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2003 DIGILAW 1549 (PNJ)

Surinder Kumar v. State of Punjab

2003-11-12

V.M.JAIN

body2003
JUDGMENT V.M. Jain, J. - This appeal has been filed by accused-appellant Surinder Kumar against the judgment and order dated 27.1.1991 passed by the Additional Sessions Judge, Amritsar acquitting the accused-appellant under Section 302 Indian Penal Code but convicting him under Sections 304-B and 498 Indian Penal Code and sentencing him to undergo RI for seven years and to pay fine of Rs. 1000/- and in default of payment of fine to undergo further RI for three months under Section 304-B Indian Penal Code and also sentencing him to undergo RI for two years and fine of Rs. 100/- and in default of payment of fine to undergo further RI for two months under Section 498-A Indian Penal Code and directing both the sentences to run concurrently. 2. The FIR in this case under Sections 306/201 Indian Penal Code was registered in Police Station E Division, District Amritsar on 11.6.1988 at the instance of Kharaiti Lal PW. Kharaiti Lal PW had produced application Exhibit PF dated 5.6.1988 before the SP, alleging therein that he had married his daughter Smt. Manju with accused Surinder Kumar on 2.5.1982 and after the marriage his daughter Manju, whose name was changed by her in-laws as Kanchan, started residing at the house of her in-laws. It was alleged that after 3-4 months her in-laws told her to bring Rs. 5000/- so that some work could be started whereupon his wife after selling her ornaments gave Rs. 5000/- so that her husband may start work. At that time his daughter had told him that her husband Surinder after he starts earning would return the said money but accused Surinder Kumar did not return the money. It was alleged that when his daughter Manju alias Kanchan was to deliver a child, six months prior thereto, she was sent to her parents house saying that if the child was to be delivered at the house of her in-laws then she should bring Rs. 2000/- from her parents and since they could not arrange the said money, the child was delivered at their place (complainants place). It was alleged that after the birth of a child they brought her after many months to Batala. 2000/- from her parents and since they could not arrange the said money, the child was delivered at their place (complainants place). It was alleged that after the birth of a child they brought her after many months to Batala. It was alleged that after a month thereof, the accused side started giving her beatings and after a month they kept the child with them and turned out Manju alias Kanchan from their house after giving her beatings and the neighbours brought her to the complaints house and thereafter she stayed with them for three months and since no-one from the accused side came to take her, his wife Raj Rani took Manju/Kanchan to the house of her in-laws but they refused to keep her with them. It was alleged that thereafter a Panchayat was held and when his wife went to leave her to the house of her in-laws, the family members of her in-laws gave a push to Manju/Kanchan and the neighbours got her admitted in the hospital and the matter was reported to the Police. It was alleged that thereafter the matter was compromised with the intervention of neighbours, and accused Surinder Kumar was got released from custody and the accused brought her to their house. It was alleged that thereafter the accused continued maltreating Manju/Kanchan. It was alleged that thereafter when the neighbours threatened to take action against them, accused Surinder Kumar brought her to Amritsar and now they were residing at Amritsar. It was alleged that even after coming to Amritsar, he continued to maltreating Manju/Kanchan and he used to giving her beatings and the persons residing in the Mohalla were in the know of it. It was further alleged that thereafter they came to know from time to time that the accused used to give her beatings but out of fear and being poor persons they could not bring her to their house It was alleged that on 2.6.1988, he received two telegrams at about 4.00 p.m. In one of the telegrams, it was mentioned that her condition was serious and in the other telegram, it was mentioned that she had expired, whereupon they immediately left for Amritsar and on 3.6.1988 they reached there they came to know that Manju/Kanchan was killed by burning and before their arrival, she was cremated. It was alleged that even Buas of hers, who were residing at Jalandhar, were also not informed about her death. It was alleged that on inquiry form the Mohalla they came to know that she was