Crl. Appeal No.782-SB of 1996 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.782-SB of 1996 Date of Decision : May 15, 2009 1.Jangir Kaur wife of Joginder Singh, son of Hazura Singh, r/o Gurusar. 2.Balour Singh s/o Joginder Singh son of Hazura Singh,r/o Gurusar. .... Appellants. Versus The State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. T.S. Sangha, Senior Advocate with Mr. H.S. Sangha, Advocate for the appellants. Ms. Manjari Nehru Kaul, DAG, Punjab for the respondent-State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 31.10.1996, rendered by the Court Crl. Appeal No.782-SB of 1996 --2-- of Sessions Judge, Bathinda, vide which it convicted and sentenced the accused (now appellants), as under: Names of the accused (now appellants) The offence for which conviction was recorded. Sentence awarded Jangir Kaur and Balour Singh 304-B IPC Rigorous imprisonment for seven years each. Fine of Rs.10,000/-each. In default of payment of fine to undergo rigorous imprisonment for one year each. 2. The facts, in brief, are that Balour Singh and his brother Balam Singh of Gurusar Jaga, were married to two sisters namely Gurmail Kaur alias Melo and Chhinder Kaur, on 20.03.1989 in Panniwala Ruldu. After a year of the marriage, Jangir Kaur and Balour Singh, accused, started maltreating Gurmail Kaur. He put pressure on her to bring more dowry. About two years, prior to the occurrence, Gurmail Kaur was beaten by the accused and turned out her matrimonial home. She was told that she should bring Rs.10,000/- from her parents.On coming to know of this, her uncle Angrez Singh, father Baldev Singh and Ajmer Singh took Gurmail Kaur back Crl. Appeal No.782-SB of 1996 --3-- to her matrimonial home. 4-5 days prior to the occurrence, Gurmail Kaur's mother, met her (Gurmail Kaur), who again told her (Gurmail Kaur's mother) that the accused were maltreating her and asked to bring Rs.10,000/- from her parents, failing which, she would either be murdered or left at her parental home. 2-A. It was further stated that on February 9, 1995 Gurdip Kaur, mother of Gurmail Kaur, narrated this incident to her brother-in-law, Angrez Singh. Accordingly, on the following day, Angrez Singh and Bharpur Singh, went to Gurusar Jaga to bring Gurmail Kaur. It was further stated that when they reached in front of the house of the accused at about 2.00 PM, Chhinder Kaur, came from the fields and told them that on the previous night, the accused had either administered poison or throttled Gurmail Kaur, to death. Angrez Singh and Chhinder Kaur went inside the house of the accused and found the dead body of Gurmail Kaur, lying on a cot in side the verandah. Angrez Singh left Bharpur Singh with the dead body, and proceeded to lodge the report when, on the way, he Crl. Appeal No.782-SB of 1996 --4-- met Nazar Singh, Sub Inspector, who recorded his statement, Ex.PA, on the basis whereof, FIR Ex.PA/2, was recorded. Thereafter, Nazar Singh, Sub Inspector, came to Gurusar Jaga, and examined the dead body , which was lying on the cot, in the house.He prepared the inquest report Ex.PD. Site plan of the place of occurrence, was prepared. He recorded the statements of the witnesses. The dead body was sent for post-mortem examination, alongwith request Ex.PC, through Kuldip Singh, Constable and Mohinder Pal. After the receipt of report of the Chemical Examiner, the doctor opined that the death of Gurmail Kaur, took place on account of organo phosphorus poisoning, which is a group of insecticides, as this type of insecticide was detected, in the stomach, small intensities, liver, spleen, kidney and blood of the deceased. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate,the accused were supplied the copies of documents, relied upon by the prosecution. Crl. Appeal No.782-SB of 1996 --5-- 4. After the case was received by commitment, charge under Section 302 read with Section 34 of the Indian Penal Code and in the alternative charge under Section 304-B of the Indian Penal Code against the accused, was framed, to which they pleaded not guilty and claimed judicial trial. 5. The prosecution, in support of its case,examined Angrez Singh,(PW-1), Dr. Sat Pal Garg, Medical Officer, (PW-2), Chhinder Kaur, (PW- 3), Gurdip Kaur,(PW-4), and Nazar Singh, the Investigating Officer, (PW-5). The Public Prosecutor for the State, tendered into evidence the affidavit of Manjit Singh, Head Constable, Ex.PG, with regard to the delivery of viscera to the Chemical Examiner, Patiala and to the Histopathologist, Shri Guru Gobind Singh, Medical College, Faridkot, affidavit of Kuldip Singh, Constable, Ex.PJ, with regard to the post-mortem examination of Gurmail Kaur, and the affidavit of Mohinder Pal, Constable, Ex.PK also with regard to the taking of viscera for examination by the Chemical Examiner, Patiala, and the Crl. Appeal No.782-SB of 1996 --6-- Histopathologist at Faridkot. