Crl.Appeal No. 1341-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1341-SB of 2001 Date of decision: 12.1.2011 Vijay Kumar @ Kimti Lal and others … Appellants Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.K.S.Sidhu, Advocate, for the appellants. Mr.R.S.Sidhu, AAG, Punjab. … JORA SINGH, J. This is an appeal filed by Vijay Kumar @ Kimti Lal and others to challenge the judgment of conviction and order of sentence dated 6.8.2001 passed by Addl. Sessions Judge, Ludhiana, in Sessions Case No. 9 dated 15.9.1999, arising out of FIR No.188 dated 21.9.1997 under Sections 304-B/34 IPC, P.S. Focal Point, Ludhiana. By the said judgment, they were convicted under Sections 304- B/34 IPC and sentenced to undergo RI for ten years and to pay a fine of Rs.3,000/-, in default of payment of fine, to further undergo SI for six months each. Prosecution story, in brief, is that Gurdev Singh, complainant, is the maternal uncle of Bobby @ Renu Bala (deceased). He is the resident of Street No. 1, Mohalla Indira Puri, Tajpur Road, Ludhiana and the above Crl.Appeal No. 1341-SB of 2001 2 said mohalla is adjoining to Street No.5, Mohalla Vishkarma Nagar, Ludhiana. Bobby was married with Vijay Kumar @ Kimti Lal son of Swaran Singh, r/o Street No.5, Vishkarma Nagar, Ludhiana, about 9 months ago. Father of Bobby had gone to some unknown place about 6 years back. Marriage of Bobby was performed by her mother Simrati according to her capacity but after marriage, Bobby used to tell the complainant and his sister Simrati that her in-laws are demanding Rs.5,000/-. Rs.5,000/- was given to Vijay Kumar but after that, in-laws of Bobby used to misbehave and maltreat her. They again started demanding Rs.50,000/- to instal a flat machine but Simrati being poor was not in a position to fulfill the demand of in-laws of Bobby. On 21.9.1997 at about 6.45 AM, complainant heard a raula in the house of in-laws of Bobby and on hearing raula, had gone there within few minutes. After reaching the house of the accused, accused were found present there. Swaran Singh and Gurbachan Kaur had caught hold Bobby from arms. Vijay Kumar was carrying a kitchen knife and gave blows in the stomach of Bobby. In the meantime, Santosh Kumari, sister of Vijay Kumar, came and she had poured kerosene on the body of Bobby. Vijay Kumar set her on fire by lighting a match stick. Bobby caught fire and raised raula for safety. Complainant tried to extinguish the fire. In the meantime, Simrati also came at the spot. Some persons from the mohalla also came there and in their presence, Bobby was saying that she was set on fire by her husband Vijay Kumar, father-in-law Swaran Singh and mother- in-law Gurbachan Kaur, for want of dowry. After committing crime, accused had fled away from the spot. Bobby was shifted to Civil Hospital, Ludhiana, after arranging a vehicle but in Civil Hospital, Ludhiana, she had Crl.Appeal No. 1341-SB of 2001 3 succumbed to her burn injuries. Police party headed by ASI Jaswinder Singh on receipt of message from Civil Hospital, Ludhiana, had gone there. Statement of Gurdev Singh was recorded, who had signed the same in token of its correctness. After making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded. Inquest report was prepared. Postmortem examination was got conducted from the hospital. After postmortem examination, dead body was handed over to the relations of the deceased. After reaching the place of occurrence, rough site plan with correct marginal notes was prepared. Knife recovered was made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Blood stained earth was also lifted from the spot and made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. After completion of investigation, challan was presented in Court. Accused were charged under Sections 304-B/34 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined number of witnesses. PW1 Gurdev Singh, complainant, has reiterated his statement before the police. PW2 Baljit Singh is the Photographer. He has taken photographs (Ex.P1 to P4. Negatives are Ex.P5 to Ex.P8. PW3 Simrati is the mother of the deceased. She has supported the version of her brother Gurdev Singh, complainant, by saying that about 9 months earlier to the occurrence, Bobby was married with Vijay Kumar Crl.Appeal No. 1341-SB of 2001 4 but appellants used to misbehave and maltreat her. At one time, Rs.5,000/- was paid to Vijay Kumar. Again appellants demanded Rs.50,000/- to instal a flat machine but she being poor was not in a position to pay