Crl. A. No. 533-SB of 2000 v. The State of Punjab

inability to meet the demand made by the first accused. About one month thereafter PW-6 and his wife went to the house of the accused. The deceased Harjit Kaur informed them that the accused were beating her as the demand made by the first accused, was not met. PW-6 and his wife came down to the house of PW-5 Harbhajan Singh and informed him about the maltreatment meted out to the deceased Harjit Kaur. Crl. A. No. 533-SB of 2000 --3- (b) PW-5 Harbhajan Singh proceeded to the house of the accused on 07.06.1996. He found that the accused were quarrelling with Harjit Kaur. PW-3 received a telephonic message from his sister Harjit Kaur stating that she was being maltreated and harassed by the accused in connection with the demand of dowry. (c) On 12.06.1996 Davinder Singh went to the house of the accused at Ludhiana. He saw that the accused were quarrelling with his sister. His sister told him that she would also accompany him but the accused did not allow her to accompany. When PW-3 was at the house of PW-5, a message came at about 3.30 PM that the accused had poured kerosene oil on Harjit Kaur and set fire to her. PW-3 and PW- 5 proceeded to the hospital where PW-3 found the dead body of his sister lying in the mortuary of Civil Hospital. He gave statement Ex.PG before Gurmail Singh, Assistant Sub Inspector, PW-8. (d) Gurmail Singh, ASI, PW-8 took up the case for investigation and arranged to conduct the post mortem examination by Dr. Ashok Raswant, PW-1. Crl. A. No. 533-SB of 2000 --4- (e) Dr. Ashok Raswant, PW-1 attached with Civil Hospital, Ludhiana, conducted post mortem examination on the dead body of Harjit Kaur at about 3.15 PM on 13.6.1996. He found that the rigor mortis was present on the dead body of the deceased. There was smell of kerosene oil from the dead body. Superficial to deep burns all over the body except the sole of both feet, were present. He opined in his post mortem report that the deceased had died due to shock and on account of extensive burns which were sufficient to cause the death in the ordinary course of nature. (f) Surinder Singh, ASI, PW-7 arrested the accused and remanded them to judicial custody. PW-8 Gurmail Singh, ASI having completed investigation, filed final report against the accused.

3. On the side of the defence, the medical records of the deceased Harjit Kaur relating to the treatment which she had taken for epilepsy were marked as Ex.D-1 to Ex.D-4 through PW-7. The first accused was examined as DW-1. He has spoken to the fact that the letters Ex.D-5 to Ex.D-7 were written by the deceased to him, his mother and his father from her parental home. Crl. A. No. 533-SB of 2000 --5-

4. The trial Court having placed complete reliance upon the evidence of PW-3, PW-5 and PW-6, in the background of the medical evidence, returned a finding that both the accused have committed an offence punishable under Sections 304-B of the Indian Penal Code.

5. The learned Counsel appearing for the appellants would submit that PW-3, the brother of the deceased would not have been present at the matrimonial house of the deceased, in as much as he has come out with contradictory version as to the time of death of the deceased. A stranger who informed PW-3 about the admission of the deceased to the hospital with burn injuries was not examined by the prosecution. It is his further submission that the fact that no one had lodged any complaint as to the demand of dowry either to the police or to the Panchayat would go to show that the prosecution has come out with a concocted story that the death was due to demand of dowry coupled with cruelty. The trial Court had lost sight of the fact that there was no demand of dowry at the time of marriage. Admittedly the marriage was solemnized in a very simple form. Bringing to the notice of this Court the evidence of PW-2 and PW-6, he would submit that both of them would not have got wherewithal to Crl. A. No. 533-SB of 2000 --6- meet the demand of dowry as they were eking out their livelihood by selling medicines in the buses. Referring to the letters Ex.D5 to Ex.D7 allegedly written by the deceased to the accused, the learned Counsel for the appellants would submit that the deceased had been living peacefully without any harassment from the in-laws side. Referring to Ex.D1 to Ex.D4, the learned Counsel appearing for the appellants would submit that the deceased might have ended her life as she was fed up with the ailment of epilepse. The first accused would not have taken the deceased to the hospital. A demand of Rs.10,000/- for promoting the business would not amount to demand of dowry. There was virtually no evidence to establish that soon before her death, there was any cruelty committed by the accused. It is his further submission that PW-8 had not rushed to the hospital to make arrangement for recording dying declaration on receipt of intimation at 2.15 PM on 12.6.1996. The inaction on the part of PW-8 would go to show that he was not at all present in the hospital till evening and a case was concocted with the assistance of PW-3. Lastly he would submit that considering the age of the second accused and her major ailment, a lenient view may be taken in the matter of sentence, if the Court comes to the Crl. A. No. 533-SB of 2000 --7- conclusion that both the accused committed an offence punishable under Section 304-B of the Indian Penal Code.

