 till the death of his daughter, he along with his wife remained present in the hospital. His daughter did not disclose to him as to who had influenced her to make any statement. Till the death of his daughter, no one except the doctors and hospital staff was allowed to visit his daughter.
Bimla Rani, mother of the deceased, stated that she was questioned by the police on 26.7.1999 but her statement was not recorded for about two months.
Crl.Appeal No. 871-SB of 2001 14
Gurvinder Pal Singh, brother of the deceased, in examination- in-chief supported the prosecution story but in cross-examination stated that his statement was recorded on 19.9.1999 and in his statement, he reported to the police that car and scooter were demanded by the appellant. He was confronted with the statement (Ex.DA), but in the statement dated 27.7.1999 of Harbhajan Singh, complainant, there is not a word regarding demand of a car or a scooter.
In 2004(4) RCR (Crl.) 462, State of Haryana vs. Raj Rani, Hon'ble Division Bench held that dying declaration by deceased making allegation against the accused (mother-in-law) of cruelty, but no allegation about demand of dowry-no offence punishable under Section 304-B IPC.
In 2010 (3) RCR (Crl.) 24, Rajesh vs. State of Haryana, four dying declarations by the deceased, two before the JMIC and two oral. In the first dying declaration, deceased exonerated her in-laws and in the second dying declaration, she implicated her husband and mother-in-law. Prosecution withheld the first dying declaration. Prosecution story was rejected.
In the present case, first dying declaration (Ex.DC) dated 20.7.1999 was recorded by HC Gurmeet Singh after obtaining opinion from the doctor regarding fitness of the patient to make statement, but dying declaration (Ex.DC) was not brought on the file for the reasons best known to the prosecution. Second dying declaration was before Amrik Singh on 25.7.1999 but Amrik Singh was not produced in Court for the reasons best known to the prosecution. Immediately after the admission in DMC, Ludhiana, history was given by the deceased and according to the entry in bed head ticket, deceased caught fire accidentally. No allegation as to who Crl.Appeal No. 871-SB of 2001 15 had influenced the deceased to make statement. No complaint before the police that dying declaration (Ex.DC) was not recorded properly. After admission in DMC, Ludhiana, no request to the Magistrate to record dying declaration. Till death, matter was not brought to the notice of the police that whenever deceased came to her parental house, then reported that she was subjected to cruelty or harassment in connection with demand of dowry. So, in view of dying declaration (Ex.DC) entry in bed head ticket, coupled with the statements of the doctors, particularly when there is no allegation against the appellant that he had influenced the deceased to make statement, third ingredient to convict the appellant under Section 304-B IPC is missing. In fact, deceased caught fire accidentally while boiling milk on the stove. Immediately after the occurrence, deceased was shifted to DMC, Ludhiana, by the appellant. While extinguishing fire, appellant had also received burn injuries. So, defence version seems to be more probable than the prosecution story.
In the light of all discussed above, I am of the opinion that evidence on file was not properly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is ordered to be set aside. Appellant is acquitted of the charge levelled against him.
For the reasons recorded above, Crl.Appeal No.871-SB of 2001 is allowed and Crl.Revision No.1712 of 2001 is dismissed.
25.1.2011 ( JORA SINGH ) pk JUDGE