CRA-S-411-SB-2001 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-S-441-SB-2001 (O&M) Date of Decision: August 14, 2014 Gurnam Singh …Appellant Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI Present: Mr. S.S. Sidhu, Advocate for the appellant. Mr. Shilesh Gupta, Addl. Advocate General, Punjab, for the respondent NARESH KUMAR SANGHI, J. (Oral) 1. Challenge in this appeal is to the judgment of conviction and the order of sentence dated 5.3.2001, passed by the learned Sessions Judge, Gurdaspur, whereby the appellant, Gurnam Singh, was held guilty for having committed the offence punishable under Section 304-B, IPC, and ordered to undergo rigorous imprisonment for ten years besides payment of fine of `1,000/- and in default thereof to undergo further rigorous imprisonment for three months. 2. Brief facts of the case are that the marriage of the appellant, Gurnam Singh, was solemnized with Kulwant Kaur @ Gurmit Kaur (since deceased), daughter of Jagir Singh (PW4), resident of Village Khokhar, about six years prior to 17.1.1996, the day on which Kulwant Kaur @ Gurmit Kaur had died after 1 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) consuming Aluminum Phosphate. Before marriage, Gurmit Kaur was used to be called by the name of Kulwant Kaur. Gurnam Singh was an employee with the Punjab State Electricity Board. The appellant started maltreating Kulwant Kaur @ Gurmit Kaur for having brought inadequate dowry. Few demands of the appellant were fulfilled by Jagir Singh (PW4). 3. Dalbir Kaur (PW5) was an aunt (Mausi/sister of mother) of Kulwant Kaur @ Gurmit Kaur, whose marriage was also solemnized in Kaler Kalan, the village of the appellant. On 17.1.1996, she (Dalbir Kaur) informed Jagir Singh (PW4) that Kulwant Kaur @ Gurmit Kaur had consumed some poisonous substance and she was admitted in the Dhillon Hospital at Dhariwal. Jagir Singh (PW4) reached the said hospital and at the instructions of Dr. Baldev Singh Dhillon (PW8), shifted Kulwant Kaur @ Gurmit Kaur to Civil Hospital, Gurdaspur, where she died on the same day. The information was sent to the police and, as such, SI Janak Raj (PW10) along with other police officials reached the Police Station, City, Gurdaspur, and collected the written request received from the Civil Hospital, Gurdaspur, regarding the death of Gurmeet Kaur and thereafter visited the Civil Hospital, Gurdaspur. Statement (Ex.PF) of Jagir Singh (PW4) was recorded, wherein he disclosed about the demand of dowry and the harassment meted out to his daughter Kulwant Kaur @ Gurmit Kaur at the hands of the appellant. Contents of the statement (Ex.PF) were read over and explained to Jagir Singh (PW4) and he after admitting the same to be correct had put his 2 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) signatures at point Ex.PF/3 beneath his statement. SI Janak Raj (PW10) made his endorsement (Ex.PF/2) and sent the statement to the Police Station, Dhariwal, through Constable Saroop Singh for registration of the case, on the basis of which formal FIR (Ex.PF/1) was recorded by ASI Joginder Singh (not examined). 4. The inquest report (Ex.PE) was prepared and the dead body was sent for autopsy. Statements of the witnesses were recorded. The appellant appeared before the police on 27.01.1996 and on the same day he was arrested. The viscera etc. were sent to the Chemical Examiner, Punjab, Patiala. After completion of the investigation, the charge-sheet (report under Section 173, Cr.P.C.) was presented before the learned Area Judicial Magistrate. Copy of the charge-sheet along with relevant documents were supplied to the appellant free of cost, as envisaged under Section 207, Cr.P.C. Finding a prima facie case and holding that the offence punishable under Section 304-B, IPC, was exclusively triable by the Court of Session, the case was committed to the Court of Session at Gurdaspur. 5. Finding that the documents were disclosing the commission of offence punishable under Section 304-B, IPC, the charge was framed to which the appellant pleaded not guilty and claimed trial. 