6. The learned Deputy Advocate General, appearing for the respondent-State would submit that PW-3, PW-5 and PW-6 have cogently spoken to the persistent demand of dowry made by the accused. There is no reason to reject the testimonies of PW-3, PW-5 and PW-6. The minor discrepancies in the evidence of PW-3 as to the time of death of the deceased would not go to the root of the case. It is his further submission that the prosecution has not established to the satisfaction of the Court that the letters Ex.D5 to D7 were authored only by the deceased Harjit Kaur. Therefore, it is his submission that the trial Court has rightly passed a verdict of conviction against both the accused for an offence punishable under Section 304-B of the Indian Penal Code.

7. PW-3 the brother, PW-6 the father and PW-5 the material uncle of the deceased are the star witnesses in this case. PW-3 has categorically deposed before the trial Court that the first accused came down to his house and demanded a sum of Rs.10,000/- for promoting his business. The said demand was followed by maltreatment, it has been deposed by PW-3. He had also received a telephonic message from his Crl. A. No. 533-SB of 2000 --8- sister Harjit Kaur that the maltreatment and harassment continued as the demand of dowry was not met by her parents. He had to visit the house of his sister on 12.6.1996, the very fateful day and witnessed the quarrel between the first accused and his sister. The deceased had pleaded with PW-3 that she would also accompany him, but the accused had not allowed her to accompany with him.

8. PW-6, the father of the deceased would also corroborate the evidence of PW-3 to the effect that there was a demand of Rs.10,000/- by the accused. The deceased informed him of the demand made by the accused. PW-6 has expressed his inability to fulfil such a demand. When the first accused had come alongwith the deceased to the parental house, he had made a remark that the consequence of non-fulfilment of demand, demanded by him, would be realized later. He has also deposed before the trial Court that he went alongwith his wife Manjit Kaur to the house of the first accused. The deceased Harjit Kaur told them that the accused had started beating her as the amount demanded by the accused was not paid. Harjit Kaur informed them through telephone that the first accused was beating her. Crl. A. No. 533-SB of 2000 --9-

9. PW-5 who is the maternal uncle of the deceased would depose that he proceeded to the house of the accused on

7.6.1996. He found the first accused quarrelling with Harjit Kaur.

10. There is no reason to disbelieve the evidence of PW-3, PW-5 and PW-6. It is true that they were closely related to the deceased Harjit Kaur. The harassment and cruelty committed to the bride would be confided only to the close relative of the bride and not to the public in village. No wonder, the close relatives of the deceased have deposed that the demand of dowry coupled with cruelty had taken away the precious life of Harjit Kaur.

11. PW-1 Dr. Ashok Raswant, who conducted the post mortem examination, has given his final opinion that Harjit Kaur, who sustained extensive burn injuries on her body had died due to shock emanated from such injuries, which were sufficient to cause death in ordinary course of nature.

12. The prosecution could establish that the death of Harjit Kaur had taken place within 1-1/2 years from the date of marriage. The witnesses referred to above have also spoken to the fact that the demand of a sum of Rs.10,000/- to promote the business of the first accused coupled with the Crl. A. No. 533-SB of 2000 --10- harassment and cruelty had taken away the precious life of Harjit Kaur.

13. PW-3 would state that he proceeded to the house of the accused at 10.00 AM on 12.6.1996. He having stayed there for about half an hour, witnessed the accused quarrelling with his sister. At about 3.00 PM he reached the house of PW-5. Some unknown persons informed him that his sister sustained burn injuries and was hospitalized. PW3 and PW-5 would depose that a stranger came and informed them that the accused set fire to her and as a result of which she sustained injuries. The prosecution should have examined that stranger, who gave such information to PW-3 and PW-5 to establish that it was the accused, who set fire to the victim, but unfortunately the prosecution could not establish the case of murder against the accused. The non-examination of the said stranger would not cause any dent in the case of the prosecution that the accused committed dowry death. We are concerned with the demand of dowry, the cruelty that followed and the death which occasioned on account of the same with seven years of marriage. Crl. A. No. 533-SB of 2000 --11-

14. It is true that no witness has spoken to the fact that any complaint was lodged either to the Panchayat or to the Police as to the demand of dowry made by the first accused. The marriage itself had taken place about 1-1/2 years prior to the death of the victim. It is quite common for the parents of the bride to wait for the couple to settle down in their life. Any undue anxiety exhibited by the parents of the bride would cost the very marital life of the bride. No wonder PW-3, PW-5 and PW-6 had not approached the police or the Panchayat to solve the persistent demand of dowry made by the first accused.

