Crl.Appeal No.723-DBA of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.723-DBA of 2001 DATE OF DECISION: FEBRUARY 22, 2010 State of Punjab .....APPELLANT Versus Joginder Kaur and another ....RESPONDENTS CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Ms. Gurveen H. Singh, Addl. Advocate General, Punjab, for the appellant. Mr. T.S. Sangha, Sr. Advocate with Mr.Narinder Singh, Advocate, for the respondents. Mr. Amrik Singh Kalra and Ms. Sukh Preet Kaur, Advocates, for the complainant. .. SATISH KUMAR MITTAL, J. This is State appeal against acquittal of respondents Joginder Kaur, aged about 70 years and her son Jaspal Singh, aged about 30 years from the charge under Section 302 IPC for causing the death of Maninder Kaur wife of Jaspal Singh accused as well as alternative charge for causing the dowry death under Section 304-B IPC. In the present case, the marriage of deceased Maninder Kaur was solemnized with accused Jaspal Singh on 7.2.1993. There was no issue from this wedlock. On 7.8.1996 at about 12.50 PM, she was taken to Civil Hospital, Raman and was admitted there as a suspected case of poisoning. PW3-Dr. Rakesh Kumar Gupta admitted the patient and treated her. Crl.Appeal No.723-DBA of 2001 -2- According to PW3, the patient was brought to the hospital by Jaswant Singh son of Harnek Singh. He sent a ruqa to the police. ASI Amarnath (PW14) reached the hospital. He moved an application for seeking opinion from the doctor about the fitness of the patient Maninder Kaur to make the statement. PW3-Dr. Rakesh Kumar Gupta declared at 1.25 PM that the patient was unfit to make the statement vide opinion Ex.PK. In the meanwhile, the parents of Maninder Kaur, who were residing in village Ramsara also reached the hospital. At about 6.15 PM, ASI Amarnath again moved an application seeking opinion of the doctor about the fitness of the patient. Vide opinion (Ex.PE/1) of Dr. Rakesh Kumar Gupta (PW3), the patient was declared fit to make the statement. In the meanwhile, ASI Amarnath (PW14) by moving an application (Ex.PD) before the SDM, Talwandi Sabo, got an order that Gurdev Singh, Tehsildar, Talwandi Sabo shall record the statement of Maninder Kaur. After obtaining the opinion of the doctor, PW2-Gurdev Singh, Tehsildar, Talwandi Sabo recorded the statement of Maninder Kaur at 10.00 PM in the presence of Dr. Rakesh Kumar Gupta (PW3). In her statement (Ex.PF), Maninder Kaur stated that on 7.8.1996 at about 10/11 AM in the morning, her mother-in-law Joginder Kaur served her tea in a steel saucer. While taking the said tea, she felt its taste as bitter. She was under the impression that her mouth had bitter taste due to fever, so she was feeling the taste of the tea as bitter. Immediately after serving the tea, her mother-in-law Joginder Kaur went out. Then she became unconscious. Before becoming unconscious, she had cried loudly. After that, she did not know where she was lying. When she regained consciousness, she found herself lying in the hospital. She was now Crl.Appeal No.723-DBA of 2001 -3- conscious. She stated that some poisonous substance was administered to her after putting the same in tea. It was administered to her by her mother- in-law Joginder Kaur. She has committed this act with intention to kill her as she already used to harass her very much. Her husband and his brother and sister-in-laws had gone out of the house since morning. Surprisingly, after recording the aforesaid statement at 10.00 PM, ASI Amarnath again recorded the statement of Maninder Kaur on the same day at 10.45 PM, on the basis of which, formal FIR (Ex.PM/2) was registered at 10.50 PM on the same day. In the said statement (Ex.PM), Maninder Kaur stated that she was married with Jaspal Singh son of Dhanna Singh, resident of village Maanwala for about four years. Her husband Jaspal Singh and his younger brother Jagroop Singh had left the house in the morning for going to her sister-in-law at village Jangirana. Her mother- in-law Joginder Kaur was alone at the house. At about 10/11 AM, her mother-in-law offered the tea to her in steel saucer. While taking the tea, she felt its taste bitter. She was under impression that due to fever, she was feeling bitter taste. After serving the tea in saucer, her mother-in-law went out of the house. Thereafter she cried loudly and became unconscious. When she regained consciousness, she found herself admitted in Civil Hospital, Raman. Her mother-in-law earlier also used to harass her and today (7.8.1996) poisonous substance was administered to her in the tea by her mother-in-law alone with intention to kill her. On 8.8.1996 at 6.45 AM, Maninder Kaur had died. The information regarding her death was sent to the police vide ruqa Ex.PJ. On 