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. The accused admitted their inter-se relationship and marriage of Balour Singh and Balam Singh with Gurmail Kaur and Chhinder Kaur, respectively, on the same day, but denied that the date of marriage was March 20, 1989. Instead, it was stated that the marriage had taken place about 7-1/2 years,prior to the present occurrence. The other aspects of the case with regard to the maltreatment of Gurmail Kaur, in connection with the demand of Rs.10,000/-, the meeting between Gurdip Kaur and Gurmail Kaur, deceased, 5/6 days before the occurrence and the visit of Angrej Singh, to the matrimonial home of Gurmail Kaur, were denied. Balour Singh, accused, took up the following plea:- Crl. Appeal No.782-SB of 1996 --7-- “I am innocent. I and my brother Balam Singh were living in the same house and were joint in miss and cultivation. Gurmail Kaur deceased was not tempered. On the night between 9/10.2.1995 both Chhinder Kaur and Gurmail Kaur quarreled over spinning. Gurmail Kaur committed suicide. At that time, I was present in the fields while guarding the wheat crops. Where I was informed by my brother Balam Singh. My mother Jangir Kaur was present at the house of Ram Singh son of Baldev Singh in connection with the marriage of Ram Singh. She was called from the house of Ram Singh by me. I sent Mithu Singh, Jaswant Singh and Dr. Sharma in a jeep Crl. Appeal No.782-SB of 1996 --8-- to inform the parents of Gurmail Kaur and I informed SHO Nazar Singh about suicide by Gurmail Kaur. Angrez Singh, complainant alongwith many people of his village accompanied him and pressurized SHO Nazar Singh to register a false case. Complainant party was annoyed with us because we were not sending Chhinder Kaur and Gurmail Kaur frequently to their parental house. They also got annoyed when they were informed about the quarrel between Chhinder Kaur and Gurmail Kaur, resulting in suicide by Gurmail Kaur.” 7. In their defence,the accused examined Karamjit Singh, DW1, Jaswant Singh, DW-2, Mithu Singh, DW-3 and Balam Singh, DW-4. Thereafter, they closed their defence evidence. Crl. Appeal No.782-SB of 1996 --9-- 8. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 9. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal,was filed by the appellants. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. For constituting the offence, punishable under Section 304-B of the Indian Penal Code, the prosecution was required to prove that Gurmail Kaur, died within seven years of her marriage,otherwise,than under normal circumstances, and soon before her death, she was subjected to cruelty, in connection with the demand of dowry. Once these ingredients are proved by the prosecution, then the statutory presumption, under Section 113-B Evidence Act, operates that it was a case of dowry death. No doubt, such presumption is Crl. Appeal No.782-SB of 1996 --10-- rebuttable. In the instant case, it was proved from the evidence, on record, that the death of Gurmail Kaur, deceased, took place on account of organo phosphorus poisoning. It means that the death of the deceased, took place otherwise than under normal circumstances. 12. Now, let us see, as to whether, the remaining two ingredients i.e. she died within seven years of her marriage and soon before her death, she was subjected to cruelty, in connection with the demand of dowry, by the accused, stood proved or not. The Counsel for the appellants, submitted that the prosecution miserably failed to prove that Gurmail Kaur, died within seven years of her marriage. He further submitted that, as such, one of the ingredients, required for constituting the offence, punishable under Section 304-B of the Indian Penal Code, did not stand proved and, thus, the trial Court was wrong in recording conviction and awarding sentence, to the accused. The submission of the Counsel for the appellants, in this regard does not appear to be correct. Angrej Singh, (PW-1), uncle of the deceased, while Crl. Appeal No.782-SB of 1996 --11-- appearing, in the witness box, in clear-cut terms stated that Chhinder Kaur was married to Ballam Singh and Gurmail Kaur was married to Balour Singh, accused. Both Ballam Singh and Balour Singh are the real brothers. He further stated that both of them were married on one and the same day i.e. 20.03.1989. He was put the suggestion, during the course of cross-examination that the marriage of Gurmail Kaur had taken place about 7-1/2 years ago. He specifically denied the same. Gurdip Kaur,(PW- 4), the mother of the deceased, stated that Gurmail Kaur was married to Balour Singh, six years prior to the occurrence. It is, no