IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 643-SB of 1997 Date of decision: 22nd May, 2008 Inderjit Singh and others … Appellants Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Jasjit Singh Bedi, Advocate for the appellants. Mr. Mehardeep Singh, Assistant Advocate General Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been preferred by Inderjit Singh son of Kashmir Singh, Harpreet Kaur daughter of Kashmir Singh and Jaswant Kaur wife of Kashmir Singh. They were tried in case FIR No. 85 dated 13.07.1993 registered at Police Station Division No.2, Ludhiana under Section 498(a) and 304(b) IPC. The learned Additional Sessions Judge, Ludhiana vide his judgment dated 01.08.1997 convicted them under Section 304(b) IPC and on the same day sentenced Inderjit Singh to undergo eight years rigorous imprisonment, and Harpreet Kaur and Jaswant Kaur to undergo seven years rigorous imprisonment. No sentence of fine was imposed. FIR in the present case was recorded on the statement of Avtar Singh, aged 59 years. He stated that he is a resident of Bathinda and retired as Inspector, Municipal Committee, Bathinda. It has been further stated that he was blessed with two daughters and three sons. Eldest Criminal Appeal No. 643-SB of 1997 daughter, Gurcharan Kaur alias Neeru aged about 26 years was married on 28th March, 1993 with Inderjit Singh son of Kashmir Singh, resident of Ludhiana. He had given the dowry according to his capacity. It is further stated that after some time of marriage in-laws of his daughter started harassing her and were demanding more dowry. It has been further stated that she was compelled by her husband Inderjit Singh, mother-in-law Jaswant Kaur and sister-in-law Harpreet Kaur to bring a cooler and VCR. This fact was disclosed to the complainant when she was left at his house by his son-in-law. It has been further stated that she told his wife and his son that she was being given beatings by her in-laws and they demanded more dowry and then complainant promised to his daughter that the day they will go to leave her in her matrimonial home, they will give cooler to her in-laws and at the time of Rakhi they will give VCR to her in-laws. It has been further stated that after one week the daughter returned to the matrimonial house accompanied by the complainant and at that time, complainant handed over Rs.1850/- to the father-in-law of his daughter, i.e. Kashmir Singh. He told father-in-law of his daughter to purchase a cooler. It has been further stated that on 13th July, 1993, at about 2.00 p.m. a telephonic call was received from Ludhiana in which it was disclosed that Gurcharan Kaur alias Neeru has died due to burns. Then the complainant along with his wife Dalip Kaur and sons Amarjit Singh and Rajinder Singh reached at the house of the accused at Field Ganj, Ludhiana, where the burnt dead body of his daughter was lying on the bed. After leaving his wife and two sons near the dead body, he was going to the Police Station to lodge a report when the police met him and the statement was made. Statement has been exhibited as Ex.PG, on the basis of which, FIR (Ex.PG/2) was recorded. The matter was investigated. After investigation, report under Section 173 IPC was submitted. The appellants were charged by the Court 2 Criminal Appeal No. 643-SB of 1997 of Additional Sessions Judge, Ludhiana for offences under Section 498(a) IPC and Section 304(b) IPC. They pleaded not guilty and claimed trial. Prosecution examined PW-1, Dr.G.P.Mangla, who conducted autopsy on the dead body of Gurcharan Kaur alias Neeru, aged 26 years. Autopsy was conducted by the board of Doctors and PW-1, Dr.G.P.Mangla was a member of the board. His observations are as follows: “The length of dead body was 5’-5”, of a young female, which was moderately built moderately nourished, wearing burnt pieces of Bra and burnt partly underwear and partially milted plastic bangles on both the forearms and steel Kara on the right hand and pieces of burnt clothes and a piece of Chuni lying over the mouth, and the tongue was tied between the lips. Rigor mortis was present all over the dead body. The dead body was wearing ornaments as, Four gold Churies, two silver Pajebs, one chain gold, matter Mala of gold, three rings of gold and pair of ear rings. I found the following injuries on the dead body: Superficial to deep burns were present all over the dead body, except part of the left side of the back (Lower part of the region, lateral side of both the forearms and sole of the feet). The scalp hairs were partially burnt in the front parietal region. Axillary and pubic hair were signed. Smell of kerosene oil was present. Pleurae, Larynx and trachea, both the lungs, were congested. Liver, Spleen and kidney were pale. The uterus was enlarged, soft, congested and in size was bout 14 week size containing, gestational sack with male foetus. Uterus was removed and sent to the Prof. & Head, Department of Pathology, Medical College, Patiala for gestational period. All the other organs were healthy. The cause of death in our opinion was due to shock as a result of extensive burns, which were sufficient to cause death in ordinary course of nature and all the burns were ante-mortem in nature.” In the cross-examination Dr.G.P.Mangla admitted that in the case of first pregnancy, ladies become peevish and irritant. PW-2 3 Criminal Appeal No. 643-SB of 1997 Harmander Singh is a draftsman. He prepared the scaled site plan. Avtar Singh (complainant) appeared as PW-3. He reiterated the version given by him in the FIR. He proved that marriage had taken place on 28th March, 1993 and within four months of her marriage, Gurcharan Kaur alias Neeru had died. In cross-examination, various attempts were made to demolish the testimony of the witnesses. Avtar Singh PW-3 admitted in cross examination that Ex.PG, recovery memo was prepared and he had