15. PW-3 and PW-6 would admit during the course of evidence that they had been selling medicines in the buses to eke out their livelihood. They had to resist the demand of the first accused for Rs.10,000/- as they had been in a poor financial condition. But the poor financial condition matters not for the persons who make a demand of dowry.

16. Ex.D1 to Ex.D4 would go to show that the victim had taken treatment for epilepsy but there is no material on record to establish that she was afflicted with depression on account of such a disease and as a result of which she ended her life. Without any foundation, the Court cannot surmise Crl. A. No. 533-SB of 2000 --12- that the epilepsy which afflicted the victim led her to depression in her life and ultimately took away her life.

17. The medical records would establish that the first accused took the victim to the hospital for treatment. It is argued that the husband would not have ventured to take the victim to the hospital if at all he wanted the victim to die. For vary many reasons the husband would take his wife to the hospital for treatment. There may be outcry of public, if the husband did not take the victim to the hospital. After the victim had consumed poison, a wisdom might have dawn on the accused that he had committed a mistake. The efforts taken by the husband to admit the victim in the hospital would not relieve him of the charge of dowry death.

18. PW-3 in his evidence would state that he gave statement to the police at about 4.00 PM. Gurmail Singh, ASI, PW-8 would depose that he recorded the statement of PW-3 at 4.15 PM at the hospital. PW-4 the doctor, who sent death intimation to the police, has deposed that the death of the victim took place at 4.30 PM. It is submitted that PW-3 would not have been present at the matrimonial house of his sister on the fateful day. He would not have been present at the hospital when the police came there for taking cognizance Crl. A. No. 533-SB of 2000 --13- of the matter. On a perusal of Ex.PG , the statement recorded by the police and the endorsement found thereon, it is found that endorsement was made by the police, who recorded the statement at 5.50 PM. There is some minor discrepancies as to the time of death of the deceased, but the fact remains that the victim died at 4.30 PM on 12.06.1996. PW-3 was not sure as to when he exactly gave his statement. That is the reason why he would depose that at about 3.55 PM or 4.00 PM he gave the statement. PW-8 having recollected from his memory would state that at 4.15 PM the statement was recorded. There is no record to show that PW-8 recorded the statement of PW-3 at 4.15 PM. Ex.PG, the FIR, which is the only record relating to the above issue available would go to show that the endorsement was finally made at 5.15 PM on the statement of PW-3. A difference of about 15 to 30 minutes in recording the statement of PW-3 does not go to the root of the case. Just because he has stated that he gave the statement between 3.55 PM or 4.00 PM on the fateful day, the Court cannot suspect his evidence that he had come to the matrimonial house of his sister in the morning on the fateful day of occurrence. Crl. A. No. 533-SB of 2000 --14-

19. The statement of PW-5 was recorded at 8.00 PM at the hospital. PW-5 had not set the law in motion by giving a statement. PW-8 having recorded the statement of PW-3, made arrangement for registration of the case based thereupon and then he has taken steps to conduct post mortem examination of the deceased by PW-1. Therefore the delay in examination of PW-8 would not cause any doubt about the presence of PW-5 at the hospital. Even otherwise PW-5 does not speak about the statement if any given by the deceased.

20. It is true that PW-8 had not taken any efforts for recording the dying declaration of the victim. PW-8 had received the information at 2.00 PM. The victim had died at

4.30 PM. It is nobody's case that the victim was conscious and was able to speak about the occurrence. Of course PW-8 should have rushed to the hospital for making arrangement for recording the dying declaration of the sinking victim. But in as much as there is no material to show that the victim was in a capacity to speak about the occurrence, the lethargy, if any, of PW-8 matters not. not.