Rs.50,000/-. Bobby used to inform her and Gurdev Singh that she was harassed for want of dowry by the appellants. On the day of occurrence, on hearing raula, she had gone to the house of the appellants. Vijay Kumar armed with a knife gave two blows in the abdomen of Bobby. Bobby was also set on fire by pouring kerosene. PW4 Harbans Lal has also supported the version of PW1 Gurdev Singh. PW5 Anil Kumar Kapoor prepared site plan (Ex.PF). PW6 Dr. R.K.Sharma on 21.9.1997 at 4.00 PM conducted postmortem examination on the dead body of Bobby @ Renu Bala and observed as under:- “1. Deep to super facial burns over the whole of the body with peeling of skin along with singing of hair except on the anterior aspect of both legs and feet. 2. Small lacerated wound on the 1/3rd of the forearm 1 cm x 1 cm. 3. Venesection wound on the leg with the margins stitches.” Injuries were found to be ante mortem in nature. Cause of death was due to shock and haemorrhage as a result of extensive burns. Injuries were sufficient to cause death in the ordinary course of nature. PW7 Constable Hardip Singh stated that dead body was handed over to him for getting the postmortem examination and after postmortem Crl.Appeal No. 1341-SB of 2001 5 examination, clothes worn by the deceased were handed over to him, which he handed over to the IO. Clothes were taken into police possession vide separate memo attested by him. PW8 SI Jaswinder Singh is the Investigating Officer. PW9 HC Kuldip Singh was the Incharge of Malkhana, with whom case property was deposited. Sealed parcels were handed over by him to HC Joginder Singh for depositing in the laboratory. PW10 HC Joginder Singh stated that after collecting sealed parcels from the Incharge of Malkhana, same were deposited in the office of Chemical Examiner by him. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that marriage was simple. No dowry article was received in the marriage. Case was registered after due deliberation and consultations by the witnesses with their relatives. In fact, Renu Bala was suffering from depression and was getting treatment from the doctors at Phagwara. She committed suicide by pouring kerosene due to depression. In defence, DW1 Dr.Kuldip Singh, Proprietor of Phagwara Kidney Stone Centre, Swaran Hospital, Phagwara, stated that as per record, Renu Bala came to his hospital for treatment and was checked up. Prescription slips (Ex.D1 and Ex.D2) were issued by him. As per record, Renu Bala was under depression. DW2 Dr. R.K. Sharma stated that Swaran Singh was medico legally examined by him on 25.9.1997 as per police request (Ex.DK/1) and Crl.Appeal No. 1341-SB of 2001 6 found the following injuries on his person:- “1. Identification mark old scar mark on the left shin 2-1/2” x 1-1/2” in size injury. 2. Superficial burns on the left aspect of left little finger. 3. Blister on the ring finger of left hand on the pulp of proximal joint. 4. Superficial burns on the lateral aspect of index finger, left 1/2” x 1/2”, superficial burn injury, pulp of the right middle finger. 5. Singing of face of chest with scaled on the pectoral region of bilaterally.” DW3 Nachhattar Singh stated that his house is near the house of the appellants. Family of the deceased was also known to him. There was no dispute amongst the appellants and deceased. At about 6.45 AM, while watching TV, he had heard raula and came at the spot. Girl was at fire and was raising raula. Many persons from the neighbour came at the spot. Swaran Singh also came from the ground floor and tried to extinguish fire with the help of blanket. Vehicle was arranged by Swaran Singh. Girl was removed to the hospital. Vijay Kumar was not present at the time of incident. DW4 Shingara Singh, neighbour of the appellants, stated that parties are known to him. There was no dispute amongst the appellants and the deceased. On the day of occurrence, at about 7.00 AM, on hearing raula, he had gone to the house of Swaran Singh. Swaran Singh came at the first floor and tried to extinguish the fire. He has also received burn injuries. Nachhattar Singh and some other persons from the neighbour also came at Crl.Appeal No. 1341-SB of 2001 7 the spot. Vijay Kumar was not present at the time of occurrence. Police from Tajpur Chowki came at the spot after half an hour. None of the relations of the deceased was present at the spot. Injured was shifted to the hospital by Swaran Singh. After hearing learned PP for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellants argued that Bobby @ Renu Bala was not keeping good health. She was under depression and was getting treatment from the doctors at Phagwara and this fact is clear from the statement of DW1 Dr. Kuldip Singh. Swaran Singh is the father- in-law of the deceased. When deceased was not keeping good health and was under depression and getting treatment, then she committed suicide by pouring kerosene. Swaran Singh tried to extinguish the fire. After the incident, injured was shifted to the hospital by Swaran Singh and this fact is clear from the statement of Dr. R.K. Sharma. 