6. In order to substantiate its case, the prosecution examined the following witnesses:- PW1 Dr.Rajbir Sharma, Medical Officer, Civil Hospital, Gurdaspur: He deposed that on 17.1.1996 at 4:00 3 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) p.m., Kulwant Kaur @ Gurmit Kaur (since deceased), aged about 26 years, was admitted in the Emergency Ward of the Civil Hospital, Gurdaspur, as a case of poisoning and she remained under his treatment up to 6:06 p.m. till she expired. Vide memo (Ex.PA), he informed the police regarding her admission. He also proved the bed head ticket (Ex.PB). Vide memo (Ex.PC), information was sent to the Police regarding the death of Kulwant Kaur @ Gurmit Kaur. The patient remained unfit to make her statement. PW2 Dr. Rana Verma, Medical Officer, Civil Hospital, Gurdaspur: He deposed that on 18.1.1996, he had conducted postmortem on the dead-body of Kulwant Kaur @ Gurmit Kaur after getting it identified from Jaswinder Singh and Balwinder Singh. After autopsy, the dead body along with its belongings, wooden box containing viscera, an envelop containing carbon copy of postmortem report (Ex.PD), original police papers (24 in numbers), forwarding letters, sample of the seal used for sealing the box and the envelop etc., were handed over to the police. According to him, the probable time that elapsed between the death and the postmortem was between 24 hours. On 24.4.1996, on police request (Ex.PG) he gave his opinion (Exs.PG/1 and PG/2) to the effect that the probable time that elapsed between the injuries and the death was not 4 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) filled in the postmortem report as there was no injury on the dead-body. He further deposed that on receipt of the report of the Chemical Examiner (Ex.PH), he gave his report (Ex.PH/1) to the effect that the cause of death of Kulwant Kaur @ Gurmit Kaur was due to consumption of pesticide (Aluminum Phosphate). PW3 Constable Sudhir Kumar: He deposed that on 17.1.1996, MHC Anil Kumar (PW7) had handed over to him the Special Report (Ex.PJ) to deliver the same to the learned Area Judicial Magistrate and the same was handed over at 2:10 a.m. (intervening night of 17-18 January, 1996). PW4 Jagir Singh: He is the complainant of the case. He, inter alia, deposed that Kulwant Kaur @ Gurmit Kaur was his daughter and her marriage was solemnized with the appellant about six years prior to her death. After about six months of the marriage, the appellant started maltreating his daughter on the ground of brining less dowry articles in the marriage. The witness used to fulfill the desire of his daughter to the best possible extent. The appellant used to harass and beat Kulwant Kaur @ Gurmit Kaur and on several occasions she was sent at the house of the witness. About one year and six months prior to the death of Kulwant Kaur @ Gurmit Kaur, the witness had given a Steel Almirah, beddings and other articles at the 5 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) demand of the appellant, but still he was not satisfied and continued to demand the articles. Even a scooter was also demanded, but the said demand could not be fulfilled. However, a cash sum of `10,000/- was paid to the appellant and still he (appellant) was not satisfied. On 17.1.1996, Dalbir Kaur (PW5) informed the witness regarding consumption of poisonous substance by Kulwant Kaur @ Gurmit Kaur and regarding her admission at Dhillon Hospital at Dhariwal. After his arrival at the said hospital, he was informed by the Doctor Incharge of the said hospital that the patient might be taken to Civil Hospital, Gurdaspur, and as such, Kulwant Kaur @ Gurmit Kaur was got admitted at the Government Hospital, Gurdaspur. On the same day at about 7:00 p.m., Kulwant Kaur @ Gurmit Kaur expired in the same hospital. The witness suffered his statement (Ex.PF) to the police, which was read over to him and he signed the same in token of its correctness. The witness also deposed that during investigation, the bills (Mark ‘A’ and ‘B’) were handed over to the police vide memo (Ex. PK) PW5 Dalbir Kaur: She deposed that she was the mediator in the marriage of the appellant with Kulwant Kaur @ Gurmit Kaur. Jagir Singh (PW4) had given sufficient dowry articles at the time of the marriage to his daughter. After 2/4 years of the marriage, the 6 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) appellant started maltreating Kulwant Kaur @ Gurmit Kaur on account of insufficient dowry. The said fact was disclosed to her by Kulwant Kaur @ Gurmit Kaur. She further deposed that she was not aware as to whether Jagir Singh (PW4) had given dowry articles after the marriage. The appellant had not demanded any specific dowry article from Kulwant Kaur @ Gurmit Kaur in her presence. On 17.1.1996, she (Dalbir Kaur) went to the house of the appellant and found that Kulwant Kaur @ Gurmit Kaur and the appellant were quarrelling with each other. On seeing the witness, the appellant released Kulwant Kaur @ Gurmit Kaur from his grip and thereafter she (Kulwant Kaur @ Gurmit Kaur) consumed some thing which she was holding in her right hand and thereafter she (Kulwant Kaur @ Gurmit Kaur) fell down. On asking, Kulwant Kaur @ Gurmit Kaur replied that whatever she had to do, she had done. Jagir Singh (PW4) was informed regarding the incident. The witness further deposed that letter (Mark ‘C’) was handed over to the police by her, however, she was not in a position to identify the signature of the appellant, Gurnam Singh, on the said letter. PW6 J.S. Dhanjal, Draftsman: He had prepared the scaled site plan (Ex.PW6/A) at the pointing out of Jagir Singh (PW4). 