Crl.Appeal No.458-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: 20. 9.2010 (I) Crl.Appeal No.458-SB of 2002 Surjit Kaur and others ... Appellants versus State of Punjab ... Respondent (II) Crl.Revision No.1800 of 2002 Jarnail Singh ... Petitioner versus Surjit Kaur and others ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Aditya Sanghi, Advocate, & Mr.Aditya Pal Singla, Advocate, for the appellants. Mr.Arshwinder Singh, DAG, Punjab. ... JORA SINGH, J. Crl.Appeal No.458-SB of 2002 was preferred by Surjit Kaur, Jaswinder Singh and Kesar Singh to impugn the judgment of conviction and order of sentence dated 11.3.2002 rendered by Additional Sessions Judge, Ludhiana, in Sessions Case No. 13 dated 3.2.2000, arising out of FIR 94 dated 29.8.1999 under Sections 498-A/ 304-B IPC, Police Station Sahnewal. By the said judgment, they were convicted under Section 304-B IPC and sentenced to undergo RI for eight years each. Crl.Revision No.1800 of 2002 was preferred by Jarnail Singh, Crl.Appeal No.458-SB of 2002 2 complainant, for enhancement of sentence and to pay compensation to the tune of Rs.5,00,000/-. Prosecution story, in brief, is that SI Dogar Ram received telephone call from Balbir Singh, Sarpanch, r/o Village Upplan, regarding death of Balwinder Kaur in road side accident. After telephonic message, police party headed by SI Dogar Ram had gone to Village Upplan. Jaswinder Singh, his father, Balbir Singh, Sarpanch of Village Upplan, and some other persons were also present there and in their presence, Jaswinder Singh reported to the police on 29.5.1999 that he was running a karyana shop in the village. He has one brother and three sisters. About 7 years back in the month of February, 1998, he was married with Balwinder Kaur d/o Jarnail Singh, r/o Village Chhotran, and from this wedlock, there was one son born in the month of December, 1998. His son was not keeping good health and was under treatment. Today, i.e., 29.5.1999, at about 9.00 AM, he along with his wife Balwinder Kaur and son on a scooter had gone to Bhaini Sahib. After getting treatment while they were returning to their village and were in the area of Village Panjetha at about 10.15 AM, then his wife, who was on pillion, had a fall from the scooter on the road. She received injuries on the occiput and back. Amrik Singh son of Prem Singh, r/o Village Upplan, came at the place of accident. Then he along with Amrik Singh had shifted his wife to Indira Hospital, Machhiwara. Keeping in view the condition of Balwinder Kaur, doctor of Indira Hospital, Machhiwara, directed him to shift Balwinder Kaur to Arora Neuro Centre, Ludhiana. Then, Balwinder Kaur was shifted to Arora Neuro Centre, Ludhiana. After admission in the hospital, treatment was given. At about 12/12.30 (noon), Balwinder Kaur had succumbed to her injuries. His father Crl.Appeal No.458-SB of 2002 3 and father-in-law Jarnail Singh along with some other persons came to Arora Neuro Centre, Ludhiana. Dead body was brought to his village. Statement (Ex.PG) was read over and explained to Jaswinder Singh, who had signed the same in token of its correctness. After making endorsement at 7.00 PM, statement was sent to the police station, on the basis of which, DDR No. 23 dated 29.5.1999 (Ex.PG/2) was recorded. On 29.8.1999, Inspector Manjit Singh, SHO, PS, Sahnewal, was present near main chowk, Sahnewal. Jarnail Singh, father of Balwinder Kaur, had met the police party and reported to the police that he was the resident of Village Chhotran. He has 4 sons and 4 daughters. Balwinder Kaur was married to Jaswinder Singh on 7.2.1998. Balwinder Kaur has one son, born in the month of December, 1998. Delivery was in Civil Hospital, Samrala. Death of Balwinder Kaur was on 29.5.1999. He was suspecting that death of Balwinder Kaur was by administering some poisonous substance or by causing injuries by her mother-in-law Surjit Kaur, father-in- law Kesar Singh and her husband Jaswinder Singh, because cousin brother of Jaswinder Singh was married 4 months earlier to the death of Balwinder Kaur. In laws of cousin brother of Jaswinder Singh gave sufficient dowry. After marriage, in-laws of Balwinder Kaur started misbehaving and harassing her for want of dowry. In-laws demanded Rs.20,000/- from Balwinder Kaur for house. Despite payment, at the time of lohri festival, in- laws of Balwinder Kaur demanded cooler and fridge. Regarding demand of cooler and fridge, he had informed his sons and reply of his sons was that at the time of lohri festival, they were to consider the demand of cooler and fridge. One week earlier to her death, Balwinder Kaur came to her parental house and informed that her father-in-law had thrown plate of chappatis on Crl.Appeal No.458-SB of 2002 4 her face. Later