8.8.1996, PW1-Dr. K.S. Brar and PW4-Dr. S.S. Malik conducted the post- mortem examination of the deceased at 1.30 PM. The post-mortem report Crl.Appeal No.723-DBA of 2001 -4- has been exhibited and proved as Ex.PB on the record. During her post- mortem examination, it was noticed that right lung and left lung of the deceased were slightly congested and heart was healthy. Thorax part was healthy. The abdomen stomach was healthy. Small intestines were also healthy and contained chyme. Large intestines were healthy and contained feacal matter. The bladder was healthy and empty. Liver, spleen and kidneys were slightly congested. During the post-mortem examination, viscera from the body of the deceased was taken and put up in six jars duly sealed and handed over to the police for chemical examination and Histopathological examination. The opinion with regard to cause of death was deferred to await the report of the Chemical Examiner and Histopathological report. In cross-examination, PW1-Dr. K.S. Brar has stated that he had received the report and as per the report no poison was found in the exhibits sent by him for chemical and Histopathological examinations. PW4-Dr. S.S. Malik, who also conducted the post-mortem along with Dr. K.S. Brar, has corroborated the statement given by Dr. K.S. Brar. In cross-examination, he has also stated that as per the report dated 15.11.1996 of Chemical Examiner, Patiala, no poison was detected in the contents of Exh. No.I, II, III and IV. He has stated that after that the police did not get any opinion from him about the cause of death. During investigation, on 29.8.1996, the statements of PW5- Mohinder Singh, father of the deceased, PW6-Angrej Singh, brother of the deceased and other prosecution witnesses were recorded by the police under Section 161 Cr.P.C. On 30.8.1996, both the accused were arrested. As per the prosecution, they were produced before the police by PW7-Makhan Singh, before whom they also made extra-judicial confession. Thereafter the Crl.Appeal No.723-DBA of 2001 -5- offence under Section 304-B IPC was added and finally the challan was filed against both the accused under Sections 302/304-B/120-B IPC. They were charge-sheeted under Section 302 IPC for causing the death of Maninder Kaur. In the alternative, they were charge-sheeted under Section 304-B IPC. The accused pleaded not guilty to the charge and claimed trial. In support of its case, the prosecution examined in addition to PW1-Dr. K.S. Brar, PW3-Dr. Rakesh Kumar Gupta, PW4-Dr. S.S. Malik, PW2-Gurdev Singh, Tehsildar, Talwandi Sabo, who recorded the statement of Maninder Kaur (deceased) before her death;PW5-Mohinder Singh, father of the deceased, who put forward the prosecution story with regard to harassment of the deceased on account of demand of dowry. According to him, after marriage, accused Jaspal Singh (husband) and mother-in-law of the deceased, namely, Joginder Kaur used to quarrel with his daughter on account of not giving proper dowry as per their demand. Accused Jaspal Singh used to say that he did not like her. They demanded Rs.15,000/- and a Bajaj Chetak scooter. Whenever his daughter visited to him, she used to tell him about the above-said demand and mal-treatment by the accused. After about one year of the marriage, he along with his brother Bant Singh and his brother-in-law Jagroop Singh went to the accused and told them that they were the poor persons and were unable to meet their demand, but the accused used to quarrel with his daughter and turned her out of the matrimonial home. Thereafter she came to their house and told them that the accused were demanding Rs.15,000/- and a Bajaj Chetak scooter. Then his daughter remained with them for 2/3 months. Thereafter, he along with his brother Bant Singh, his brother-in-law Jagroop Singh and other respectables of the village along with his daughter Maninder Kaur went to Crl.Appeal No.723-DBA of 2001 -6- the accused and paid Rs.10,000/- to them and then they left his daughter to live in the matrimonial home. Before 7/8 days of the occurrence, he along with his son Angrej Singh went to see his daughter Maninder Kaur in her matrimonial home. Then she told them that accused Jaspal Singh and her mother-in-law Joginder Kaur maltreated her for the remaining amount of dowry. They made promise to the accused that they would meet their demand on coming Rakhri festival and thereafter came to their house. After few days, they received the information that accused have given some poison to his daughter in tea and she was admitted in the hospital. When they went to the hospital, his daughter was unconscious, but later on when she regained consciousness she told him that accused had maltreated her