5 burn injuries were noticed on the person of Swaran Singh. Injuries cannot be self suffered or self inflicted. Deceased had no dispute with the appellants. Neighbours of the appellants appeared in defence and stated that they have not heard any dispute amongst the appellants and the deceased. In fact, deceased had committed suicide because she was under depression. Swaran Singh tried to extinguish the fire. Ultimately, Swaran Singh had shifted the deceased to the hospital. Vijay Kumar was not present at the time of occurrence. Swaran Singh was 78 years' old, whereas Gurbachan Kaur was 72 years' old Crl.Appeal No. 1341-SB of 2001 8 at the time of occurrence. They had not set on fire the deceased. Kerosene was poured by Santosh Kumari, but she was not challaned. According to the story, Swaran Singh and Gurbachan Kaur had caught hold the deceased, when Vijay Kumar gave knife blows but knife blows were not noticed by the doctor. Argued that evidence on the file was not properly scrutinized by the trial Court. Learned State counsel argued that 9 months earlier to the occurrence, deceased was married with Vijay Kumar. Occurrence is at the house of in-laws. Death was unnatural as per postmortem report. No documentary proof on the file that deceased was not keeping good health and was under depression. When deceased was not under depression, then no question of suicide. Vijay Kumar did not state a word that he was not present at the spot. According to defence version, deceased committed suicide by pouring kerosene. Swaran Singh had tried to extinguish the fire and received burn injuries. But Swaran Singh was medico legally examined on 25.9.1997. Doctor did not state a word that injuries noticed were suffered in the same incident dated 21.9.1997. No suggestion to the witnesses that Swaran Singh had shifted the deceased to the hospital or tried to extinguish the fire. Suggestion was given to the complainant that Swaran Singh along with Nachhattar Singh and one Shingara Singh extinguished the fire. Nachhattar Singh and Shingara Singh when appeared in defence, then did not state a word that they had extinguished the fire. Nachhattar Singh and Shingara Singh stated that Swaran Singh had extinguished the fire and later on, he had shifted the injured to the hospital but this fact was not stated by the appellants when examined under Section 313 Cr.P.C. Prescription slips (Ex.D1 and Ex.D2) are blank. DW3 and DW4 have Crl.Appeal No. 1341-SB of 2001 9 deposed being the neighbours of the appellants. House of the appellants was at a distance of 70 yards from the house of the complainant party. So, presence of complainant and his sister Simrati at the time of occurrence was natural. No reason to disbelieve PW1 Gurdev Singh, complainant, PW3 Simrati and PW4 Harbans Lal. Admittedly, Bobby @ Renu Bala (deceased) was married with Vijay Kumar 9 months earlier to the occurrence. According to the story, appellants used to misbehave and maltreat the deceased for want of dowry. Deceased was set on fire after causing injuries, whereas defence version of the appellants was that deceased was not keeping good health. She was under depression and committed suicide. Now the Court is to see whether prosecution story is correct one or defence version seems to be more probable. To convict the appellants under Section 304-B IPC, prosecution was required to show that death was within 7 years from the date of marriage, death was unnatural in the house of in-laws on account of harassment for want of dowry soon before the death. Section 304-B IPC is reproduced as under:- “304-B Dowry 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.” Crl.Appeal No. 1341-SB of 2001 10 Complainant and Simrati when appeared in Court, then stated that 9 months earlier to the occurrence, Bobby was married with Vijay Kumar. No suggestion to the witnesses that marriage was not 9 months earlier to the occurrence. One thing is clear that 9 months earlier to the occurrence, deceased