7 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) PW7 HC Anil Kumar: He had tendered his affidavit (Ex.PM) to be read in evidence. In the affidavit, he, inter alia, deposed that on 17.1.1996 SI Janak Raj (PW10) had handed over to him viscera, postmortem report and clothes of the deceased. On 21.1.1996, the said articles were handed over to a constable for depositing the same with the Chemical Examiner, Punjab, Patiala. On 22.1.1996, the said constable handed over a receipt to him with regard to handing over the said articles to the office of the Chemical Examiner, Punjab. PW8 Dr. Baldev Singh Dhillon: He, inter alia, deposed that Kulwant Kaur @ Gurmit Kaur was brought to his Nursing Home on 17.1.1996 at about 11:00 a.m. by Gurnam Singh, husband of the patient. Kulwant Kaur @ Gurmit Kaur was in a state of shock with un- recordable low blood pressure. After providing first- aid, the patient was referred to the Civil Hospital, Gurdaspur. He proved the copy of the bed head ticket (Ex.PN). He also deposed that the patient had told him that she had taken some poison but no other fact was disclosed by the patient. PW9 Raghbir Singh: He is an Ex-Sarpanch of village Khokhar. He deposed that about 6½ years prior to the occurrence, the marriage of Kulwant Kaur @ Gurmit Kaur was solemnized with Gurnam Singh (appellant). 8 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) Sufficient dowry was given by Jagir Singh (PW4) at the time of the marriage. After two years of the marriage, the dispute regarding dowry had arisen and on that account Kulwant Kaur @ Gurmit Kaur was turned out of the house of her-in-laws. The said incident happened 2/3 times and the witness used to send Kulwant Kaur @ Gurmit Kaur back to her matrimonial home. Godrej Almirah, double bed, beddings, iron- box, buffalo, utensils etc. were given to the appellant a year prior to the occurrence by the parents of Jagir Singh (PW4). In addition to the above, a sum of `10,000/- in cash was also given to the appellant by Jagir Singh, about six months thereafter. On 17.1.1996, he came to know that Kulwant Kaur @ Gurmit Kaur, due to misbehavour of the accused, had consumed poison and died. He accompanied Jagir Singh (PW4) to Dhillon Hospital at Dhariwal. Kulwant Kaur @ Gurmit Kaur died at about 7:00 p.m. at Civil Hospital, Gurdaspur. PW10 SI Janak Raj: He is the investigating officer. He deposed in detail regarding the investigation conducted by him. After completion of the investigation, the charge-sheet (report under Section 173, Cr.P.C.) was presented by SI Swaran Singh (not examined) before the learned Area Judicial Magistrate. PW11 SI Pal Singh: He deposed that he had partially 9 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) investigated the matter and during the course of investigation, he had recorded the statement of Isher Singh, Granthi. On 20.4.1996, Jagir Singh (PW4) had produced before him two bills (Mark ‘A’ and ‘B’) and the same were taken into possession vide memo (Ex.PK). He also deposed that on 23.4.1996, on his application (Ex.PG), opinions (Exs. PG/1 & PG/2) were given by the doctor. 7. After completion of the evidence of the prosecution, the statement of the appellant, in terms of Section 313, Cr.P.C., was recorded. In response to Question No. 27, the appellant stated as under:- “Dalbir Kaur PW had taken from us on loan of Rs.10,000/- and gold ear rings at the time of the marriage of her daughter about a year before the death of my wife. After some time, I started demanding it back and also I had been pressing my wife Kulwant Kaur too bring all this from her Massi Dalbir Kaur. Caught between my insistence and non- return by Dalbir Kaur, my wife became exasperated and called Dalbir Kaur to our house on the day of occurrence (17.1.1996) and my wife told Dalbir Kaur about her plight without any positive response from Dalbir Kaur. In desperation she consumed pesticide tablets despite my desperate efforts to snatch it from her. I immediately removed her to Dhillon hospital, Dhariwal and sent the message to her parental home through my cousin Sukhwinder Singh. My wife was earning well from her school and I had no desire to get anything from my in-laws nor I did demand anything. I am innocent.” 