due to demand of dowry and had given poison to her. Similar statement was made by PW6-Angrej Singh, but there are many contradictions in the statements of these two witnesses. The prosecution also examined PW7-Makhan Singh, before whom both the accused were alleged to have made extra-judicial confession. The said witness belongs to a different village. The prosecution further examined PW8-Makhan Singh son of Mehar Singh, resident of a different village, who stated that he had heard the accused talking that there was a dispute in the house. PW9-HC Mithu Ram, PW10-HC Gurkirat Singh, PW11-HC Gurpal Singh, PW12-Constable Balbir Singh and PW13-Constable Chamkaur Singh are the formal witnesses. PW14-ASI Amar Nath, who partly investigated the matter. He did not give any reason why he had not obtained the opinion of the doctor with regard to cause of death of the deceased. PW15-SI Danesh Kumar is again the Investigating Officer, who partly investigated the matter. He also could not explain why he had Crl.Appeal No.723-DBA of 2001 -7- not obtained the opinion of the doctor with regard to cause of death of the deceased. It is admitted position that in this case the prosecution did not place on record the report of the Chemical Examiner and Histopathological report. In their statements under Section 313 Cr.P.C., both the accused pleaded innocence and stated that they were falsely implicated. They took the plea that on the day of the occurrence they were not present in the house. In their defence, the accused examined Jaswant Singh (DW1), who, according to PW3-Dr. Rakesh Kumar Gupta, got admitted the deceased in the hospital. According to him, on the day of the occurrence at about 10.00 AM, when he was crossing in front of the house of accused Jaspal Singh, Maninder Kaur (deceased) was cleaning the floor of her house. After ten minutes when he was returning back after doing his work, then he saw that Maninder Kaur was lying unconscious. At that time, except Maninder Kaur, no one else was present in the house. He and Gurcharan Singh shaken Maninder Kaur, but she did not return to senses. Then they removed her in a jeep to Raman where the private doctor refused to admit her and then they got her admitted in Civil Hospital, Raman. Her parents were informed. He made the statement to this effect before the police. The trial Court, after considering the evidence led by the prosecution as well as defence, came to the conclusion that the prosecution has failed to prove the cause of death of Maninder Kaur. It has also failed to prove that she had died due to administering the poison. There is no evidence that the death of Maninder Kaur was unnatural. It has also been found that the prosecution has failed to establish that soon before her death the deceased was subjected to harassment or cruelty on account of demand Crl.Appeal No.723-DBA of 2001 -8- of dowry by the accused. The statements of PW5-Mohinder Singh and PW6-Angrej Singh were held to be not reliable. The statement of PW7- Makhan Singh, before whom extra-judicial confession was made, was also held to be not reliable. Further, the statement of PW8-Makhan Singh son of Mehar Singh, who stated that he heard both the accused talking that there was a dispute in the house and he did not know what was the matter of dispute, also was held to be not reliable. While recording these findings, the trial Court acquitted both the accused. Hence this appeal. Learned counsel for the appellant-State, assisted by Shri Amrik Singh Kalra, learned counsel for the complainant, argued that in the instant case the trial Court has wrongly acquitted both the accused while totally ignoring the dying declaration made by the deceased before the Tehsildar, which has been duly proved by PW2-Gurdev Singh, Tehsildar-cum- Executive Magistrate as well as PW3-Dr. Rakesh Kumar Gupta. The said dying declaration was recorded by PW2-Gurdev Singh after obtaining opinion from the doctor regarding fitness of the patient. PW3-Dr. Rakesh Kumar Gupta had stated that PW2-Gurdev Singh, Tehsildar-cum-Executive Magistrate recorded the dying declaration of the deceased after obtaining his opinion and throughout the recording of the statement, he remained present. The patient Maninder Kaur was conscious when she had put her thumb impression on the said statement. Learned counsel argued that similar statement was made by the deceased before PW14-ASI Amar Nath. Learned counsel argued that from the aforesaid dying declarations, two things have been established. Firstly, that the mother-in-law of the deceased gave her tea in the saucer and after taking the said tea, which was having bitter taste, she became unconscious, and she had given some poisonous Crl.Appeal No.723-DBA