doubt, true that no marriage-card or other documentary proof, with regard to the date of marriage, was produced and proved by the prosecution. In the absence of any documentary evidence, the Court is required to rely upon the ocular evidence, produced by the prosecution. During the course of cross-examination of the prosecution witnesses, as also in their statements, under Section 313 Cr.P.C., the accused took up the plea that the marriage took place 7-1/2 years prior to the occurrence. The defence Crl. Appeal No.782-SB of 1996 --12-- witnesses, during the course of their statements, recorded on 25.09.1996 and 29.10.1996, stated that the marriage of Gurmail Kaur with Balour Singh took place, about 9-1/2 years earlier. Since the sister of the deceased was also married to Balam Singh, brother of Balour Singh, accused, (husband of the deceased ) on the same day, the accused was also within the special means of knowledge as to when the marriage of the deceased took place with Balour Singh. The accused could also produce the copy of invitation-card, or the Priest, who performed the marriage, but they failed to do so. In these circumstances, the reliable evidence of Angrez Singh,(PW-1) and Gurdip Kaur, (PW-4) that the marriage of Gurmail Kaur with Balour Singh,accused, took place about six years before the occurrence, was required to be believed. The trial Court was, thus, right in coming to the conclusion, that Gurmail Kaur, died within seven years of her marriage,otherwise,than under normal circumstances. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands Crl. Appeal No.782-SB of 1996 --13-- rejected. 13. The next submission of the Counsel for the appellants, was to the effect, that no worthwhile evidence was produced by the prosecution, to prove that Gurmail Kaur was being tortured, in connection with the demand of dowry, from time to time, and that this cruelty continued till the date of her death. The submission of the Counsel for the appellants, in this regard, also seems to be incorrect. The perusal of the statements of Angrej Singh, PW-1, Chhinder Kaur, PW-3 and Gurdip Kaur, PW-4, clearly revealed that Gurmail Kaur was subjected to cruelty in connection with the demand of Rs./10,000/-. This amount was demanded by the accused from Gurmail Kaur, in connection with the relationship of marriage, in the shape of dowry. Had there been no relationship of marriage, between Gurmail Kaur and Balour Singh, such a demand of Rs.10,000/- would have not been made. In that event, this amount would have been taken by the accused either as a loan or in some other way. It is further evident from the statements of the witnesses that this Crl. Appeal No.782-SB of 1996 --14-- demand continued up to the death of the deceased. It was proved from the statements of these witnesses that on 09.02.1995 Gurdip Kaur, sister- in-law of Angrej Singh, called him, at his house, and told about her having called at Gurmail Kaur, about 5/6 days prior thereto. She told him that the accused were maltreating Gurmail Kaur. She further told him that Gurmail Kaur was asked to bring Rs.10,000/- by the accused, failing which, they would commit her murder or send her to her parental home. It was not necessary, for the witnesses to disclose, as to for what purpose, a sum of Rs.10,000/- in cash, was demanded by Balour Singh, husband of the deceased. Not only this, it was also proved from the statements of these witnesses that Balour Singh, accused started putting pressure on Gurmail Kaur, for bringing more dowry. These witnesses were thoroughly cross- examined. During the course of cross-examination, nothing of consequence, could be got elicited from their mouth, which may go to discredit their evidence. They stood the test of touch-stone of all probabilities, during the course of cross- Crl. Appeal No.782-SB of 1996 --15-- examination. There was no reason, on the part of these witnesses, to depose falsely, at least against Balour Singh, husband of the deceased. Even otherwise, there was no reason on the part of the deceased to commit suicide by consuming organo phosphorus and end her life, had she been not tortured in connection with the demand of Rs.10,000/- in cash, in the shape of dowry, by Balour Singh, accused. The trial Court was, thus, right in holding that Gurmail Kaur was subjected to cruelty in connection with the demand of dowry, as also a sum of Rs.10,00/- in cash, in the shape of dowry. The trial Court was also right in holding that this demand continued up-to the death of the deceased. The finding of the trial Court that Gurmail Kaur was tortured, in connection with the demand of dowry and cash in the sum of Rs.10,000/-, in the shape of dowry, which continued upto her death, being correct, is endorsed. 