10 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) 8. In defence evidence, the appellant examined Gajji (DW1), who deposed that the appellant was known to him since his house was situate at a distance of about 20/25 Karams from his house. The appellant and his wife were living amicably. About six years ago from his deposition, at about 6:30/7:00 a.m., Gurnam Singh (appellant) and Kulwant Kaur @ Gurmit Kaur (since deceased) called him to their house and asked him to call Dalbir Kaur and, as such, he went to the house of Dalbir Kaur and brought her there and after half-an-hour, it was known that Kulwant Kaur @ Gurmit Kaur had consumed poisonous substance. 9. After completion of the evidence and hearing both the sides, learned Trial Court held the appellant guilty for the offences punishable under Section 304-B, IPC, and awarded the sentence as has been mentioned in the initial part of this judgment. 10. Learned counsel for the appellant submitted that the prosecution has miserably failed to prove that soon before the death, Kulwant Kaur @ Gurmit Kaur was being harassed or maltreated or given beatings on account of demand of dowry, and for want of the said fact, the appellant cannot be held guilty for the offence punishable under Section 304-B, IPC, since that was the mandatory requirement. He further submitted that the prosecution has miserably failed to prove that at any point of time, the appellant ever demanded dowry from the complainant side. The evidence led in that regard was highly contradictory. The basic case of the prosecution as narrated in the FIR by the 11 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) complainant, Jagir Singh (PW4), was that at the time of marriage adequate dowry articles were not given to the appellant since those were the days of terrorism, but after about 1½ year of the marriage, the dowry articles were handed over to the appellant. However, Smt. Dalbir Kaur (PW5), who was claiming herself to be the mediator of the marriage, deposed that the dowry articles were handed over to the appellant at the time of the marriage and the same was the deposition of Raghbir Singh (PW9), who stated that he was the Ex-Sarpanch of the village and had good relations with the father of the deceased. 11. It was also argued by the learned counsel for the appellant that in the FIR, the complainant himself averred that the dowry articles were given to the appellant as per his (PW4) capacity. The said fact shows that there was no demand by the appellant and every father of the bride gives customary items to his daughter in the marriage. It has also been submitted that Kulwant Kaur @ Gurmit Kaur had died after about six years of her marriage and if there was any harassment or maltreatment on account of demand of dowry, then the matter would have been reported to the police or any other public authority, but the said fact is not coming forward from the prosecution evidence. 12. Learned counsel for the appellant further argued that Dalbir Kaur (PW5) was Mausi of Kulwant Kaur @ Gurmit Kaur and her marriage was also solemnized in the same village to which the appellant belonged. The marriage of the daughter of Dalbir Kaur was solemnized about a year prior to the death of Kulwant 12 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) Kaur @ Gurmit Kaur. At that time, Dalbir Kaur had borrowed `10,000/- and a pair of ear-rings from Kulwant Kaur @ Gurmit Kaur, but Dalbir Kaur did not return the same to her (Kulwant Kaur @ Gurmit Kaur). Therefore, there was bickering between the appellant and Kulwant Kaur @ Gurmit Kaur and, as such, Kulwant Kaur @ Gurmit Kaur was depressed. On the date of occurrence, the appellant and Kulwant Kaur @ Gurmit Kaur had a quarrel with regard to the said issue and Dalbir Kaur reached at the house of the appellant. In her presence, Kulwant Kaur @ Gurmit Kaur got herself released from the grip of the appellant and consumed poisonous substance and thereafter the whole story of demand of dowry, harassment, maltreatment etc. was concocted by the complainant side. He further submitted that the conduct of the accused in taking Kulwant Kaur @ Gurmit Kaur to the hospital and getting her admitted there, would clearly show that there was no mala fide intention on his part. In support of his contentions, learned counsel for the appellant has placed reliance on the judgments delivered in the cases of Sham Lal v. State of Haryana, 1997 (3) R.C.R. (Criminal) 85, and Bakshish Ram and another v. State of Punjab, 2013 (3) R.C.R. (Criminal) 924. 