was married with Vijay Kumar, appellant. According to PWs, house of complainant party was in Street No.1, whereas house of the appellants was in Street No.5. House of complainant party was at a distance of 70 yards from the house of the appellants. In the morning on 21.9.1997, complainant party heard noise in the house of appellants. On hearing noise, complainant and his sister had gone to the house of the appellants, then had seen appellants while committing the crime. After the incident, Bobby was shifted to the hospital, where she had succumbed to her burn injuries. Postmortem examination was conducted on 21.9.1997 at about 4.00 PM. Besides burn injuries, lacerated wound was also noticed by the doctor. Injuries were found to be ante mortem in nature. Death was due to shock and haemorrhage as a result of extensive burns. Injuries were sufficient to cause death in the ordinary course of nature. No suggestion to the doctor that death was not unnatural or homicidal. According to defence version, occurrence is an admitted fact. Only dispute is whether deceased committed suicide or she was set on fire after causing injuries. So, second ingredient to convict the appellants under Section 304-B IPC is also clear. Lastly, the prosecution was required to prove by leading cogent and convincing evidence as to whether harassment for want of dowry was soon before death and on account of harassment, deceased committed suicide or she was set on fire after causing injuries. Gurdev Singh, Crl.Appeal No. 1341-SB of 2001 11 complainant, is the maternal uncle of the deceased and his house is at a distance of about 70 yards from the house of the appellants. On hearing noise, he had gone to the spot, then noticed the appellants present there. At that time, Vijay Kumar was armed with kitchen knife. Swaran Singh and Gurbachan Kaur had caught hold the deceased when Vijay Kumar, armed with knife, gave blows to the deceased. After that, deceased was set on fire by Vijay Kumar by lighting a match stick. Simrati, mother of the deceased, has also supported the version of the complainant. Both have stated that marriage was performed as per their status. After marriage, appellants were not satisfied with the dowry articles and they started misbehaving and maltreating the deceased. At one time, Rs.5,000/- was given to the appellants but despite payment, appellants were not happy. Again, they started demanding Rs.50,000/- to instal a flat machine. Deceased used to inform the complainant party regarding demand of dowry by the appellants. Simrati was very poor and was not in a position to arrange Rs.50,000/-. On account of demand of dowry, appellants used to misbehave and maltreat the deceased. No doubt, before the present occurrence, there was no complaint to any authority regarding demand of dowry. There was no panchayat. But some time to settle the marriage, no panchayat is convened or complaint is given to any authority. According to defence version, deceased was not keeping good health. She was under depression and getting treatment from the doctors at Phagwara. Dr. Kuldip Singh appeared in defence and stated that as per record, on 4.9.1997 and 11.9.1997, Renu Bala was checked up. She was under his treatment. Prescription slips Ex.D1 and Ex.D2 were issued by him. Renu Bala was suffering from depression but statement of Dr. Kuldip Crl.Appeal No. 1341-SB of 2001 12 Singh is without any evidentiary value. Ex.D1 and Ex.D2 are the prescription slips issued by Dr. Kuldip Singh but both are blank. Learned defence counsel failed to point out as to what was the disease and which medicine was prescribed to the deceased. Ex.D1 and Ex.D2 simply show that name of patient is Renu, 20 years' old, from City Ludhiana. In Ex.D1, only word `DEP' was written, whereas in Ex.D2, word `depression' was written but prescription slips are blank as to what medicine was prescribed. Signatures of the patient not on the prescription slips or register. Against the name, father's name or husband's name not mentioned. Patient was not known to the doctor. In the absence of complete address, not safe to opine that prescription slips (Ex.D1 and Ex.D2) were issued to the deceased when she had visited Phagwara Kidney Stone Centre, Swaran Hospital, Phagwara. In case, deceased was not keeping good health and was under depression, then she should have been checkecd up by a Psychiatrist. Dr. Kuldip Singh in examination-in-chief has not stated a word that he was a qualified Psychiatrist and was serving at Phagwara