CRA No.69-SB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.69-SB of 2002 Date of Decision: July 23, 2010 Parminder Singh .......Appellant Versus The State of Haryana .......Respondent CORAM:- HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr. K S Sidhu, Sr. Advocate, with Mr. Gurtej Singh Benipal, for the appellant. Mr. Kshitij Sharma, AAG, Haryana. **** JITENDRA CHAUHAN, J. 1. The present criminal appeal has been preferred by the appellant, namely, Parminder Singh, challenging the judgment dated 3.10.2001 and order dated 5.10.2001 convicting the accused (herein appellant) for committing offence under Section 304-B of the IPC and sentencing him to undergo rigorous imprisonment for a period of 9 years and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months. 2. The prosecution story, in brief, is that Gurpreet Kaur (deceased) daughter of the complainant, Nazar Singh, was married to the accused- appellant-Parminder Singh on 14.11.1999 as per the Sikh rites. Dowry as per capacity was given in the marriage. After a few days of the marriage, the appellant along with his father-Gurbachan Singh and his mother-Pritam Kaur, started torturing the deceased on account of bringing inadequate CRA No.69-SB of 2002 -2- dowry and further demand of dowry was raised. The deceased informed her father, Nazar Singh, who in turn consoled her and persuaded her to co-operate. Whenever the deceased used to visit her parental house, she used to tell about the cruelty and torture at the hands of the accused for bringing inadequate dowry. 3. In the month of June '2000, the deceased informed the complainant on phone that her husband (appellant) and her in-laws were demanding Rs.15,000/- as her husband wanted to go abroad. She also informed that the failure to arrange the money would result in further torture at the hands of the accused. To keep the accused happy, the complainant paid the said amount in three installments although he was not in a position to do so. However, the things did not improve and the accused continued to torture the deceased. On 18.8.2000, Harpreet Kaur, the elder sister of the deceased was operated upon and her newly born daughter died but the deceased was not permitted by the accused to visit her parental home. 4. About a week before the occurrence, the complainant-Nazar Singh received a telephone call from, the deceased, informing him about the torture by her husband (appellant) and apprehended that she would be done to death. 5. On 18.9.2000, the deceased died due to poisoning. The complaint was lodged by Nazar Singh on the same day wherein he alleged that the accused had administered some poisonous substance to the deceased or had compelled her to consume poison. It was further alleged that she was maltreated and harassed which resulted in her death. 6. FIR (Ex.PA/2) was registered and post mortem examination of the deceased was got conducted. The contents of the post-mortem report CRA No.69-SB of 2002 -3- (Ex.PF) read as under:- “Stomach content about 100 cc dark colour, fluid with garlic like smell and patchi haemorrhagic spots were present at places and sent for chemical analysis. Small intestine content gases and small amount of liquid material at places. A piece sent for chemical analysis. Large intestine-content gases and faecal material at places. Mucous membrane was congested. A piece sent for chemical analysis. Liver-Liver was congested. A portion was sent for chemical analysis. Spleen was congested and sent for chemical examination. Kidneys were also congested. Urinary bladder was found empty” At the time of post-mortem examination, the cause of death was kept pending to await report from the Forensic Science Laboratory. On the basis of this report (Ex.PE) from the said Laboratory, the Medical Officer gave his verdict that “cause of death in this case was shock due to aluminium Phosphide piosoning”. 7. After further investigations, the accused appellant and his father were arrested on 18.3.2000 whereas his mother was arrested on 19.3.2000 and statements of the witnesses were recorded. The accused were charge- sheeted under Section 304-B, IPC to which the accused pleaded not guilty and claimed trial. 