13. On the other hand, learned counsel for the State though tried to substantiate that there was continuous demand of dowry by the appellant from Kulwant Kaur @ Gurmit Kaur or her father, yet when confronted with the depositions of Jagir Singh (PW4), father of the deceased; Dalbir Kaur (PW5), Mausi of the 13 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) deceased; and Raghbir Singh (PW9), Ex-Sarpanch of the village of the complainant, then he could not point out that soon before the death, the appellant had demanded dowry and maltreated or harassed the deceased on that account. 14. When the learned counsel for the State failed in his attempt to show that all the mandatory ingredients of Section 340-B, IPC, were proved by the prosecution, then he submitted that the appellant had created such an atmosphere which compelled Kulwant Kaur @ Gurmit Kaur to commit suicide and, as such, the act of the appellant amounts to commission of the offence punishable under Section 306, IPC, and the same being lesser offence of Section 304-B, IPC, the appellant be held guilty of the offence punishable under Section 306, IPC, i.e. abetment to commit suicide. He also submitted that the appellant is also liable to be convicted for the offence punishable under Section 498-A, IPC, since it has emerged on record that the appellant had demanded dowry and on that account harassed and maltreated Kulwant Kaur @ Gurmit Kaur. 15. I have heard learned counsel for the parties and with their able assistance gone through the material available on record. 16. In order to attract the provisions of Section 304-B, IPC, the prosecution has to prove the following ingredients:- (i) The death of a woman was caused by burns or bodily injury or otherwise than under normal circumstances; 14 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) (ii) Such death had occurred within seven years of her marriage; (iii) She was subjected to cruelty or harassment by her husband or any relative of her husband; (iv) Such cruelty or harassment was for or in connection with, any demand of dowry; and (v) Such cruelty or harassment was meted out to the deceased soon before her death. 17. According to Section 113-B of the Indian Evidence Act, 1872, presumption as to dowry death can be raised when a woman had been subjected to cruelty or harassment for or in connection with, any demand for dowry, soon before her death. 18. In Sham Lal’s case (supra), Hon’ble the Supreme Court held that in the absence of any evidence that the deceased was subjected to harassment or cruelty soon before her death, in that eventuality, it was not permissible to take recourse to the legal presumption envisaged under Section 113-B of the Evidence Act. The rule of evidence is prescribed in law to obviate the prosecution of the difficulty to further prove that the offence was perpetrated by the husband, as then it would be the burden of the accused to rebut the presumption. 19. In Bakshish Ram’s case (supra), Hon’ble the Supreme Court held that one of the essential ingredients amongst others, in the provisions of Section 113-B of the Evidence Act and Section 304-B, IPC, is that the woman concerned must have been, “soon before her death subjected to cruelty or harassment, for or in 15 PRASHANT KAPOOR 2014.08.30 17:07 I attest to the accuracy of this order. CRA-S-411-SB-2001 (O&M) connection with demand of dowry”. If the alleged incident of cruelty is remote in time and as such becomes stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence. 20. In Kamesh Panjiyar @ Kamlesh v. State of Bihar, 2005 SCC (Criminal) 511, Hon’ble the Supreme court held that the expression “soon before” is very relevant where Section 113-B of the Evidence Act and Section 304-B, IPC, are pressed into service. “Soon before” is a relative term and it would depend upon circumstances of each case and no strait-jacket formula can be laid down as to what would constitute a period of soon before the occurrence. 21. After perusal of the facts and the law as enunciated by Hon’ble the Supreme Court in the above cited authorities, it is not disputed that a woman whose marriage was solemnized within seven years had died otherwise than under normal circumstances, but the other essential ingredients of Section 304-B, IPC, have not been proved by the prosecution. The perusal of the deposition of the complainant, Jagir Singh (PW4), Dalbir Kaur (PW5) and Raghbir Singh (PW9) clearly shows that there was no harassment or maltreatment meted out to Kulwant Kaur @ Gurmit Kaur on