of 2001 -9- substance in the tea to her with intention to kill her as she already used to harass her. Learned counsel argued that on account of taking the said tea, Maninder Kaur had died on 8.8.1996 at 6.45 AM. Learned counsel argued that the said death was unnatural. Coupled with this evidence, learned counsel further argued that PW5-Mohinder Singh and PW6-Angrej Singh have further established that the accused used to harass the deceased on account of demand of dowry and soon before her death a demand was made and the deceased was harassed. In view of these evidence, learned counsel submitted that the prosecution has fully established the offence under Section 304-B IPC as under Section 113-B of the Indian Evidence Act, 1872 (hereinafter referred to as `the Act'), the burden lies on the accused to prove that they had not committed any dowry death. Therefore, acquittal of both the accused by the trial Court is wholly illegal and unjustified. On the other hand, Shri T.S. Sangha, learned senior counsel for the respondents accused argued that in the instant case the prosecution has failed to prove the basic ingredients of the offence under Section 304-B IPC. He further argued that when the prosecution has even failed to prove that the death of Maninder Kaur was unnatural, no burden under Section 113-B of the Act to prove that he has not caused the dowry death, shifts on the accused. Therefore, he argued that there is no illegality, infirmity or perversity in the judgment passed by the trial Court whereby both the accused have been rightly acquitted. We have considered the submissions made by the learned counsel for the parties and gone through the record of the case. In the present case, the prosecution has completely failed to prove the fact that the deceased had died due to poisoning. No opinion of Crl.Appeal No.723-DBA of 2001 -10- the doctor in this regard was obtained and has been placed on record and proved. It has come in evidence that during the post-mortem examination, the viscera from the body of the deceased was taken and put up in six jars duly sealed and handed over to the police for chemical examination and Histopathological examination. Neither the report of the Chemical Examiner nor Histopathological report has been placed on record and proved by the prosecution. However, in cross-examination, PW1-Dr. K.S. Brar has stated that he had received the report and as per the said report no poison was found in the exhibits sent by him for chemical and Histopathological examinations. Though the report of the Chemical Examiner has not been tendered in evidence by the prosecution. On the other hand, it was tendered in evidence by the accused which is Ex.DA on the record. According to the said report of the Chemical Examiner, no poison was detected in the contents of the exhibit sent by PW3-Dr.Rakesh Kumar Gupta. So, the prosecution has miserably failed to establish that deceased Maninder Kaur had died due to poisoning. In her statements (Ex.PF) made before PW2-Gurdev Singh, Tehsildar, Talwandi Sabo as well as (Ex.PM) made before PW14-ASI Amar Nath, she had stated that her mother-in-law had given her tea in the saucer, which was bitter in taste, and after taking the tea she became unconscious. According to her, some poison was administered to her by her mother-in-law in the tea with intention to kill her. Even if the said part of the statement is accepted, it has not been proved that what was given to her in the tea was poisonous and she had died due to that. Neither there is any report to the effect that in the body of the deceased there was poison nor there is any medical opinion that she had died due to poison. In such a situation, it cannot be said that the accused had caused the Crl.Appeal No.723-DBA of 2001 -11- death of the deceased by administering her poison. Further, the statement of PW7-Makhan Singh, before whom extra-judicial confession was made by both the accused to the effect that they had given some poisonous substance by mixing the same in tea to Maninder Kaur and due to that she died, has also not been relied upon by the trial Court. It has been held that the statement of the said witness, who did not hold any official position and who was having no intimacy with the accused persons, cannot be believed because there was no occasion for the accused to go to Makhan Singh, a resident of different village and make the confessional statement. Similarly, the statement of PW8-Makhan Singh son of Mehar Singh to the effect that when he had gone to village Manwala to see Jagga Singh and, when he was crossing in front of the main gate of accused Jaspal Singh, he heard both the accused talking that there was a dispute in the house, has also