Kidney Stone Centre, Swaran Hospital, Phagwara. As per prescription slips (Ex.D1 and Ex.D2) by Kidney Specialist not safe to opine that deceased was under depression. Second allegation of the appellants was that when deceased committed suicide by pouring kerosene, then Swaran Singh tried to extinguish the fire and had shifted the injured to the hospital but this fact is also not correct one. Occurrence is dated 21.9.1997, whereas as per DW2 Dr. R.K. Sharma, Swaran Singh was medico legally examined on 25.9.1997. Dr. R.K.Sharma did not state a word that injuries noticed on the person of Swaran Singh were 4/5 days old and possibility of injuries suffered in the incident dated 21.9.1997 cannot be ruled out. After the injured was shifted Crl.Appeal No. 1341-SB of 2001 13 to the hospital, then intimation was sent to the concerned police station. Ex.PH is the ruqa sent by Civil Hospital, Ludhiana, regarding admission of Bobby @ Renu Bala and to make arrangement to record dying declaration but ruqa no where shows that Renu Bala was brought to the hospital by Swaran Singh. Ruqa rather shows that Renu Bala was brought to the hospital by Gian Kaur in serious condition. No suggestion was given to Gurdev Singh, complainant, Simrati or to any other witness that Renu Bala was shifted to the hospital by Swaran Singh. Swaran Singh when examined under Section 313 Cr.p.C., then did not state a word that he had shifted Renu Bala to Civil Hospital, Ludhiana. He simply stated that Renu Bala was suffering from depression and she committed suicide by pouring kerosene due to depression. Not a word stated by Swaran Singh that he had tried to extinguish the fire and had shifted Renu Bala to the hospital. As discussed earlier, no suggestion to any witness that Swaran Singh also received injuries in the same occurrence and he had shifted Renu Bala to the hospital. So, story regarding an effort to extinguish the fire and shifting the injured to the hospital is an after thought, particularly when Dr. R.K.Sharma did not state a word that injuries noticed on the person of Swaran Singh were possible in the incident dated 21.9.1997. According to the appellants, Vijay Kumar was not present at the time of occurrence, but submission of learned defence counsel for the appellants is without any force because Vijay Kumar when examined under Section 313 Cr.P.C., then did not state a word that he was not present at the time of occurrence and if he was not present at the spot, then no explanation where he was at that time. No suggestion to the witnesses that Vijay Kumar was not present at the time of occurrence. Suggestion to the witnesses was Crl.Appeal No. 1341-SB of 2001 14 that Swaran Singh, Nachhattar Singh and Shingara Singh had extinguished the fire. Nachhattar Singh and Shingara Singh appeared in defence as DW3 and DW4, respectively, but they did not state a word that they tried to extinguish the fire. In case, they along with Swaran Singh had tried to extinguish the fire, then why they had not suffered any injury and only Swaran Singh received injuries. They rather stated that Swaran Singh had tried to extinguish the fire and had shifted Renu Bala to the hospital. Nachhattar Singh and Shingara Singh are the neighbours of the appellants. They were very much interested in the acquittal of the appellants. In case, deceased had committed suicide by pouring kerosene, then they should have sent complaints in writing to different authorities. Statements of Nachhattar Singh or Shingara Singh were not recorded by the police. So, it is very easy to produce 2/3 neighbours to state that deceased had committed suicide because she was under depression. So, story regarding shifting the injured to the hospital or an effort to extinguish the fire is an after thought. As discussed earlier, marriage was 9 months earlier to the occurrence and there was no issue from this wedlock. No evidence on the file that deceased was under depression and was getting treatment from any doctor. If the deceased was hale and hearty and was not under depression, then there was no idea to commit suicide. In case, deceased had committed suicide, then no explanation how injuries were noticed by the doctor. According to story, Vijay Kumar was armed with knife and gave blows to the deceased. Injuries were noticed by the doctor. After causing injuries, deceased was set on fire. Death was due to burn injuries. After marriage, appellants used to misbehave and maltreat the deceased for want of dowry. At one time, Rs.5,000/- was