8. In order to substantiate the charges against the accused, the prosecution examined as many as eleven witnesses. Nazar Singh, PW8, has proved the statement (Ex.PA). He has narrated the chain of events right from the marriage of the deceased with the accused-appellant, dowry demands by the accused, payment of Rs.15,000/- CRA No.69-SB of 2002 -4- in installments and the continued harassment, torture and cruelty caused to the deceased leading to her death. Smt. Surinder, wife of Nazar Singh, PW9, has given almost the same sequence of chain of events resulting in to death of the deceased. Dr. S P Mandal, Senior Resident, Department of Forensic Medicines, PGI Chandigarh, PW7, has proved the Post Mortem Examination report (Ex.PF) conducted on the body of the deceased wherein it has been reported that the cause of death was due to shock on account of Aluminium Phosphide poisoning. Prem Chand, Naib Tehsildar, PW1, proved that the statement of PW8-Nazar Singh (Ex.PA) was recorded by SI Babu Ram in his presence. C. Rishi Pal, Draftsman, PW10, proved a scaled site plan (Ex.PJ) prepared by him on 13.10.1999 after visiting the spot on 19.9.2000 with Nazar Singh and Dilbagh Singh. S.I. Babu Ram, PW11, the Investigating Officer, deposed that on receiving a telephonic message from Police Post, PGI, Chandigarh about the admission of the deceased due to consumption of some poisonous substance which subsequently resulted in her death. He inquired about the age, date of marriage and other related particulars of the deceased. He contacted SDM Kalka on telephone and gave him details who then deputed Prem Chand, Naib Tehsildar for conducting inquest proceedings. Application (Ex.PK) was moved by him before SDM, Kalka. He then went to PGI, Chandigarh. He has proved recording of statement (Ex.PA) of Nazar Singh in the presence of Prem Chand, registration of formal FIR (Ex.PA/2) by HC Om Parkash and conducting of proceeding inquest report under Section 176, Cr.P.C. by Prem Chand, Executive Magistrate. CRA No.69-SB of 2002 -5- Ramesh Kumar, PW2, has proved the medical treatment record of the deceased. UGC Mohar Pal, PW3 has proved his affidavit (Ex.PB) regarding taking of viscra and related documents from MHC Om Parkash on 27.9.2001. HC Om Parkash, PW4, after receiving statement (Ex.PA) with Endorsement (Ex.PA/1), recorded formal FIR (Ex.PA/2). C. Naresh Kumar, PW5, had collected viscra, post mortem report with sample seal in sealed cover from Dr. SP Mandal (PW7) and these articles had been taken in possession vide memo Ex.PD. PW6-C. Surjit Kumar had taken special reports to Illaqa Magistrate and Superintendent of Police, Panchkula and stated that he delivered them without any delay. 9. In the statement under Section 313 Cr.P.C., the accused denied all the allegations of the prosecution case and circumstances appearing in evidence against him and pleaded false implication in the case. In defence, DW1-Dr.Deepak, MO, General Hospital, Sector 16, Chandigarh; DW2- Balbir Singh, an official of PNB who proved Saving Bank Account of the parents of the appellant; DW3-Darshan Singh Cheema (neighbour); DW4- Dr. Rajvinder, Jr. Resident, Department of Internal Medicines, PGI, Chandigarh; DW5-Balraj Singh (neighbour), were examined. The learned trial Court, after hearing both the parties, convicted the accused-appellant under Sections304-B, IPC and sentenced him for the term as indicated in para 1 of this judgment, vide judgment and order dated 3.10.2001/5.10.2001, aggrieved from which, the present criminal appeal is preferred. CRA No.69-SB of 2002 -6- 10. Learned counsel for the appellant has submitted that the suicide in the instant case is not in relation to the demand of dowry. Even as per the case of the prosecution, the alleged demand of Rs.15,000/- was raised in the month of June, 2000. However, the occurrence in the instant case has taken place on 17.9.2000. As per the statement of Nazar Singh-PW8, the said amount was paid in three installments to Gurbachan Singh, father of the appellant who has already been acquitted by the learned trial Court. Learned counsel has further argued that the ingredients of Section 304-B, IPC are missing in the instant case. 11. Learned counsel has further argued that although the wife of the appellant has died within 7 years of the marriage yet there is nothing on record to suggest that the deceased was subjected to cruelty or harassment by the appellant or any of his other family members for or in connection with any demand of dowry. 