burnt to death and thereafter she was taken to a doctor, namely, Bhimsen. Doctor Bhimsen had refused saying that it was a police case and she should be taken to the Govt. hospital so that she may be saved. But instead of taking her to the hospital, they took her to Dr. Prem Seth where she expired at night. It was alleged that they also came to know that at the time of cremation accused was asked not to cremate the dead body till her parents arrive but still her dead body was cremated. It was alleged that the accused had killed her by burning and had cremated her and that action be taken against the accused. This application Exhibit PF is bearing the endorsement Exhibit PF/2 of SP City dated 8.6.1988 vide which the said application Exhibit PF was marked to DSP City-I to verify the facts on the spot immediately and to take necessary action as warranted by facts and law. Thereafter on 11.6.1988 FIR under Sections 306/201 Indian Penal Code was registered in Police Station-E Division, on the basis of the aforesaid complaint Exhibit PF moved by Kharaiti Lal before the SP, Amritsar. 3. The case was investigated by SI Onkar Nath on 12.6.1988. He took into possession compromise Exhibit PH produced by Kharaiti Lal vide recovery memo Exhibit PE. He also took into possession letter Exhibit PG produced by Kharaiti Lal vide same recovery memo Exhibit PE. He also recorded statement of Kharaiti Lal PW. Thereafter, SI Onkar Nath visited the house of accused Surinder Kumar along with Kharaiti Lal complainant and after spot inspection prepared the rough site plan Exhibit PK. He searched for the accused on 13.6.1988. Kharaiti Lal PW produced two telegrams Exhibit PC and Exhibit PD before him and he took the same into possession vide recovery memo Exhibit PJ. He again recorded the statement of Kharaiti Lal PW and other witnesses. On 15.6.1988 SI Onkar Nath arrested accused Surinder Kumar in this case. He searched for the accused on 13.6.1988. Kharaiti Lal PW produced two telegrams Exhibit PC and Exhibit PD before him and he took the same into possession vide recovery memo Exhibit PJ. He again recorded the statement of Kharaiti Lal PW and other witnesses. On 15.6.1988 SI Onkar Nath arrested accused Surinder Kumar in this case. He also recorded the statement of doctor Prem Seth who had produced before him photo copy of the file pertaining to the treatment of Kanchan and took the same into possession vide recovery memo Exhibit PL. After the completion of the investigation, challan was presented against accused Surinder Kumar. The accused was charged under Sections 498-A and 302 Indian Penal Code to which charges he pleaded not guilty and claimed tried. The prosecution produced evidence in support of its case. Thereafter the statement of the accused under Section 313 Criminal Procedure Code was recorded in which he denied the prosecution allegations against him and stated that he was innocent and had been falsely implicated in this case. In his defence, he examined DW1 Prem Nath and DW2 Smt. Raj Rani. The learned Additional Sessions Judge after hearing both sides and pursuing the record acquitted the accused under Section 302 Indian Penal Code and convicted and sentenced him as referred to above, vide judgment and order dated 27.7.1991. Aggrieved against the same, accused Surinder Kumar filed the present appeal in this Court. 4. I have heard the learned counsel for the parties and have gone through the record carefully. 5. The learned counsel appearing for the accused appellant submitted before me that no case under Section 304-B Indian Penal Code was made out against the accused- appellant on the basis of the evidence led by the prosecution and that the accused-appellant has been illegally convicted and sentenced for the offence under Section 304-B Indian Penal Code. It was submitted that there was no material on the record to show that at any time prior to the occurrence, accused-appellant had maltreated the deceased or had caused cruelty upon her on account of demand of dowry etc. which resulted in her un-natural death. It was submitted that there was no material on the record to show that at any time prior to the occurrence, accused-appellant had maltreated the deceased or had caused cruelty upon her on account of demand of dowry etc. which resulted in her un-natural death. It was submitted that after the accused shifted to Amritsar (from Batala) along with the deceased and lived there at Amritsar, there is no material on the record to show that the accused had ever maltreated the deceased or had caused cruelty upon her on account of demand of dowry etc. and that being so the present case would