Crl. Appeal No. 1472-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 1472-SB of 2001 Date of Decision : November 15, 2011 Gurnaib Singh and others .... Appellants Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. A. P. S. Deol, Senior Advocate with Mr. Devinder Bir Singh, Advocate for the appellants. Mr. R. S. Rawat, AAG, Punjab. Mr. Sanjay Jangra, Advocate for Mr. D. D. Sharma, Advocate for the complainant. * * * L. N. MITTAL, J. (Oral) : By this common judgment, I am disposing of two cases i.e. Crl. Appeal No. 1472-SB of 2001 filed by convicts Gurnaib Singh, his brother Ajaib Singh and their mother Mohinder Kaur assailing their conviction and sentence ordered by learned Additional Sessions Judge, Mansa, vide judgment and order dated 27.11.2001 as well as Crl. Revn. No. 1807 of 2002 preferred by complainant Gurlabh Singh seeking enhancement of Crl. Appeal No. 1472-SB of 2001 2 sentence of the convicts. At the outset, it has to be noticed that on the preceding date of hearing, counsel for the appellants stated that appellant no.3 has since died on 17.10.2007. Photostat copy of her Death Certificate was also placed on record. Learned State counsel, after having verified the same after getting instructions from HC Darshan Singh, affirms that Mohinder Kaur – appellant no.3 has since died. Nobody has come forward to pursue the instant appeal on her behalf. Accordingly, the instant appeal on behalf of appellant no.3 Mohinder Kaur is dismissed as having abated. Prosecution case in brief may be narrated as under :- Marriage of Amarjit Kaur (since deceased) was solemnized with Gurnaib Singh accused about 2½ years before the occurrence. All the three accused had been harassing the deceased for demand of dowry. They had been demanding Rs.50,000/- more, but parents of the deceased could not meet the said demand. She used to be turned out of the matrimonial home by the accused many times. The complainant party used to leave her in the matrimonial home after consoling her and after pleading with the accused. About one month prior to the occurrence also, the accused turned the deceased out of the matrimonial home after giving her beating and telling her to come back only with amount of Rs.50,000/- from her parents, failing which, she need not return. The deceased narrated the occurrence to all her family members in parental home. On 18.07.1998, the complainant Crl. Appeal No. 1472-SB of 2001 3 Gurlabh Singh, brother of the deceased, left her at her matrimonial home after making request to the accused persons. The complainant told them that they were not in a position to give more dowry. On 27.07.1998 at about 06:00 P.M. - the date of occurrence, the complainant Gurlabh Singh along his father Sukhdev Singh, went to the house of the accused to know about the well-being of the deceased. However, they found the deceased lying dead in the courtyard of the house. She had committed suicide on being fed up with cruelty committed to her by the accused for dowry. Complainant reported the matter to police by making statement. Thereupon, FIR was registered and investigated. Inquest report on the dead body was prepared. Post-mortem examination was conducted on the dead body by board of three doctors. According to the report of Chemical Examiner, organo phosphorus – a group of insecticides was detected in viscera and blood of the deceased. Accordingly, cause of death was opined to be organo phosphorus poison. Statements of witnesses were recorded. Rough site plan of the place of occurrence was prepared. All the three accused were arrested on 30.07.1998. On completion of investigation, police presented report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) for prosecution of all the three accused. Charge under Section 304-B of the Indian Penal Code (in short – IPC) was framed against the accused. They pleaded not guilty and claimed trial. Crl. Appeal No. 1472-SB of 2001 4 In support of its case, prosecution examined ten witnesses. Complainant Gurlabh Singh (PW-1) and his father Sukhdev Singh (PW-4) have broadly stated according to the prosecution version. Santokh Singh (PW-5) – Lambardaar of complainant's village has also corroborated their statements. Dr. Rajinder Kumar Garg (PW-2) and Dr. Vijay Sidhana (PW- 3) stated that they along with Dr. Asha Kiran conducted post-mortem examination on the dead body. They also stated about cause of death of the deceased. HC Nazar Singh (PW-6), HC Naib Singh (PW-7) and Constable Harinder Singh (PW-9) tendered their affidavits being formal witnesses. ASI Kulwant Singh (PW-8) and SI Jalour Singh (PW-10) stated about investigation of the case conducted by them. The accused in their examination under Section 313 Cr.P.C., while admitting the factum of marriage of accused Gurnaib Singh with the deceased, denied all other incriminating circumstances appearing against them in the prosecution case. Accused Gurnaib Singh filed written statement of defence, which was also adopted by the remaining two accused. It was pleaded that the deceased was suffering from mental illness since before her marriage. She was also under depression as after the