CRIMINAL APPEAL NO. 783-DB OF 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: November 2, 2011. Parties Name Surjit Kaur and others ...APPELLANTS. VERSUS State of Punjab ...RESPONDENT CORAM: Hon'ble Mr. Justice Jasbir Singh Hon'ble Mrs. Justice Sabina PRESENT: Mrs. J.J.Kaur, Advocate, for the appellants. Mr. K.D.S.Sidhu, Addl. A.G., Punjab Jasbir Singh, J. JUDGMENT Appellants were charge-sheeted for committing murder of Jaspreet Kaur wife of appellant No. 2, namely, Davinder Singh. Appellant No. 1 is mother-in-law and appellant No. 3 is father-in-law of the deceased. Marriage between Jaspreet Kaur and appellant No. 2 was solemnised on October 14, 2001. Out of the wed-lock, a girl child was born on October 1, 2002. Jaspreet Kaur died on August 3, 2004. CRIMINAL APPEAL NO. 783-DB OF 2005 -2- Process of law was set in motion on a statement made by PW3 Kirpal Singh (Ex. PE), on the basis of which an FIR Ex. PE/2 was registered against the appellants on August 4, 2004, in Police Station Adampur, district Jalandhar, for commission of the above offences. Case of the prosecution as noted by the trial Judge reads thus: “In brief, the facts of the prosecution case, are that Jaspreet Kaur, since deceased, daughter of Kirpal Singh PW3, was married with Davinder Singh accused on 14.10.2001 and sufficient dowry was given according to the status and one daughter was born out of the said wedlock. Davinder Singh accused was residing and working in Saudi Arabia, but had come to India on leave. Soon after the marriage, the accused started harassing and taunting Jaspreet Kaur for bringing insufficient dowry. Jaspreet Kaur told all this when she came to her parental house. Then Kirpal Singh PW3 alongwith his wife Rajinder Kaur, Ajit Singh Sarpanch and his cousin Gurdev Singh took Jaspreet Kaur to the house of the accused, the accused told them that Jatinder Singh, son of Kirpal Singh PW3, who was in America should arrange the immigration of Davinder Singh in that country, but when Kirpal Singh PW3 enquired from his son, he showed his inability, as according to him, immigration was not possible. On this accused threatened that they had to face the consequences and they started giving beating to Jaspreet Kur, since deceased. In November, 2002, a sum of Rs. 40,000/- was deposited in the name of Jaspreet Kaur CRIMINAL APPEAL NO. 783-DB OF 2005 -3- as fixed deposit, even then the accused were not satisfied saying that the F.D.R. had been prepared in the name of Jaspreet Kaur and nothing was given to them (accused). On 3.8.2004, at about 7 p.m. Kirpal Singh PW3 received a telephonic call from his son Hardeep Singh that Jaspreet Kaur had informed him that she had been administered posion by the accused. On this, Kirpal Singh PW3 along with his other relatives and family members reached Civil Hospital, Jalandhar and found his daughter Jaspreet Kaur writhing with pain and she told him that she had been administered poison by the accused and she breathed her last.” Statement of Kirpal Singh (PW3) was recorded by Inspector Bhupinder Singh (PW9), who made an endorsement Ex. PE/1 on the same and sent it to the Police Station, on the basis of which formal FIR was recorded. The Investigating Officer prepared the inquest report Ex. PK and sent the dead body for post-mortem examination, which was conducted by Dr. Harpreet Mann on August 4, 2004, at 3.45 PM. On getting report from the Chemical Examiner Ex. PM, this witness opined that the death has been caused due to aluminum phosphide poison, which was sufficient to cause death in the ordinary course. In the meantime, appellant No. 2 was arrested. The Investigating Officer went to the spot and as per disclosure statement made by appellant No. 2, four tablets of sulphas concealed in a store of the house were got recovered by the accused. The tablets were taken into possession CRIMINAL APPEAL NO. 783-DB OF 2005 -4- against a recovery memo. Rough site plan Ex. PL of the place of recovery was also prepared. On completion of investigation, final report was put in Court. Copies of the documents were supplied to the accused as per provisions of Section 207 Cr.P.C. The appellants were charge-sheeted, to which they pleaded not guilty and claimed trial. The prosecution, to prove its case, produced ten witnesses and also brought on record documentary evidence. On conclusion of prosecution evidence, incriminating material existing on record was put to the accused. In their statements recorded under Section 313 Cr.P.C., they denied the allegations, claimed innocence and false implication. Appellant No. 1 stated that she does not know the cause of death of Jaspreet Kaur and she did not give any poison to her. Appellant No. 3 stated that he was on duty and came back in the evening on August 3, 2004 and then came to know about death of Jaspreet Kaur. Appellant No. 2 took up the following stand in answer to the last question when his statement was recorded under Section 313 Cr.P.C: “My mother was ill. We used to go out for evening walk and when I asked Jaspreet Kaur for accompanying me, I found her lying. Her Blood Pressure was low. I immediately called a Doctor and got her first aid and then shifted her to the hospital. I have been in Saudi Arabia for the last eight years. On the way, she told me that she had been asking me to take her along me to Saudi Arabia. I informed my in laws on my mobile phone and contacted Sonu who is daughter of my wife's uncle. She, however, told me that they had started for my Village CRIMINAL APPEAL NO. 783-DB OF 2005 -5- Daroli. I then started for village Daroli to bring her to the hospital and also to bring money from my house and my brother in law Hardip Singh and his mother were noticed by me coming to my house. I took them to the