on, Kesar Singh had felt sorry by saying that incident be not brought to the notice of her parents. On 29.5.1999, Surjit Kaur, mother-in- law of Balwinder Kaur, came at 11.00 AM and informed that Balwinder Kaur had a fall from the scooter near Village Panjetha and received injuries. Balwinder Kaur was shifted to Arora Neuro Centre, Ludhiana. After that, they had gone to Arora Neuro Centre, Ludhiana, where dead body of Balwinder Kaur was found lying. Statement (Ex.PE) was read over and explained to Jarnail Singh, who had signed the same in token of its correctness. On the statement, endorsement (Ex.PE/1) was made to the effect that earlier DDR No.23 dated 29.5.1999 was recorded. Viscera was sent to the office of Chemical Examiner, Patiala. As per report of Chemical Examiner, death was due to Aluminium Phosphide. After endorsement at 12.30 PM, statement was sent to the police station, on the basis of which, formal FIR (Ex.PE/2) was recorded. After statement of Jaswinder Singh (Ex.PG), Jaswinder Singh had produced dupatta of deceased before SI Dogar Ram, and the same was taken into police possession vide memo (Ex.PL). On 30.5.1999, Constable Niranjan Singh produced a salwar and a kameez of deceased before SI Dogar Ram and the same were taken into police possession vide memo. After preparing inquest report, dead body was sent to Civil Hospital, Ludhiana, for postmortem examination. After recording statement of Jarnail Singh (Ex.PE), Inspector Manjit Singh had gone to the spot. Rough site plan with correct marginal notes was prepared. Supplementary statement of Jarnail Singh was recorded on 11.9.1999. On 6.10.1999, Jaswinder Singh and Kesar Singh were arrested. Crl.Appeal No.458-SB of 2002 5 After arrest of Surjit Kaur and completion of investigation, challan was presented in Court. Accused were charged under Sections 498-A/304-B IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined 8 witnesses. PW1 Dr. Harjap Singh was the member of the Board and on 30.5.1999, the Board had conducted postmortem examination on the dead body of Balwinder Kaur and observed as under:- “1. Swelling in an area of 2-1/2” x 2” on the prieto occipital area adjoining left to the mid line. 2. Abrasion superficial 1/2” x 3/4” and 3/4” x 3/4” on the left shoulder on superior aspect. 3. Oval contusion 1/4” x 1/4” on the lateral of left elbow with swelling around the back of the elbow joint. 4. Contusion 2-1/2” x 1” on the left side of upper part of abdomen. 5. Abrasion 2-1/2” x 3/4” on the lateral and upper part of left thigh.” Cause of death was kept pending and on receipt of report of Chemical Examiner, cause of death was due to aluminium phosphide and injuries to vital organs. Injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. PW8 Dr.S.K.Bansal from Arora Neuro Centre, Ludhiana, appeared and stated that on 29.5.1999, dead body of Balwinder kaur was brought to Arora Neuro Centre, Ludhiana, at 11.52 AM. Crl.Appeal No.458-SB of 2002 6 PW2 Jarnail Singh, father of Balwinder Kaur, reiterated prosecution story disclosed to Inspector Manjit Singh on 29.8.1999. PW3 Sat Pal Singh is the brother of deceased. He has also supported the version of Jarnail Singh (PW2). PW4 HC Manjit Singh stated that on 29.5.1999, one chunni was deposited with him by SI Dogar Ram. On 30.5.1999, SI Dogar Ram deposited a salwar and a kameez and the same were made into a parcel. On 6.10.1999, chunni, salwar and kameez were produced before Inspector Manjit Singh, SHO, and the same were made into a sealed parcel, sealed with seal bearing impression `MS'. Sealed parcel was taken into police possession vide memo (Ex.PF) attested by him. PW5 Constable Niranjan Singh got conducted postmortem examination on the dead body of Balwinder Kaur from Civil Hospital, Ludhiana. After postmortem examination, doctor had handed over to him one sealed envelope containing postmortem report with some other papers, one sealed parcel containing viscera and one parcel of clothes worn by the deceased. Case property was produced before SI Dogar Ram and was taken into police possession vide memo attested by him. Parcel of viscera and sealed envelope were deposited in the office of Chemical Examiner, Patiala. PW6 DSP Manjit Singh had partly investigated the case after SI Dogar Ram. PW7 SI Dogar Ram had investigated the case at the initial stage. 