12. Learned counsel has also referred to the statement of Balbir Singh, DW2, who has stated that at the time of occurrence, the father of the appellant was having Rs.2.79 lacs in his bank account. The brother of the appellant is settled in Germany. Therefore, there was no occasion for the accused-appellant to raise a demand of Rs.15,000/- as alleged. Thus, the learned counsel has argued that demand of Rs.15,000/- is totally wrong and also unbelievable keeping in view the financial status of the appellant and the same was allegedly given in three installments. 13. Learned counsel has next argued that as per the statement of Dr. Deepak Bakshi, DW1, the deceased was removed to the hospital by the appellant. The deceased was conscious. It has further come in the testimony of this witness that the deceased told him that she had taken one CRA No.69-SB of 2002 -7- tablet of Sulphas. Learned counsel has also referred to the statement of DW4-Dr. Rajiva I.G. of PGI, Chandigarh, who has stated that the deceased was brought to the PGI by Nazar Singh and she was conscious. On the basis of this, learned counsel has argued that the rukka (Ex.PA/2) was sent to the Police Station on 18.09.2000 (Ex.PA/1) and as such there was enough time available with the prosecution to record dying declaration of the deceased as it is established that she was fully conscious. This further goes to show that there was no ill-will against the appellant till then. Learned counsel has further referred to the statement of DW5-Balraj Singh in whose vehicle the deceased was removed to the Sector 16 General Hospital. He has further stated that the appellant enquired from the deceased 'whether she had taken any thing' but to that query, she chose to remain silent. 14. Learned counsel has further argued that there are contradictions in the statements of Prem Chand-PW1 and Babu Ram, I.O.-PW11. As per the statement of Prem Chand, PW1, the statement of the complainant Nazar Singh was recorded by Babu Ram, SI, in his presence which was attested by him i.e. Prem Chand, PW1, whereas, according to the testimony of Babu Ram, PW11, the statement of Nazar Singh was recorded by PW1. He has categorically stated that he did not record the statement of the complainant. 15. Learned counsel has further argued that the complainant Nazar Singh, PW8, is not an ordinary person as he is a Police Officer having the rank of Sub Inspector. Further, the maternal uncle of the deceased, Dilbagh Singh, is an Inspector with the Punjab Police. Still they did not make any complaint regarding demand of dowry before any authority. 16. Learned counsel has also argued that no dying declaration was recorded even though sufficient opportunities were available with the CRA No.69-SB of 2002 -8- prosecution to do so. 17. Learned counsel has referred to Ex.D2, letter written by the deceased to her brother-in-law, the contents of which go on to establish that the deceased had been living a happy married life and had been planning to move to Australia along with her husband. 18. The learned counsel has also stated that the couple had been making efforts to settle abroad. The appellant had passed the immigration test whereas the deceased doubted about her passing the same. It has come in the statement of the appellant, when examined under Section 313, Cr.P.C. that the deceased had a very sensitive nature and was in depression. Probably, due to depression, the deceased committed suicide only out of love for the appellant so that the deceased may not become a hurdle in the way of the appellant to go abroad as the appellant had already passed the immigration test for visiting Australia whereas she was doubtful about her success, so with a view that she may become a stumbling block in his career of the appellant, she took the extreme step. 19. On the other hand, learned counsel for the State has argued that demand of Rs.15,000/- is proved. The unnatural death of the deceased has taken place within 7 years of the marriage and the case of the prosecution is fully established against the appellant. Learned counsel has produced custody certificate of the appellant and the same is taken on record. 20. I have heard learned counsel for the parties and perused the record. 