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2003 DIGILAW 1425 (PNJ)

Balwinder Singh v. State of Punjab

2003-10-15

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Balwinder Singh son of Harnam Singh, the appellant-herein stands convicted by the impugned judgment dated 10.7.1991 of learned Additional Sessions Judge, Amritsar under Section 304-B Indian Penal Code and has been sentenced to undergo RI for 7 years and to pay a fine of Rs. 500/-, in default of payment of which to further suffer RI for three months. However, he was acquitted of the offence under Section 302 Indian Penal Code. 2. Balwinder Kaur is the deceased in this case. She was married to the appellant about five years before her death. Two daughters were born out of this wed lock. At the time of their marriage and even at the time of occurrence, the appellant was serving in the Army. She died an unnatural death on the night intervening 30/31st of January, 1987 by hanging herself. 3. The present case was registered on the statement (Exhibit PG) of Harnam Singh (PW-2), father of the appellant, made to ASI Joginder Singh (PW-11) on February 1, 1987 to the effect that his son (the appellant), Balwinder Kaur (deceased) and their children had slept in the house; that in the morning he was asked by his son to bring some medicine as Balwinder Kaur was not feeling well; that he had gone to bring some medicine and when he was coming back, the appellant told him his wife was seriously ill, for whom he was going to bring some doctor as she was to be taken to the hospital; that then he came to the baithak of the appellant and saw Balwinder Kaur dead; that there was a rope around her neck. 4. On these allegations, a case under Section 302 Indian Penal Code was registered. After completion of investigation the challan against the appellant was presented. Initially the charge against him was also framed under Section 302 Indian Penal Code. Certain prosecution witnesses had also been examined when an application was moved on behalf of the prosecution for amendment of the charge with a prayer that in the alternative a charge under Section 304-B Indian Penal Code be also framed. The said application was allowed and the learned trial Court on February 1, 1990 charged the present appellant under Section 304-B Indian Penal Code in the alternative alongwith the main charge under Section 302 Indian Penal Code, already framed against him. The said application was allowed and the learned trial Court on February 1, 1990 charged the present appellant under Section 304-B Indian Penal Code in the alternative alongwith the main charge under Section 302 Indian Penal Code, already framed against him. However, after framing of the amended charge, the appellant did not further cross-examine the witnesses of the prosecution, who had already been produced. 5. In support of its case, the prosecution examined as many as 11 witnesses viz. Dr. Karanjit Singh (PW-1), Harnam Singh, (PW-2), Nindro (PW-3), Kundan Singh (PW-4), Gurdial Singh (PW5), Joga Singh (PW-6), Head Constable Bachittar Singh (PW-7), Gurdial Singh, Retired Tehsildar (PW-8), Buta Singh, whose statement was tendered into evidence as PW-9, Ajaib Singh (PW-10), ASI Joginder Singh (PW-11). 6. In his statement recorded in terms of Section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded innocence. 7. In support of his defence, the appellant examined Inder Singh (DW-1). 8. The learned trial Court after appreciating the entire evidence has acquitted the appellant of the charge under Section 302 Indian Penal Code but instead convicted and sentenced him under Section 304-B Indian Penal Code. Aggrieved by the aforesaid judgment of conviction and sentence, the appellant has preferred the present appeal. 9. I have heard Mr. Bipan Ghai, learned counsel for the appellant and Mrs. B.K. Mann, learned Senior Deputy Advocate General representing the State of Punjab. With their assistance I have gone through the entire record. 10. Learned counsel for the appellant has vehemently argued that even if the prosecution story is taken to be true, there is no evidence to prove that Balwinder Kaur was subjected to cruelty or harassment by the appellant in connection with any demand of dowry soon before her death. Developing his arguments, he submitted that from the very beginning, the case of the prosecution was of Section 302 Indian Penal Code and at the fag end of the trial, when even two main witnesses had already been examined, an application was moved for framing alternative charger under Section 304-B Indian Penal Code. Developing his arguments, he submitted that from the very beginning, the case of the prosecution was of Section 302 Indian Penal Code and at the fag end of the trial, when even two main witnesses had already been examined, an application was moved for framing alternative charger under Section 304-B Indian Penal Code. According to the learned counsel, even from the statements of the main witnesses of the prosecution, the basic ingredient bringing the case within the ambit of dowry-death is not proved as they have been confronted with their previous statements on all the material aspects so far as evidence on demand of dowry soon before the death is concerned. In this regard, the learned counsel has drawn my attention to the statements of Kundan Singh (PW-4), the father of the deceased and Joga Singh (PW-6), brother of Kundan Singh. Mr. Ghai thus contends that the conviction of the appellant under Section 304-B Indian Penal Code as recorded, is bad in the eyes of law. 11. In the same breath, learned counsel for the appellant contends that at the most the evidence led by the prosecution, if taken to be true, would bring the case within the mischief of Section 498-A Indian Penal Code, although the same is not proved to the hilt as the evidence of cruelty is also lacking. 12. On the quantum of sentence, it is contended that the appellant has already served the sentence of a few days less than three years, as he remained in custody throughout the trial and his sentence was suspended by this Court after he had earned conviction. 