not been relied upon by the trial Court, particularly when he did not know what was the matter of dispute. His presence at the spot was also found doubtful. It has been further observed by the trial Court that since the said witness was a resident of village Kotli, which was at a distance of 35-40 Kms. from village Manwala, there was no occasion for him to hear the talk going on between both the accused particularly when at that time he did not know as to what was the cause of dispute. Shri Amrik Singh Kalra, learned counsel for the complainant, while referring to one suggestion given to PW5-Mohinder Singh to the effect that she (deceased) consumed some poisonous substance herself, itself establishes that the accused have admitted that the deceased had died due to poisoning. We are afraid that on such suggestion put to PW5- Crl.Appeal No.723-DBA of 2001 -12- Mohinder Singh, it can be inferred that the deceased had died due to poisoning. In our opinion, on such suggestion an accused cannot be held guilty for committing the offence under Section 302 IPC. In order to convict an accused for the offence of murder by intentionally giving to the deceased poison with intention to kill her, it was necessary for the prosecution to prove that the cause of death was due to poisoning. No such evidence has been led by the prosecution. In our view, in these circumstances, the trial Court, while relying upon the decision of the Supreme Court in Bhupendra Nath Vs. State of Bihar, 1992(2) Recent Criminal Reports 363, has rightly acquitted the accused from the charge under Section 302 IPC. In that case also in similar circumstances, where the cause of death was not proved, the Supreme Court acquitted the accused from the charge under Section 302 IPC. In these facts and circumstances, we are of the opinion that no offence under Section 302 IPC is made out against both the accused. Now it has to be considered as to whether both the accused have committed the offence of dowry death as punishable under Section 304-B IPC. In order to convict an accused under Section 304-B IPC, the prosecution is required to establish the four ingredients- (a) that the death of a woman is caused either by burns or bodily injury or otherwise than under normal circumstances; (b) such death must be within 7 years of her marriage; (c) that soon before her death, she was subjected to cruelty or harassment by husband or relative of the husband on account of demand of dowry; and (d) such demand of dowry must have taken place soon before her death. Section 113-B of the Act provides presumption as to dowry death. Under this provision, the presumption of dowry death caused by a Crl.Appeal No.723-DBA of 2001 -13- person arises only if it is shown by the prosecution that the woman has died unnatural death within seven years of her marriage and soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry. In the instant case, there is no evidence that the deceased had died an unnatural death; it was not the death due to burning; it was also not found a death due to poisoning. In this case even the opinion of the doctor about the cause of death has not been obtained. PW15-SI Danesh Kumar, Investigating Officer, who partly investigated the matter, could not explain why he had not obtained the opinion with regard to cause of death of the deceased. In absence of any medical opinion about the cause of death, the trial Court has rightly come to the conclusion that the prosecution failed to prove that in the instant case the death of the deceased was unnatural. As per the dying declaration, the deceased was having fever. She could have died due to that. In absence of evidence about the cause of death, in this case, it cannot be said that deceased had died an unnatural death. Secondly, the evidence led by the prosecution in order to establish that soon before her death the deceased was subjected to cruelty due to non-fulfillment of the demand of dowry, has rightly not been relied upon by the trial Court being unreliable and untrustworthy. The statements of PW5-Mohinder Singh and PW6- Angrej Singh, father and brother of the deceased, respectively, with regard to demand of dowry, have been discarded by the trial Court by considering them unreliable piece of evidence. In our opinion, the trial Court has rightly found the statements of these two witnesses as unreliable because their allegations have not been corroborated by the dying declaration. Not only this, there are major contradictions in the statements of these two witnesses. Crl.Appeal No.723-DBA of 2001 -14- PW5-Mohinder Singh in his statement had stated that after one year of the marriage he along with his brother Bant Singh and his brother-in-law Jagroop Singh