appended his signatures. He further admitted that Ex.PG is regarding recovery of letter written by Neeru, his daughter. It has been further stated by him that this letter of Neeru was affixed with Bindies on the dressing table and letter was written in Punjabi. Police Inspector, Sarup Singh prepared the recovery memo after taking the letter in possession. Relevant portion of cross examination reads as under: “I am Matriculate and know Punjabi. Ex.PG recovery memo. Bears my signatures, which purports to the recovery of a letter written by Neeru, my daughter. This letter of Neeru was affixed with Bindies on the dressing table. This letter was written in Punjabi. The Police Inspector – S.Saroop Singh, prepared the recovery memo. after taking that letter in to possession.” He also stated that it is correct that his son-in-law used to leave the house in the morning and used to come back home at about 7.30 p.m. after closing the shop. He used to leave the house for shop at about 9.00 a.m. He also admitted that VCR cassette was prepared regarding the ceremony of marriage of his daughter Neeru with Inderjit Singh. PW-4 Rajinder Singh is son of the complainant and brother of Gurcharan Kaur alias Neeru, deceased. PW-5, Constable Gurdev Singh has recorded the formal FIR. PW-6 Inspector Sarup Singh is the investigating officer. He has given various details regarding the recovery 4 Criminal Appeal No. 643-SB of 1997 effected from the spot. He has also given his visual observation regarding the scene of occurrence. Investigating officer, during cross-examination, admitted that the contents of the letter mark ‘A’ were incorporated in recovery memo (Ex.PGG). He has stated that he had read the contents of letter mark ‘A’ to Head Constable Baljinder Singh, who had prepared memo (Ex.PGG) in the presence of Avtar Singh and Nishan Singh. He further stated that Head Constable Baljinder Singh kept on writing Ex.PG as per his dictation. He further admitted that he did not ask any person about the specimen handwriting of the deceased during the investigation. He also denied the factum of receipt of the report of the Forensic Laboratory in this case. He admitted in cross-examination as under: “It is correct to suggest that I did not try to get the specimen handwriting of the deceased because it was confirmed during my investigation that mark ‘A’ had been written by Neeru deceased and that the same had not been contradicted by her father and relations.” PW-7, ASI Baljinder Singh has tendered his affidavit (Ex.PQ) to prove link evidence. Thereafter, prosecution evidence has been closed. All incriminating evidence was put to the accused under Section 313 Cr.P.C. They denied the allegations and pleaded that they are innocent. In the defence, DW-1, Harbans Singh SI of Police Station Division No.6, Ludhiana was examined. He stated that he partly investigated the case. He further stated that he had sent Ex.DX and mark ‘A’ for comparison of signatures to Central Forensic Laboratory, Chandigarh. Report received was Ex.DZ. He further admitted that both Jaswant Kaur and Harpreet Kaur were kept in column No.2 and were found innocent during the investigation. Ex.DX is purported to be handwriting of the deceased. In Ex.DX, various colours have been written in Punjabi in the handwriting of the deceased. Ex.DY is recovery memo, vide which Ex.DX was taken into possession. SI 5 Criminal Appeal No. 643-SB of 1997 Harbans Singh has prepared the memo Ex.DY, according to which handwriting of Gurcharan Kaur alias Neeru was handed over by Mrs.Prem Lata, counselor to the investigating officer on the ground that deceased had handed over a list of colors to her for purchase from the market. Ex.DZ is the report of the handwriting expert, which states as under: “1). The red enclosed questioned writings stamped and marked Q1 when compared with the standard writings similarly stamped and marked A1 and A2 show similarities. Suitable and sufficient admitted writings of the person concerned in “Gurmukhi” already existing on some documents near about the period of questioned writings containing similar letters, words and combinations as are available in the questioned writings marked Q1 are required for thorough scientific examination and definite opinion. I caused it examined.“ Before the arguments of the counsel for the appellant are appreciated, it will be apposite here to reproduce the translation of suicide note mark ‘A’: “Writer: Neeru. I am dying my own death. If after marriage one has to remain confined to the house, then I am fed up with this kind of life. Beside being not well, if I have to work like a domestic maid, then I cannot do this work. In case domestic maid cannot come to this house then I cannot do the work for whole day. In the morning, leaving at 8.00, coming in the night, nowhere to roam, nor to visit any body, I am taking my own life. (note on side) Three video cassettes of Bathinda people are lying in the almirah, same be returned. Sd/- Neeru SHO, PS Div.2.” Mr.Jasjit Singh Bedi appearing for the appellant has stated that on the very day when the occurrence took place, immediately 6 Criminal Appeal No. 643-SB of 1997 thereafter, suicide note was recovered. Complainant has admitted that the suicide note was on the dressing table, affixed with the bindis, (which are used with adhesive on head by women). He has further stated that a memo was prepared by the investigating officer. It has been further contended that investigating officer has admitted that when suicide note mark ‘A’ was taken into possession, no objection was raised by the relations or by the complainant that suicide note was in the handwriting of the deceased. It has been stated that the complainant has admitted that suicide note was taken into possession. He has further admitted that the prosecution has sent this suicide note to the Forensic Laboratory along with admitted