21. From the statement of the complainant, Nazar Singh, it emerges that the alleged demand of dowry of Rs.15,000/- was raised in the month of June. The occurrence in the instant case took place on 17.9.2000. As per CRA No.69-SB of 2002 -9- the statement of complainant-Nazar Singh, PW8, the payment was made in three installments to the father of the appellant, namely, Gurbachan Singh, who stands acquitted by the trial Court. The order of acquittal of Gurbachan Singh, recipient of the amount, has not been agitated by the complainant before any higher Court. Therefore, it appears that the cause of death is not relatable with the alleged demand of Rs.15,000/-, as projected by the prosecution. Further, keeping in view the financial status of the appellant's family, the demand of Rs.15,000/- seems to be improbable and it appears that the prosecution has suppressed the true genesis of the crime in the instant case. 22. Admittedly, the deceased was moved to the hospital by the appellant along with DW5-Gurbachan Singh. As per the statement of DW1- Dr. Bakshi, the deceased was conscious when she was brought to the hospital. The rukka Ex.PA was sent on the same date but no effort was made to record the dying declaration of the deceased. Neither any statement of the doctors who treated the deceased at the General Hospital, Sector 16, where she was initially taken, was recorded during the investigation, nor they were cited as witnesses, which makes the case of the prosecution doubtful. 23. Another aspect in the present case which draws my attention is the letter Ex.D2, written by the deceased to her brother-in-law. The contents of the letter amply prove that the deceased had been living a happy married life. There is not even a whisper of any maltreatment or harassment against the accused/appellant or his family members. 24 Learned counsel has placed reliance on 2010(3) RCR (Criminal) 291 titled Durga Prasad etc. V. State of Madhya Pradesh wherein CRA No.69-SB of 2002 -10- Hon'ble Supreme Court, before allowing the appeal, has observed as under:- “17. The decision cited by Mr. R.P. Gupta, learned Senior Advocate, in Biswajit Halder's case (supra) was rendered in almost similar circumstances. In order to bring home a conviction under Section 304 IPC, it will not be sufficient to only lead evidence showing that cruelty or harassment had been meted out to the victim, but that such treatment was in connection with the demand for dowry. In our view, the prosecution in this case has failed to fully satisfy the requirements of both Section 113-B of the Evidence Act, 1872 and Section 304-B of the Indian Penal Code. 18. Accordingly, we are unable to agree with the views expressed both by the trial Court, as ell as the High Court, and we are of the view that no case can be made out on the ground of insufficient evidence against the Appellants for conviction under Sections 498-A and 304-B IPC. The decision cited by Ms. Makhija in Anand Kumar's case (supra) deals with the proposition of shifting of onus of the burden of proof relating to the presumption which the Court is to draw under Section 113-B of the Evidence Act and does not help the case of the State in a situation where there is no material to presume that an offence under Section 304-B IPC had been committed.” 25. The case also needs to be looked from another angle. The appellant and the deceased wanted to join the brother of the appellant in Australia. Both of them had joined coaching centre for the immigration test. It has come on record that the entire fee and other expenses were borne by CRA No.69-SB of 2002 -11- the appellant. It has also come on record that the appellant had passed the aforesaid test for obtaining visa to Australia, whereas the deceased was not sure of her success. It has come in the statement of appellant, when examined under Section 313, Cr.P.C., that the deceased was of a very sensitive nature and probably due to depression, she committed suicide out of love for the appellant. The appellant was employed with a Company and was getting handsome salary. 26. From the totality of the facts and the conduct of the appellant in admitting the deceased to the hospital and further shifting her to PGI for better treatment and in view of the financial and social status of the families of the appellant, the case of dowry, as projected by the prosecution, is not made out. 27. In the circumstances, the present appeal is allowed and the judgment dated 3.10.2001 and order dated 5.10.2001 passed by the learned Additional Sessions Judge, Ambala is set aside. 28. Ordered accordingly. ( JITENDRA CHAUHAN ) July 23, 2010 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No