not be covered under Section 304-B Indian Penal Code. 6. There is considerable force in the these submissions of the learned counsel for the accused-appellant. PW5 Kharaiti Lal is the father of the deceased and had submitted the application Exhibit PF before the Police on the basis of which formal FIR Exhibit PF/1 under Sections 306/201 Indian Penal Code was registered in the Police Station. As per the case of the prosecution, the marriage of the deceased with the accused had taken place on 2.5.1982 whereas the present occurrence had taken place on 2.6.1988 i.e. six years and one months after the date of marriage. In the application Exhibit PF, which was submitted by PW5 Kharaiti Lal before SP City, Amritsar on 8.6.1988, it was only mentioned that after the accused shifted to Amritsar along with the deceased from Batala the accused still used to give beatings to the deceased and this fact that accused Surinder Kumar used to give beatings to her, he had come to know from the persons residing in the Mohalla. When PW5 Kharaiti Lal appeared in the witness box, he stated that even after coming to Amritsar, the accused used to treat Manju with cruelty and there was no change in his behaviour and he stated that during their visit to the house of accused they came to know that the accused had been maltreating Manju. He further stated that two months prior to the occurrence, when he came to Amritsar and visited the accused and Manju, at that time Manju informed him that the accused was still demanding money from her, whereupon he told him that he was not in a position to fulfill his demand. He further stated that two months prior to the occurrence, when he came to Amritsar and visited the accused and Manju, at that time Manju informed him that the accused was still demanding money from her, whereupon he told him that he was not in a position to fulfill his demand. It was alleged that thereafter he contacted Parshotam Lal, mediator that he should ask the accused not to ill-treat Manju and not to make demand for money from them. He stated that on his return to Mathura he narrated the incident to his wife. During cross-examination on behalf of the accused, he admitted that in the application Exhibit PF he had not specifically mentioned that during his visit to Amritsar, Kanchan had informed them about the cruel treatment and the beatings given to her by her husband. He also admitted that in the application Exhibit PF, it was not mentioned that three months prior to the occurrence when he had visited Amritsar and had gone to the house of the accused, Manju had informed him that the accused was still demanding money and he told him that he was not in a position to fulfill his demands and thereafter he had gone to the house of Parshotam Lal and had asked him to talk to the accused so that in future he may not demand money from them. He stated that it was on 4.6.1988 when he had gone to the Mohalla of the accused (at Amritsar). Similar is the statement of PW7-Smt. Raj Rani wife of Kharaiti Lal PW. 7. From the statement of PW5 Kharaiti Lal and PW7 Smt. Raj Rani (parents of the deceased), it could not be said that after the accused had shifted from Batala to Amritsar along with the deceased, the accused had maltreated the deceased or had given her beating on account of demand of dowry etc. There is no evidence available on the record to prove this fact. In the complaint Exhibit PF, there is no mention that after Smt. Manju had shifted from Batala to Amritsar with the accused, Kharaiti Lal and/or his wife Smt. Raj Rani had ever met her either at Amritsar or at Mathura or at Batala. There is no evidence available on the record to prove this fact. In the complaint Exhibit PF, there is no mention that after Smt. Manju had shifted from Batala to Amritsar with the accused, Kharaiti Lal and/or his wife Smt. Raj Rani had ever met her either at Amritsar or at Mathura or at Batala. Thus, the testimony of these witnesses that even after shifting to Amritsar, the accused used to maltreat her and used to give her beatings and used to raise demand for money, in my opinion, cannot be accepted. If these witnesses are placing reliance on the information supplied to them by the neighbours, it would be a hearsay evidence as none of the neighbours, who may have informed them in this regard, had been examined. With regard to the testimony of PW5 Kharaiti Lal that two-three months prior to the occurrence he had come to Amritsar and had gone to the house of the accused and at that time Manju had told him about the ill-treatment and beatings at the hands of the accused on account of demand of dowry, suffice it