handwriting. The same was withheld by the prosecution and accused has to prove the same by leading defence evidence. He has further contended that the death has occurred within four months of the marriage as deceased could not adjust to her surroundings, especially when the deceased was carrying 14 week fetus. PW-1, Dr.G.P.Mangla in cross-examination has admitted that during first pregnancy, ladies tend to become peevish and irritant. Therefore, he has contended before me that the deceased has committed suicide and she herself was responsible for her suicide. There is no allegation of demand of dowry in suicide note, which otherwise is made out from the oral bald allegations leveled by the complainant. Therefore, no offence under Section 304(b) IPC is made out. Mr. Mehardeep Singh appearing for the State has submitted that in the present case, deceased has died within four months of her marriage. He has placed reliance on Section 113-B of the Indian Evidence Act to contend that in case of death of a woman within seven years, if it is shown that soon before her death any woman has been subjected to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. 7 Criminal Appeal No. 643-SB of 1997 Therefore it has been stated that on the allegations, which surface from the testimony of PW-3 Avtar Singh, this Court should presume accused to be guilty I have given my thoughtful consideration to the rival submissions made by the counsel for the parties. Deceased had died within four months of her marriage. She was pregnant with a 14 weeks fetus. Regarding the allegation of demand of dowry, we have a bald oral statements of PW-3 (Avtar Singh) and PW-4 (Rajinder Singh), father and brother of the deceased respectively. After the marriage, no such complaint was made to any body, neither any writing to this effect has been prepared. What puts the Court on caution is that a suicide note was recovered and was later disowned by the complainant and by the police. At the first instance, no protest was made nor it was brought to the notice of any body that the suicide note mark ‘A’ is not in the hand writing of the deceased. Furthermore, the investigating officer, who has taken the suicide note, had made an attempt to suppress the same from the Court. It is in the cross examination that the suicide note mark ‘A’ was put to the witnesses. Witness has neither denied existence of such a note nor has he stated that the same is not in the handwriting of his daughter Gurcharan Kaur. The defence proved suicide note by examining DW-1 Harbans Singh SI. Therefore, the conduct of the prosecution and the complainant to suppress this note is such that this Court will have to rely upon the suicide note, mark ‘A’. Once this Court comes to the conclusion that mark ‘A’ was in the handwriting of the deceased, Gurcharan Kaur and was kept away from this Court, a question will arise that if the contents of suicide note mark ‘A’ are accepted, then what offence is made out. Suicide note look natural and probable. Prosecution had made all attempts to withhold the same from Court. It is not a case where suicide note is being denied, but same was sought to be suppressed. 8 Criminal Appeal No. 643-SB of 1997 I find that the allegations of demand of dowry are lacking in the suicide note. Demand of dowry is essential ingredient of offence under Section 304-B IPC. Section 113.A of Indian Evidence Act reads as under: “[113A. Presumption as to abetment of suicide by a married woman.-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation – For the purposes of this section, "cruelty" shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]” If within seven years a woman has died in the house and has committed suicide, then offence under section 306 IPC is made out. The very fact that I have ruled out demand of dowry, ingredients of offence under Section 304(b) are not complete. Suicide note make out three grievances of the deceased. Firstly, she being a pregnant, is made to work for the whole day. Secondly, domestic maid is not allowed to enter in the house and thirdly, she is kept confined to the house and is not taken out to visit anybody or for excursion. It is bounden duty of the husband to provide congenial atmosphere to newly wedded wife, especially when she is pregnant and the fact that she is made to work and not to rest. This can be taken as harassment and cruelty towards a young wife, who after leaving her house, has to make adjustments to settle in matrimonial home. Therefore according to my mind, offence under Section 306 IPC is made out in the present case. Another question raised is whether all the three accused are responsible. Since I have held that it is the bounden duty of the husband to 9 Criminal Appeal No. 643-SB of 1997 provide congenial atmosphere to newly wedded wife and there is no specific allegation that any harassment was meted out by mother-in-law or sister-in-law, therefore they are entitled to benefit of doubt. In the suicide note also, general and omnibus allegations against these two ladies are lacking. Therefore benefit of doubt can be extended to Jaswant Kaur and Harpreet Kaur. Accordingly, appeal qua them is accepted and they are acquitted of the offences. However, since I have converted the offence from Section 304(b) IPC to Section 306 IPC and keeping in view the fact that occurrence has taken place in 1993 and that the accused Inderjit Singh has suffered a protracted trial of 15 years, ends of justice will be fully met in case he is awarded four years rigorous imprisonment under Section 306 IPC along with fine of Rs,25,000/-. In default of payment of fine, he shall undergo one year rigorous imprisonment. With these modifications in conviction and sentence qua Inderjit Singh, present appeal is disposed off, whereas, Harpreet Kaur and Jaswant Kaur are acquitted. [KANWALJIT SINGH AHLUWALIA] JUDGE May 22, 2008 rps 10