hospital. When the Doctor tried to inform the police station, Hardip Singh and his mother objected to the same that police should not be informed.Jaspreet Kaur was even at that time saying that she had been asking me to take her along me to Saudi Arabia. I received a call from my father in law on my mobile phone and Hardip Singh also rang up his sister at Delhi on my phone. However, they insisted on shifting Jaspreet Kaur from Kalra Hospital to Tandon Hospital, Adampur and from there to Oxford Hospital, Jalandhar. She ultimately died on 4.8.2005. I am innocent.” The appellants – accused also led evidence in defence to prove that the deceased was being maintained properly by them. On concluison of evidence, the trial Court convicted and sentenced the appellants – accused for commission of offences under Section 302 IPC and in the alternative, under Section 304-B IPC. They were also convicted for commission of an offence under Section 498-A IPC and the maximum sentence of imprisonment for life with fine, with a default clause was awarded to them. Hence this appeal. Counsel for the appellants has vehemently contended that there is nothing on record to show that any demand for dowry was ever made by CRIMINAL APPEAL NO. 783-DB OF 2005 -6- the appellants soon before death. It was further argued that the deceased consumed poison when appellant No. 2 told her that it was not possible for him to take her to Saudi Arabia where he was working. It was further argued that the prosecution has failed to prove that any poison was administered to the deceased by the appellants. After marriage, most of the time, the deceased had lived with her parents and she came to her matrimonial house only when appellant No. 2 came to India during vacation. She prayed that the appeal be allowed and conviction and sentence awarded to the appellants be set aside. Prayer made has vehemently been opposed by the State counsel. He, by making reference to the statements made by PW3 , PW4, PW8 and PW9 argued that the prosecution has proved its case without shadow of doubt. It has come on record that after marriage, on account of getting less dowry, the appellants were not happy with the deceased. She was sent to her parental house many a times to fulfill their demand of dowry. It was further stated that before her death, Jaspreet Kaur informed her father that she was forcibly administered poison by all the three accused. He prayed that the appeal, having no substance, be dismissed. In the present case, marriage between appellant No. 2 and the deceased was solemnised only on July 14, 2001. On October 1, 2002, Jaspreet Kaur gave birth to a daugher. Death in this case has occurred on August 3, 2004, i.e., within 7 years of the date of solemnization of marriage. In his statement Ex. PE, it is categorically stated by Kirpal Singh father of the deceased that after marriage, all the three accused started harassing the deceased on account of bringing less dowry, which they felt was not as per CRIMINAL APPEAL NO. 783-DB OF 2005 -7- their status. It is further stated that the deceased was sent to her in-laws' house to rehabilitate her. He along with Sarpanch of the village and one Gurdev Singh went to appellants' house with a request that the deceased be not harassed. At that time, he was told that his daughter will be rehabilitated only when his son arranged permanent immigration of appellant No. 2 to America. It was told to the appellants that on account of strict rules, it was not possible. It is further stated that to satisfy hunger of the appellants, an F.D. in the sum of ` 40,000/- was prepared in the name of the deceased and handed over to the appellants. In his statement it is further mentioned that regarding forcible administration of poison to his daughter, he came to know from his son Hardeep Singh (PW4) and then rushed to the Hospital. Her daughter (deceased) told him that she had been forcibly given sulphas by her father-in-law, mother-in-law and husband as their demand for more dowry was not fulfilled. No doubt, in the witness-box, PW3 Kirpal Singh has failed to give vivid account of the harassment to his daughter but at the same time, the detail of the maltreatment has been given by PW4 Hardeep Singh (brother of the deceased), who has narrated the facts regarding giving harassment to the deceased by her in-laws and the husband and further that he had received a telephonic call from her sister stating that she was administered poison forcibly by the appellants. Despite lengthy cross-examination, the defence failed to shatter testimony of this witness. Furthermore, it has come on record that appellant No. 2 was working in Saudi Arabia. He had come to India at the time of his marriage and then went back. Most of the time, the deceased had stayed with appellants No. 1 and 3. It is amply clear from the record that their CRIMINAL APPEAL NO. 783-DB OF 2005 -8- behaviour towards her was not good. At the time of death, appellant No. 2 was on vacation to India and was living in village Daroli with the deceased. There is no history of depression so far as the deceased is concerned. It was also not so said by the appellants. It is only stated that the deceased was insisting appellant No. 2 to take her to Saudi Arabia with him. When refused, she consumed poison. This plea is not believable. It is for the appellants to disclose as to how death had occurred, which they have miserably failed. The deceased was having a child. There is no reason as to why she will commit suicide as has been projected by the appellants. Under the circumstances, the provisions of Section 106 of the Evidence Act, 1872, can be invoked to fasten liability on the appellant – accused. Death has occurred in the matrimonial house. It is for the appellants