to say that no reliance, whatsoever, could be placed on the testimony of PW5 Kharaiti Lal in this regard, especially when this fact is not mentioned in the application Exhibit PF and is an improvement from the stand taken in the complaint Exhibit PF. On the other hand, in the complaint Exhibit PF, it had been mentioned that it was from the Mohallawalas that he (Kharaiti Lal) had come to know that accused Surinder Kumar used to give beatings to the deceased and used to maltreat her and that from time to time they had been coming to know about it. This would clearly show that Kharaiti Lal PW had not met his daughter Smt. Manju at any point of time after the accused had shifted from Batala to Amritsar along with her and that he had no personal knowledge with regard to the alleged maltreatment/beatings of the deceased at the hands of the accused in connection with the dowry. The information supplied in the complaint Exhibit PF was based on hear say evidence. The information supplied in the complaint Exhibit PF was based on hear say evidence. However, Kharaiti Lal PW made improvement in his statement while appearing in the witness box as PW5 and had stated that about two-three months prior to the occurrence he had come to Amritsar and had met the deceased who had told him about the maltreatment/beatings as referred to above. This part of the statement of Kharaiti Lal PW cannot be accepted and on the basis of this statement made by Kharaiti Lal, accused-appellant Surinder Kumar could not be held guilty for the offence under Section 304-B Indian Penal Code. Similar would be the position with regard to the statement of PW7 Smt. Raj Rani wife of Kharaiti Lal. So far as PW6 Parshotam Lal is concerned, he did not support Kharaiti Lal PW with regard to Kharaiti Lal meeting him after the accused had shifted to Amritsar, and had told him about the maltreatment give to Manju by the accused. PW6 Parshotam Lal had categorically stated that after the accused along with Manju had come to Amritsar, he did not remember if Kharaiti Lal and his wife had visited him. As referred to above, the marriage had taken place on 2.5.1982, the demand of Rs. 5000/- was only made by the accused to do some work and the assurance given was that the said amount shall be returned. The demand for Rs. 2000/- was for the expenses that may be incurred on the delivery. The case of the prosecution is that either the parents should get the child delivered at their house or if they want the child to be delivered at the house of the accused, her parents should give Rs. 2000/- towards expenses. Such demands, in my opinion, could not be said to be any demand made in connection with dowry so as to bring the case under Section 304-B Indian Penal Code. In any case, these demands had taken place many years prior to the present occurrence. Even the earlier occurrence in which Smt. Manju had received injuries allegedly at the hands of the accused had taken place many years prior to the present occurrence as admitted by the complainant himself. Subsequent thereto, the accused had shifted from Batala to Amritsar along with deceased and in this manner, he had separated from the house of his parents. Even the earlier occurrence in which Smt. Manju had received injuries allegedly at the hands of the accused had taken place many years prior to the present occurrence as admitted by the complainant himself. Subsequent thereto, the accused had shifted from Batala to Amritsar along with deceased and in this manner, he had separated from the house of his parents. There is nothing to indicate that after the accused had shifted to Amritsar, he had ever maltreated the deceased in connection with the dowry etc. as alleged. In J.T. 2003(7) SC 392 Kaliyaperumal and Anr. v. State of Tamil Nadu it was held by the Honble Supreme Court that the expression "soon before" was very relevant where Section 113-B of the Evidence Act and Section 304-B Indian Penal Code were pressed into service. It was held that the prosecution was obliged to show that soon before the occurrence there was cruelty and harassment and only in that case the presumption would operate. It was held that evidence in that regard had to be led by the prosecution. It was further held that "soon before" was 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 and it would be hazardous to indicate any fixed period. It was held that expression "soon before her death" used in substantive Section 304-B Indian Penal Code and Section 113-B of the Evidence Act was with the idea of proximity test and no definite period had been indicated and the expression "soon before" had not been defined. It was held that the expression "soon before" would normally imply that the interval should not be much between the concerned cruelty or harassment and the death in question and there must be existence of a proximate and live-link between the effect of cruelty based on dowry demand and concerned death. 