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. Crl.Appeal No.458-SB of 2002 7 Defence version of the accused was that Balwinder Kaur and Jaswinder Singh had gone to Bhaini Sahib on a scooter on 29.5.1999. On the way, Balwinder Kaur had a fall from the scooter and suffered injuries resulting in her death. Balwinder Kaur was not harassed. There was no demand of dowry or money at any stage. In defence, DW1 Ravinder Singh, Inspector, Income Tax, produced record from the office of Deputy Commissioner of Income Tax in respect of Dr. S.K.Bansal c/o Arora Neuro Centre, Ludhiana. As per return for the assessment year 2000-2001, Dr. S.K. Bansal has not shown any salary income. DW2 Dr. Sanjiv Aggarwal from Indira Hospital, Machhiwara, stated that on 29.5.1999 at about 11/11.30 AM, Jaswinder Singh and Amrik Singh brought Balwinder Kaur and informed that Balwinder Kaur had a fall from the scooter. She was unconscious. Balwinder Kaur had head injury. Keeping in view condition of Balwinder Kaur, patient was referred to Arora Neuro Centre, Ludhiana. Ex.DD was the reference slip. DW3 Amrik Singh stated that on 29.5.1999, he was near Village Panjetha on a scooter, then noticed Jaswinder Singh and his wife Balwinder Kaur on scooter. Jaswinder Singh was driving the scooter. Balwinder Kaur had a fall from the scooter and suffered injuries on her head. She was also having a child. Condition of Balwinder Kaur was very serious. After parking his scooter, he along with Jaswinder Singh had shifted Balwinder Kaur to Indira Hospital, Machhiwara, on the scooter of Jaswinder Singh. Incident was brought to the notice of doctor. Condition of Balwinder Kaur was critical and she was referred to Arora Neuro Centre, Ludhiana. Sumo was arranged by Jaswinder Singh and Balwinder Kaur was Crl.Appeal No.458-SB of 2002 8 shifted to Arora Neuro Centre, Ludhiana. He gave information at the house of Jaswinder Singh. DW4 Balbir Singh, Sarpanch of Village Upplan, stated that Jaswinder Singh was married with Balwinder Kaur. Parents of Balwinder Kaur never complained about any maltreatment or harassment. About 2-1/2 – 2-1/4 years back, Jaswinder Singh came and informed about the death of his wife by fall from scooter. He was requested to inform the police. Police came to the house of Jaswinder Singh. At that time, father and brother of Balwinder Kaur along with some other respectable persons were also present. Parents of Balwinder Kaur did not state anything against the accused. Inquest report (Ex.PK) was prepared, which was signed by him. After postmortem examination, dead body was cremated. He had gone to Kiratpur Sahib, where last remains were to be immersed. At Kiratpur Sahib, parents of deceased started saying that they wanted to take back dowry articles. He requested them that after bhog ceremony, dispute regarding dowry would be solved. There was altercation amongst the parties at Kiratpur Sahib. Jarnail Singh threatened that he would see the other party. Jarnail Singh did not attend the bhog ceremony of the deceased. After hearing learned Public Prosecutor for the State, learned 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 the file. Learned counsel for the appellants argued that on 29.5.1999 at about 9.00 AM, Jaswinder Singh along with his wife Balwinder Kaur (deceased) and minor son had gone to Bhaini Sahib. Son of the deceased Crl.Appeal No.458-SB of 2002 9 was not keeping good health. After getting treatment from Bhaini Sahib, they were returning to their village. At about 10.15 AM, they were in the area of Village Panjetha, then his wife, who was on pillion, had a fall on the road. Jaswinder Singh was driving the scooter. Balwinder Kaur received injuries on the back side of her head and back. Amrik Singh son of Prem Singh, r/o Village Upplan, had witnessed the occurrence. After accident, Balwinder Kaur was shifted to Indira Hospital, Machhiwara, by Jaswinder Singh and Amrik Singh. Keeping in view the condition of Balwinder Kaur, doctor of Indira Hospital, Machhiwara, referred Balwinder Kaur to Arora Neuro Centre, Ludhiana. After arranging a vehicle, Balwinder Kaur was being shifted to Arora Neuro Centre, Ludhiana, but on the way, Balwinder Kaur had succumbed to her injuries. Amrik Singh had informed parents of Jaswinder Singh. Then Surjit Kaur had gone to the parental house of Balwinder Kaur and gave information that Balwinder Kaur received injuries by fall from a scooter. Balwinder Kaur was shifted to Arora Neuro Centre, Ludhiana. Father, brother and other relations of Balwinder Kaur were present in the hospital and in their presence, dead body was brought to Village Upplan. Sarpanch of Village Upplan on telephone had informed the police. Police party headed by SI Dogar Ram had gone to the house of appellants. After preparing inquest report, dead body was sent to Civil Hospital, Ludhiana, for postmortem examination and after postmortem examination, dead body was cremated in the presence of Jarnail Singh, father of the deceased, and other respectables of Village Upplan and Chhotran. For about 3 months, Jarnail Singh remained silent. Occurrence is dated 29.5.1999, whereas FIR is dated 29.8.1999. FIR was registered on the allegation that