14. It was next submitted by the Counsel for the appellants, that the brother of the deceased was a poor person and, therefore, the accused, could not be expected to demand dowry from Crl. Appeal No.782-SB of 1996 --16-- the deceased or from her brother. Angrej Singh, (PW-1), during the course of cross-examination stated that the brother of the deceased owns five acres of land, out of which three acres of land was Barani and two acres of land was Nehri. He further stated that she did not know as to how much land was being held by the accused. The mere fact that the brother of the deceased was holding three acres of Barani and two acres of Nehri land, did not mean that the accused could not demand dowry. The greed of a man, needs no bounds. It was proved from the cogent, and convincing evidence of the prosecution that Gurmail Kaur was tortured in connection with the demand of dowry and cash in the sum of Rs.10,000/- in the shape of dowry, until her death. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected. 15. Now coming to the liability of the accused, it may be stated here, that Jangir Kaur, accused, was apparently falsely implicated, in the instant case. Demand of more dowry and cash, in the sum of Rs.10,000/- in the shape of dowry, could Crl. Appeal No.782-SB of 1996 --17-- only be made by Balour Singh, husband of the deceased. It was he, who was to be benefitted by such a demand. Jangir Kaur, mother-in-law of the deceased, could not be said to be a beneficiary of such a demand. It is a matter of common knowledge that as and when a bride dies otherwise under normal circumstance, then no love is lost between her family members and the members of her in-laws. In those circumstances, the kith and kin of the deceased are out and out to implicate as many members of the in-laws family, as they can , to take revenge. It appears that, on account of this reason, Jangir Kaur, mother of Balour Singh, was named as an accused. No reliable evidence was produced that Jangir Kaur also made demand of dowry or cash amount in the sum of Rs.10,000/- in the shape of dowry, from the deceased or from her brother. Out of abundant caution, Jangir Kaur, deserves to be given the benefit of doubt. The submission of the Counsel for the appellants that Jangir Kaur did not commit any offence, therefore, being correct, is accepted. The finding of the trial Court to the extent that Balour Singh Crl. Appeal No.782-SB of 1996 --18-- subjected Gurmail Kaur, in connection with the demand of dowry, soon before her death and, thus, he committed the offence, is correct. The finding of the trial Court that Jangir Kaur also committed the offence, punishable under Section 304-B of the Indian Penal Code is not based on the correct appreciation of evidence and law, on the point, and deserves to be set aside. 16. No other point, was urged, by the Counsel for the parties. 17. For the reasons recorded above, Criminal Appeal No. 782-SB of 1996, filed by Balour Singh, accused, is partly accepted in the manner that the judgment of conviction and the order of substantive sentence awarded to him are upheld. Section 304-B of the Indian Penal Code does not provide for the imposition of fine. As such, the trial Court was wrong in imposing fine of Rs.10,000/-. The sentence of fine and sentence awarded in default of payment of fine, are set aside. The appellant, instead shall pay Rs.10000/- as compensation. The amount of compensation, when paid/deposited, shall be disbursed to the legal Crl. Appeal No.782-SB of 1996 --19-- heirs of the deceased, legally entitled in equal shares, if more than one. The amount of fine, if already deposited, shall stand converted into compensation. If, Balour Singh, appellant, is on bail, his bail bonds shall stand cancelled. 18. The appeal filed by Jagir Kaur, is accepted. The judgment of conviction and the order of sentence dated 31.10.1996 , rendered by the trial Court qua her, are set aside. She is acquitted of the charge framed against her. If she is on bail, she shall stand discharged of her bail bonds. If, she is in custody, she shall be set at liberty, at once, if not required, in any other case. 19. The Chief Judicial Magistrate, shall take necessary steps,to comply with the judgment, qua Balour Singh, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and qua Jangir Kaur, in accordance with law, and submit the compliance report within two months. 20. The District & Sessions Judge, is also directed to ensure that the directions, Crl. Appeal No.782-SB of 1996 --20-- referred to above, are complied with, and the compliance report is sent within the time frame. 21. The Registry shall keep track of the matter, and put up the compliance report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the same. (SHAM SUNDER) May 15, 2009 JUDGE dinesh