21. The defence relies upon the letters Ex.D-5 to Ex.D-7 alleged to have been written by the victim from her parental house to accused no.1 and 2 as well as her father-in- Crl. A. No. 533-SB of 2000 --15- law. The authorship of those letters attributed to the victim was stoutly denied by the prosecution. Those letters were only produced during the course of evidence of the first accused. It is contended by the first accused that these letters were received by post. The postal covers of those letters were not produced before the Court to verify the authorship of the same. In as much as the prosecution has set up a plea that those letters were concocted to promote the defence of the accused and the signatures of the victim were stoutly denied, it is for the defence to establish that these letters were in fact scribed by the victim and sent to the accused as well as to her father-in-law. No satisfactory material was available to establish that it was only the victim, who dispatched those letters to the accused as well as to her father-in-law. Therefore, no reliance can be placed upon those three letters namely Ex.D5 to Ex.D7.

22. On a thorough perusal of the evidence of star witnesses PW-3 , PW5 and PW-6, it is found that PW-3 has reeled out only hearsay stuff with respect to the demand of dowry made by the second accused. He was very specific that it was only the first accused Satpal Singh, who demanded a sum of Rs.10,000/- for promoting his business. PW-5 does Crl. A. No. 533-SB of 2000 --16- not speak anything about the direct knowledge of demand of dowry made by the second accused. PW-6 also has generally referred to the role of the second accused. But he has been very specific as to the role of the first accused in the demand of dowry coupled with cruelty. Therefore in the considered opinion of this Court, the prosecution has not made out a case against the second accused, but it has made out a case for offence under Section 304-B of the Indian Penal Code against the first accused.

23. Learned Counsel appearing for the appellant refers to the decision of Patna High Court in Chandrama Singh and others v. The State of Bihar 2006(3) RCR (Criminal) 105 . That was a case where there was lack of proof of cruelty and harassement meted out to the deceased and in such circumstances, the High Court of Patna refused to raise presumption of dowry death under Section 113-B of the Evidence Act.

24. In the instant case, PW-3 and PW-6 have spoken to the harassement meted out to the victim by the first accused. PW-3 had witnessed the quarrel between the first accused and the deceased even on the day of occurrence. PW-5 has deposed that the victim confided to him when he and his wife Crl. A. No. 533-SB of 2000 --17- went to the matrimonial house of his daughter that she had been harassed on account of demand of dowry. In view of the above facts and circumstances of this case, the decision of Patna High Court will not apply to this case.

25. In Sunil Bajaj v. State of M.P. 2001(4) RCR (Criminal) 401 , the Hon'ble Supreme Court having found that there was no evidence to establish the demand of dowry and that the letters written by the deceased to his parents, did not whisper about the cruelty committed to her, set aside the conviction recorded by the trial Court for offence under Section 304-B of the Indian Penal Code. In the instant case, the demand of Rs.10,000/- for promoting the business of the first accused and the consequent ill treatment were spoken to by PW3 and PW-6. In as much as there is evidence to establish that there was demand of dowry coupled with cruelty, which took away the life of the victim, the aforesaid ratio too will not apply to the facts of this case.

26. While setting aside the conviction under Section 304-B of the Indian Penal Code in Sukhdev Singh v. State of Punjab 1991(2) RCR 118 this Court has observed that the accused who administered poison would be the last person to apprise the neighbours with regard to the episode and take Crl. A. No. 533-SB of 2000 --18- effective steps to save the life of the victim. Firstly the aforesaid observation is not the ratio laid down by this Court in that case. The observation made by this Court in the particular facts and circumstance of the aforesaid case does not become a binding precedent in as much as it does not amount a ratio laid down by this Court.

27. In view of the above, the verdict of the trial Court convicting the first accused for offence under Section 304-B of the Indian Penal Code cannot be upset by this court. As it is found that no case has been made out against the second accused, the conviction of second accused under Section 304- B of the Indian Penal Code is set aside.

28. In the result confirming the judgment of the trial Court convicting the first accused for offence under Section 304-B of the Indian Penal Code and sentencing him thereunder, the judgment of conviction recorded as against the second accused for offence under Section 304-B of the Indian Penal Code and the sentence imposed thereunder stand set aside. The bail bond if any executed by the second accused shall stand cancelled. The appeal is allowed in part. The Chief Judicial Magistrate shall take necessary steps in accordance with the provisions of law, to comply with the Crl. A. No. 533-SB of 2000 --19- judgment, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure and compliance report be sent forthwith.

16.12.2010 dinesh ( M. Jeyapaul ) Judge Whether to be referred to the Reporters or not? ( Yes/No )