in-laws of the deceased used to harass and maltreat the Crl.Appeal No.458-SB of 2002 10 deceased for want of dowry. In case, appellants used to harass and maltreat the deceased for want of dowry, then at the time of cremation, Jarnail Singh or his relations could easily report to the police that during life time, Balwinder Kaur used to report them that she was harassed for want of dowry. Rs.20,000/- was demanded for a house. After death or at the time of cremation, there was no objection from the side of Jarnail Singh that appellants were harassing or maltreating the deceased for want of dowry. FIR was registered after receipt of report of Chemical Examiner, and report was to the effect that Aluminium Phosphide was detected but quantity of Aluminium Phosphide was not given. Chemical Examiner was required to report as to what was the quantity of Aluminium Phosphide administered to the deceased. Case is based on circumstantial evidence. No eye witness. When case is based on circumstantial evidence, then prosecution was required to lead cogent and convincing evidence as to what was the motive. Before the occurrence, no complaint to any authority. No letter from the side of deceased that she was harassed by the appellants for want of dowry. If during life time, Balwinder Kaur reported to her parents that she was harassed for want of dowry, then parents of Balwinder Kaur should have reported the matter to the police. There was no idea to remain silent. If report was not to be lodged with the police, then Jarnail Singh should have convened a panchayat. Demand of Rs.20,000/- for house is not to be treated as dowry. When there are two versions, then the version favourable to the appellants is to be accepted. According to the prosecution story, poisonous substance was administered as per report of Chemical Examiner and injuries were given, whereas defence version is that injuries were suffered by fall from the scooter. Aluminium Phosphide has pungent smell and cannot be Crl.Appeal No.458-SB of 2002 11 administered easily. No sign of resistance by the deceased. Deceased had one minor son and was residing happily at her in-laws house. Daily vegetables and fruits are given injections to increase production or early ripe. Before milching, injections are given to the cattle for producing more milk. In case of pure vegetarian if viscera is sent to the laboratory after death, then same report, i.e., presence of Aluminium Phosphide, would come. In the absence of report of laboratory as to what was the quantity of Aluminium Phosphide, report of Chemical Examiner is not helpful to the prosecution that poisonous substance was administered to the deceased. Defence version seems to be more probable than the prosecution. Learned State counsel argued that marriage of deceased with Jaswinder Singh was solemnised in the month of February, 1998. Unnatural death on 29.5.1999. According to defence version, unnatural death due to fall from scooter, but defence version is not correct one. Appellants cannot back out from statement (Ex.PG) dated 29.5.1999. Version of Jaswinder Singh was that he along with his wife and son on a scooter had gone to Bhaini Sahib and while returning from Bhaini Sahib, Balwinder Kaur had a fall from the scooter. Son of Balwinder Kaur was hardly 6 months old, but no injury to 6 months' old son. Amrik Singh is from the village of the appellants. Version of Amrik Singh was that he had seen the occurrence and after Balwinder Kaur had received injuries by fall from the scooter, then he along with Jaswinder Singh had shifted Balwinder Kaur to Indira Hospital, Machhiwara, but the appellants are not clear where the minor son had gone. Minor son was in the lap of Balwinder Kaur and if Balwinder Kaur had a fall from the scooter, then son, aged about 6 months, was also expected to receive injuries. No explanation from the side of Jaswinder Crl.Appeal No.458-SB of 2002 12 Singh to whom minor son was handed over. Amrik Singh when appeared in defence, then stated that on the scooter of Jaswinder Singh, Balwinder Kaur and her minor son were shifted to Indira Hospital, Machhiwara. Balwinder Kaur after receipt of injuries was unconscious. Her condition was very critical. Then Amrik Singh was not in a position to hold Balwinder Kaur and her minor son while on pillion because Jaswinder Singh was driving the scooter. Second allegation of Jaswinder Singh was that from Indira Hospital, Machhiwara, Balwinder Kaur was referred to Arora Neuro Centre, Ludhiana. Ex.DD is the certificate of Indira Hospital, Machhiwara, but Ex.DD is not helpful to the appellants because name of patient was not written. Ex.DD is also silent as to who had brought the patient to Indira Hospital, Machhiwara, whether Jaswinder Singh or Amrik