to explain the circumstances, which led to death of the deceased. A Division Bench of this Court in Amarjit Singh and others v. State of Punjab, 1989(1) R.C.R. 18, has opined that in a family house, if death has occurred, it was for other members to explain the circumstances under which incident had taken place. Their lordships of the Supreme Court in Raj Kumar Prasad Tamarkar v. State of Bihar and another, (2007)10 SCC 433, by taking note of a fact that the death had occurred in a bedroom, where husband and wife were alone, when husband failed to give any explanation for the same, it was held a circumstance against him. To the same effect is the ratio of the judgment in Duyaneshwar v. State of Maharashtra, (2007) 10 SCC 445, in which their Lordships of the Hon'ble Supreme Court observed as under: “10. It has not been disputed before us that the deceased was CRIMINAL APPEAL NO. 783-DB OF 2005 -9- murdered in her matrimonial home. It is not the case of the appellant that the offence was committed by somebody else. It is also not his case that there was a possibility of an outsider to commit the said offence. One of the circumstances which is relevant is that when the couple was last seen in a premises to which an outsider may not have any access, it is for the husband to explain the ground foir unnatural death of his wife. In Raj Kumar Prasad Tamarkkar v. State of Bihar, this Court held:(SCC p. 440, paras 22-23). “22. The conspectus of the events which had been noticed by the learned Sessions Judge as also by the High Court categorically goes to show that at the time when the occurrence took place, the deceased and the respondent only were in the bedroom and the terrace connecting the same. There was no other person. The cause of death of the deceased Usha Devi i.e. By a gunshot injury is not disputed. The fact that the terrace and the bedroom are adjoining each other is not in dispute. 23. The autopsy report shows that 'a blackening and charring' existed so far as Injury (i) is concerned. The blackening and charring keeping in view the nature of the firearm, which is said to have been used clearly go to show that a shot was fired from a short distance. Blackening or charring is possible when a shot is fired from a distance of about 2 feet to 3 feet. It, therefore, cannot be a case where the death might have been caused by somebody by firing a shot at the deceased from a CRIMINAL APPEAL NO. 783-DB OF 2005 -10- distance of more than 6 feet. The place of injury is also important. The lacerated wound was found over glabella (middle of forehead). It goes a long way to show that the same must have been done by a person who wanted to kill the deceased from a short distance. There was, thus, a remote possibility of causation of such type of injury by any other person, who was not on the terrace. Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the couple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same.” A Division Bench of this Court in Amarjit Singh's case (supra), by taking note of the provisions of Section 106 of the Evidence Act, opined that where husband and wife were last seen together in their house in each other's company, thereafter wife found dead, it was for the husband to state the circumstances leading to death of his wife. In the present case, situation is the same. The appellants have miserably failed to state as to what could be the possible reason for the deceased to commit suicide or what were the circumstances, which led her to death. There is no explanation furnished by the appellants – accused qua death of the deceased. Furthermore, the prosecution has brought on record that before her death, the deceased made a telephonic call to her brother PW4 Hardeep Singh and told her that she had been forcibly given poison by CRIMINAL APPEAL NO. 783-DB OF 2005 -11- the appellants. Hardeep Singh's coming to the place of occurrence after receipt of that call is virtually proved on record. There exists nothing to the contrary. Four tablets of sulphas were also got recovered by appellant No. 2 from a store in the house. As per Chemical Examiner's report, death has occurred on account of poisoning. There is no evidence to say that Jaspreet Kaur was not in a position to talk to her brother on the telephone. PW4 Hardeep Singh has also stated that when he reached Civil Hospital at Jalandhar, she saw his sister withering in pain. He was also told by her that the poison was administered to her by the appellants – accused. In his statement under Section 313 Cr.P.C., appellant No. 2 has admitted that the deceased was in a position to talk to him. The deceased was last seen with the appellants – accused. As such it is his responsibility to show as to how she had died. Appellants No. 1 and 3 are the elders in the family. It was their duty to treat the deceased like their daughter and see that she was not put to any inconvenience. They have failed to do their duty. The motive to commit crime is also established on record. PW3 and PW4 have stated that the deceased was being harassed for bringing less dowry. Though they have failed to give any specific instance of demand of dowry immediately before her death, however, taking note of evidence on record, it can be safely said that bringing of less dowry was the real cause of harassment being meted out to the deceased. In view of facts and circumstances of the case, no case is made out to interfere and accordingly conviction and sentence of the appellants under Section 302 IPC is upheld. In view of above, there is no necessity to pass any order regarding conviction and sentence of the appellants with CRIMINAL APPEAL NO. 783-DB OF 2005 -12- regard to other minor offences. ( Jasbir Singh ) Judge ( Sabina) Judge November 2, 2011 DKC