marriage, she could not conceive. She used to suffer fits. On the day of Crl. Appeal No. 1472-SB of 2001 5 occurrence also, she suffered fit. She was being taken to hospital, but on the way, she expired. The dead body was brought back. Parents of the deceased were informed. They pressurized the police to register this false case. In defence, the accused examined nine witnesses. Dr. Rajinder Arora (DW-1) and Dr. J. S. Dhillon (DW-6) stated about treatment of the deceased given by them. Dr. Dhillon stated that it was suspected case of depression. Mela Singh (DW-2) and Sukhdev Singh (DW-3) broadly stated according to the defence version that the deceased was suffering from mental illness. Chanan Singh (DW-4) stated that on 26.07.1998, while he was Granthi, he had performed Bhog of Guru Granth Sahib in the house of the accused on account of death anniversary of father of Gurnaib Singh – accused. Om Parkash Singla – Headmaster (DW-5) stated from the record that accused Ajaib Singh was student of 10th standard, as per entry dated 06.08.1997. His name was struck off the rolls on 04.08.1998 on account of prolonged absence from school. HC Jagraj Singh (DW-7), Constable Ranjit Singh (DW-8) and HC Nachhattar Singh (DW-9) proved certain FIRs against relatives of the complainant party. Crl. Appeal No. 1472-SB of 2001 6 Learned Additional Sessions Judge, Mansa, vide impugned judgment and order dated 27.11.2001, convicted all the three accused under Section 304-B IPC and sentenced each of them to undergo rigorous imprisonment for seven years and to pay fine of Rs.10,000/- and in default thereof, to undergo further rigorous imprisonment for one year. Feeling aggrieved, the convicts have preferred Crl. Appeal No. 1472-SB of 2001, whereas complainant has filed Crl. Revn. No. 1807 of 2002 seeking enhancement of sentence to life imprisonment. I have heard learned counsel for the parties and perused the case file with their assistance. Counsel for the appellants vehemently contended that the deceased committed suicide on account of depression because she had not conceived and also because she was suffering from mental illness and used to suffer fits. Reference in this regard was made to defence evidence regarding treatment of the deceased. It was contended that there was no demand of dowry and harassment of the deceased for the same. It was also argued that accused Ajaib Singh is younger brother of husband of the deceased and he was student of 10th standard at the time of occurrence, and therefore, his involvement is reasonably ruled out. On the other hand, on behalf of prosecution, it was argued that prosecution evidence is cogent and is sufficient to bring home the charge against the accused. It was pointed out that the deceased committed suicide Crl. Appeal No. 1472-SB of 2001 7 2½ years after her marriage with accused Gurnaib Singh because she was being harassed by the accused for demand of dowry. Counsel for the complainant also prayed for enhancement of sentence of the convicts. I have carefully considered the rival contentions. As already mentioned, appeal qua appellant no.3 has abated. The appeal survives qua appellants no.1 and 2 only. In so far as appellant no.2 is concerned, taking holistic view of the material on record and after deep consideration, I am of the considered view that appellant no.2 deserves benefit of doubt. He is younger brother of husband of the deceased. As per testimony of Om Parkash Singla – Headmaster (DW-5), based on school certificate, appellant no.2 Ajaib Singh was student of 10th standard in 1997-98 i.e. at the time of occurrence. At the time of marriage of the deceased 2½ years prior to it, he might be student of 7th or 8th standard. A school-going boy of that age and class would not have possibly demanded dowry from the newly wed wife of his elder brother. It appears that he has been named along with other accused because there is tendency to rope in all family members of husband of the deceased in such cases. Father-in-law of the deceased had already expired before this occurrence. Husband, his brother and mother were named as accused. It is also worth mentioning that Santokh Singh (PW-5) stated that about six months after the marriage of the deceased, when there was dispute, he had also accompanied others to the house of the accused. At that time, mother Crl. Appeal No. 1472-SB of 2001 8 of Gurnaib Singh accused – appellant no.1 told that they had been given Rs.50,000/- less, besides less dowry, and the same be given. This witness and others, who had gone there, told Gurnaib Singh and his parents that they should not demand Rs.50,000/- and more dowry. From this statement of Santokh Singh (PW-5), it is manifest that Ajaib Singh – appellant no.2 was not playing any active role in demand of money or more dowry. Statement of this witness further entitles appellant no.2 Ajaib Singh to benefit of doubt. As regards appellant no.1 Gurnaib Singh, who is husband of the deceased, his guilt is proved beyond reasonable doubt. All ingredients of the offence of dowry death are fully proved. It is admitted that marriage of deceased with Gurnaib Singh had taken