Singh. From Indira Hospital, Machhiwara, Balwinder Kaur was referred to Arora Neuro Centre, Ludhiana. As per Jaswinder Singh, vehicle was arranged, then Balwinder Kaur was brought to Arora Neuro Centre, Ludhiana. Balwinder Kaur was admitted in the hospital. Treatment was given but ultimately, death at about 12/12.30 (noon). Dr. S.K.Bansal from Arora Neuro Centre, Ludhiana, appeared as PW8 and stated that on 29.5.1999, dead body of Balwinder Kaur was brought at 11.52 AM. So after death on the way, there was no idea to admit in the hospital and give treatment. After death, intimation was given to the police. Then SI Dogar Ram had gone to the house of the appellants. Statement of Jaswinder Singh (Ex.PG) was recorded. Inquest report (Ex.PK) was prepared but SI Dogar Ram had not gone to the place of accident. Blood stained earth was not lifted from the spot. No explanation is forthcoming from the side of the appellants where the minor son had gone after the accident. No oral or documentary proof on Crl.Appeal No.458-SB of 2002 13 the file as to whether minor son was under treatment of any doctor at Bhaini Sahib. In fact story of accident was concocted to misguide the police and complainant party. Death was at the house of the appellants. Poisonous substance was administered and this fact is clear from the report of Chemical Examiner. Injuries noticed on the person of the deceased were ante mortem in nature. Appellants were to explain how unnatural death in the in-laws’ house. If the complainant party was to implicate the appellants, then on 29.5.1999, Jarnail Singh could easily report to the police that Balwinder Kaur was being harassed for want of dowry but believing the version of Surjit Kaur as correct one, complainant party did not lodge protest. After receipt of report of Chemical Examiner, police was informed that at one time, Rs.20,000/- was demanded for house. Payment was made to Balwinder Kaur. After marriage of cousin brother of Jaswinder Singh when sufficient dowry was given, then appellants started misbehaving and harassing Balwinder Kaur for want of dowry. Cooler and fridge were demanded. No case of the appellants that Balwinder Kaur was not keeping good health and was under depression and committed suicide. When unnatural death due to injuries and Aluminium Phosphide and death was within 7 years from the date of marriage, then presumption is that dowry death. As per prosecution story, Balwinder Kaur was being harassed for want of dowry. Poisonous substance was administered. Unnatural death within 7 years from the date of marriage. Harassment on account of dowry soon before the death, whereas defence version of the appellants was that on the day of occurrence, Balwinder Kaur and Jaswinder Singh along with their minor son had gone to Bhaini Sahib for treatment because their son was not Crl.Appeal No.458-SB of 2002 14 keeping good health. While returning from Bhaini Sahib, near Village Panjetha, Balwinder Kaur had a fall from the scooter and received injuries. Death was in road side accident. Now question is as to whether unnatural death was as per prosecution story or death was due to receipt of injuries by fall from the scooter. Appellants are to be presumed innocent unless guilt is proved. Appellants were expected to remain silent. When examined under Section 313 Cr.P.C., then appellants could easily deny the prosecution allegation but once they have taken the plea that Balwinder Kaur received injuries by fall from the scooter, then defence version is to be scrutinized with great care and caution as to whether defence version is probable or false plea was taken. On 29.5.1999, statement of Jaswinder Singh one of the appellants (Ex.PG) was recorded by SI Dogar Ram. SI Dogar Ram appeared as PW7 and stated that on receipt of telephone call from Balbir Singh, Sarpanch, he had gone to the house of Jaswinder Singh. Statement of Jaswinder Singh (Ex.PG) was recorded. After making endorsement, statement was sent to the police station, on the basis of which, DDR No. 23 dated 29.5.1999 (Ex.PG/2) was recorded. Inquest report (Ex.PK) was prepared. Jaswinder Singh had also produced dupatta of the deceased, which was taken into police possession vide memo (Ex.PL). On 30.5.1999, Constable Niranjan Singh produced before him salwar and kameej of the deceased, which were taken into police possession. No suggestion was given to SI Dogar Ram that Jaswinder Singh did not suffer statement (Ex.PG) or signatures of Jaswinder Singh were obtained on blank papers. Jaswinder Singh when examined under Section 313 Cr.P.C., then did not Crl.Appeal No.458-SB of 2002 15 state a word that his signatures were obtained on blank papers or he did not suffer statement (Ex.PG) before SI Dogar Ram. So, one thing is clear that on