13. On the other hand, rebutting the arguments advanced by learned counsel for the appellant, the learned State counsel submits that on the basis of the cogent evidence led by the prosecution, the charge under Section 304-B is proved to the hilt. She then submits that from the very beginning, the appellant had made a demand of scooter from the parents of Balwinder Kaur and this demand continued till she died an unnatural death. It is then contended that Kundan Singh and Joga Singh PWs have categorically stated that Balwinder Kaur was being compelled by the appellant to bring a scooter or cash and a threat was also extended to her that in case the demand is not fulfilled, she would be killed. It is then contended that Kundan Singh and Joga Singh PWs have categorically stated that Balwinder Kaur was being compelled by the appellant to bring a scooter or cash and a threat was also extended to her that in case the demand is not fulfilled, she would be killed. The appellant thus has no escape from the charge proved against him and as such the conviction under Section 304-B deserves to be maintained. 14. After hearing the rival contentions of both sides, I am of the view that the prosecution has not been able to bring home the guilt to the appellant even under Section 304-B Indian Penal Code but at the same time, there is cogent evidence on record to bring the case within the four corners of Section 498-A Indian Penal Code. Though no charge was framed under Section 498-A Indian Penal Code, yet this would not be taken as a technical flaw for holding him guilty because Section 498-A is a lesser offence in nature. 15. The case of the prosecution hinges on the statements of Kundan Singh (PW-4) and Joga Singh (PW-6), father and uncle of the deceased respectively. At the cost of repetition, it may be mentioned that the case was registered at the instance of father of the appellant and thereafter the statements of these two witnesses were recorded by the prosecution agency under Section 161 Criminal Procedure Code Undisputedly, at the time of marriage as also at the time of occurrence, the appellant was in Army. It has also come in evidence that two daughters were born out of this wed-lock, who are presently staying with the appellant. According to Kundan Singh-PW, the appellant was married to the deceased about five years prior to the occurrence; that the relations between the wife and husband were strained as the appellant was demanding a scooter or cash from her; that three months before the occurrence, the matter was got compromised with the intervention of certain persons. In his cross- examination, it has been categorically stated by this witness that at the time of marriage, the dowry articles were displayed and a scooter was demanded. He was confronted with his previous statement on this material aspect. In his cross- examination, it has been categorically stated by this witness that at the time of marriage, the dowry articles were displayed and a scooter was demanded. He was confronted with his previous statement on this material aspect. He was also confronted with his previous statement to the effect that his daughter was telling him about the demands of scooter or cash made by the appellant and in case the said demand is not met, she would be killed (which fact was not mentioned in the previous statement). With regard to evidence of demand of dowry articles, this witness was also confronted with his previous statement. For reference, the relevant portion from his statement (as PW-4) is reproduced below :- "I had stated to the police that Dhiro had been telling me about the demand of scooter or cash made by the accused and that in case his demand was not fulfilled, he would kill her." (Confronted with his statement mark C, where it is not so recorded). 16. Evidence of Joga Singh (PW-6) also assumes great significance in this context. In his examination-in-chief, this witness states that the root cause was that Dhiro (since deceased) was not a fair complexioned and secondly the appellant was making demand of valuable article as scooter besides cash. The relevant portion from the examination-in-chief of this witness is reproduced as under :- "The root cause was that Dhiro was not of fair complexion. Secondly, the accused kept on making demands of valuable articles such as Scooter besides cash." 17. This witness has also been confronted with his previous statement on material aspect regarding demand of valuable articles i.e. scooter and cash. According to him, the demand of scooter persisted till the last date when Dhiro died an unnatural death. He has stated that on January 30, when he reached the house of the appellant at 5-00 PM, he saw that the present appellant and Dhiro were quarrelling with each other and the appellant was saying that in case the demand is not fulfilled or the scooter or cash is not brought by her, he would not allow her to live in his house, whereas this fact does not find mentioned in his previous statement. The relevant portion of his deposition before the Court is reproduced as under :- "I had also stated to the police that when I reached the house of the accused at that the accused and Dhiro were quarrelling with each other and Balwinder Singh accused was saying that in case she failed to fulfil the demand of scooter and cash, he will not keep her in matrimonial home". Attention of the witness is drawn to mark D, where it is not so recorded. However, at portion B to B1, it is simply recorded that when he reached there, he saw that Balwinder Singh and Balwinder Kaur alias Dhiro were quarrelling with each other; he intervened and reprimanded them." 18. From the aforesaid evidence, it can be safely said that the star witnesses of the prosecution have been confronted almost on all the material aspects and the evidence is lacking to prove that soon after (before ?) her death the deceased was subjected to cruelty or harassment by her husband in connection with the demand of dowry. Once the evidence on this basic ingredient is lacking, it would not be safe to hold the appellant guilty under Section 304-B Indian Penal Code. 19. However, the evidence led by the prosecution, if seen collectively, is enough to hold him guilty under Section 498-A Indian Penal Code. He is, thus convicted for the offence punishable under Section 498-A Indian Penal Code. 20. So far as quantum of sentence is concerned, as stated above, the appellant has already undergone about one month less than three years, as he remained in custody throughout the trial. It has also been brought to my notice that the two minor daughters, left by the deceased are being brought up by the appellant. 21. Taking into consideration all the facts and circumstances of the case, I am of the view that the ends of justice would be adequately met if the appellant is sentenced to the period already undergone by him. It is ordered accordingly. 22. Consequently, the appeal stands partly allowed. The conviction of the appellant under Section 304-B Indian Penal Code is hereby set-aside and instead he stands convicted and sentenced under Section 498-A Indian Penal Code, as already indicated above. Appeal partly allowed.