place 2½ years before her death. It is also proved from medical evidence including report of Chemical Examiner that cause of death of the deceased was organo phosphorus poison. Accordingly, two ingredients of the offence of dowry death i.e. death of woman (deceased) took place within seven years of her marriage and that the death was otherwise than under normal circumstances, are fully proved. The third ingredient, that the deceased was subjected to cruelty for or in connection with dowry soon before her death, is also proved against appellant no.1 from the prosecution evidence. In this regard, we have statements of complainant Gurlabh Singh (PW-1) and Sukhdev Singh (PW- 4) – brother and father respectively of the deceased. Their statements are Crl. Appeal No. 1472-SB of 2001 9 also corroborated by Santokh Singh (PW-5) – Lambardar of the village and also a relative of the complainant party. If everything had been well in the matrimonial home for the deceased, there was no reason why the complainant party would have lodged a false case against the accused. Gurnaib Singh – appellant no.1 being husband of the deceased was primarily responsible for her well-being in the matrimonial home. His brother Ajaib Singh is being given benefit of doubt, but no such benefit can be extended to Gurnaib Singh himself being husband of the deceased. Statements of the aforesaid three material witnesses are sufficient to prove guilt of appellant no.1 beyond reasonable doubt. Their statements could not be impeached in cross-examination. They had no reason to lodge a false case, although innocent family members could also be roped in along with real culprits. However, the same would not apply to Gurnaib Singh being husband of the deceased. As regards defence version, there is no cogent evidence to depict that deceased was suffering from fits. Even if she was allegedly getting treatment for suspected depression, it cannot be said that she was actually suffering from any depression. The nature of alleged mental illness of the deceased has not been proved. On the other hand, Dr. Rajinder Arora (DW-1) stated that out-door treatment ticket of the deceased (Ex.D-1) is absolutely silent that the deceased was suffering from mental depression or any specific mental disease. On the other hand, the alleged depression Crl. Appeal No. 1472-SB of 2001 10 could be on account of her harassment by appellant no.1 for demand of dowry. It may be added that marriage of the deceased lasted for 2½ years only. During this period, she was turned out of the matrimonial home many times as per prosecution evidence. Just one month before her death also, she had been turned out of the matrimonial home. She was again left in the matrimonial home about only nine days before the occurrence. She was left there on 18.07.1998 and she committed suicide on 27.07.1998. It is thus manifest that demand of dowry including Rs.50,000/- from the deceased and her harassment for the same at the hands of appellant no.1 continued till soon before her death. Thus, the only remaining ingredient of the offence of dowry death is also fully proved against appellant no.1. His conviction by the trial court is well founded and is supported by cogent reasons. In view of the aforesaid discussion, conviction of appellant no.1 Gurnaib Singh is upheld, whereas conviction and sentence of appellant no.2 Ajaib Singh is set aside and he is acquitted of the charge against him giving him benefit of doubt. His bail bonds stand discharged. Fine amount, if paid by him, shall be refunded to him. As regards quantum of sentence of appellant no.1, it has to be noticed at the outset that the trial court has also imposed sentence of fine of Rs.10,000/-, besides rigorous imprisonment for seven years. However, Section 304-B IPC provides for sentence of imprisonment only and does not provide for sentence of fine. Accordingly, sentence of fine imposed on Crl. Appeal No. 1472-SB of 2001 11 appellant no.1 by the trial court is set aside. Fine amount, if paid by appellant no.1, shall be refunded to him. As regards sentence of imprisonment, the same does not warrant any reduction because imprisonment for seven years is the minimum sentence provided for the offence of dowry death under Section 304-B IPC. However, the said sentence also does not deserve any enhancement, as prayed for by the complainant in his revision petition because the occurrence took place more than 13 years ago and during this long period, appellant no.1 has faced the agony of trial including present appeal. Even conviction by the trial court was recorded ten years ago. Accordingly, sentence of imprisonment for seven years imposed on appellant no.1 by the trial court is affirmed. Resultantly, the appeal qua appellant no.1 stands dismissed except setting aside of the sentence of fine. The appeal qua appellant no.2 Ajaib Singh is allowed, whereas appeal qua appellant no.3 stands abated. Crl. Revn. No. 1807 of 2002 preferred by complainant Gurlabh Singh stands dismissed. Appellant no.1 – Gurnaib Singh, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. November 15, 2011 ( L. N. MITTAL ) monika JUDGE