8. In view of the law laid down by the Honble Supreme Court in the above mentioned authority, in my opinion, it could not be said that there was any proximity between the alleged cruelty or harassment of the deceased by the accused and her death. 8. In view of the law laid down by the Honble Supreme Court in the above mentioned authority, in my opinion, it could not be said that there was any proximity between the alleged cruelty or harassment of the deceased by the accused and her death. Nothing has come on the record to show that the accused had ever caused cruelty or harassed the deceased after he had shifted from Batala to Amritsar much prior to the present occurrence. The evidence led by the prosecution in this regard in the from of the statements of PW5 Kharaiti Lal and PW7 Smt. Raj Rani cannot be believed in view of the reasons already given above. The information supplied by the Mohallawalas would be only a hearsay evidence and could not be made the basis for holding the accused guilty in this case in the absence of any proof regarding the alleged cruelty or harassment of the deceased at the hands of the accused on account of demand of dowry etc. 9. For the reasons recorded above, in my opinion, the learned Trial Court had erred in law in holding the accused guilty in this case for the offence under Section 304-B Indian Penal Code. I am further of the opinion that the accused-appellant is entitled to be acquitted of the charge under Section 304-B Indian Penal Code. 10. Coming to the offence under Section 498-A Indian Penal Code, in my opinion, there is sufficient material available on the record to hold that the accused had caused cruelty to the deceased and for that reason accused-appellant is liable to be convicted for the offence under Section 498-A Indian Penal Code. In fact, the learned counsel for the accused-appellant could not point out any material on the record to show that the conviction of the accused appellant for the offence under Section 498-A Indian Penal Code was not according to law or was not based on evidence led by the prosecution in this regard. The statements of PW5 Kharaiti Lal, PW6 Smt. Raj Rani, in my opinion, would clearly prove that the accused had subject Smt. Manju alias Kanchan to cruelty as defined under Section 498-Indian Penal Code and as such, he was liable to be convicted for the offence under Section 498-A Indian Penal Code. The statements of PW5 Kharaiti Lal, PW6 Smt. Raj Rani, in my opinion, would clearly prove that the accused had subject Smt. Manju alias Kanchan to cruelty as defined under Section 498-Indian Penal Code and as such, he was liable to be convicted for the offence under Section 498-A Indian Penal Code. Even the letter Exhibit PG and the compromise Exhibit PH would prove that the accused had treated the deceased with cruelty and as such the offence under Section 498-A Indian Penal Code was made out against him. Accordingly, I uphold the conviction of the accused-appellant under Section 498-A Indian Penal Code. 11. Coming on the question of sentence under Section 498-A Indian Penal Code, as referred to above accused-appellant was arrested on 15.6.1988 as per statement of PW12 SI Onkar Nath SHO. He remained in custody since then till he was released on bail in pursuance of the order dated 16.5.1989 passed by this Court, in Criminal Misc. No. 3526-M of 1989. In this manner, accused-appellant Surinder Kumar remained in custody for more than 11 months i.e. from 15.6.1988 to 16.5.1989. Thereafter, accused-appellant was convicted and sentenced vide judgment and order dated 27.7.1991 and was taken into custody and was order to be released on bail by this Court vide order dated 7.9.1991. In this manner, he remained in custody for about one year and half month (11 months + 1-1/2 months after his conviction). In this manner, in all he remained in custody for more thatn one year in this case. In my opinion, the ends of justice would be fully met in case the substantive sentence awarded to the accused-appellant for the offence under Section 498-A Indian Penal Code, is reduced to the period already undergone by him, besides the sentence of fine of Rs. 100/- already imposed upon him by the Trial Court for the said offence under Section 498-A Indian Penal Code. 12. In view of the above, the present appeal is partly allowed. The conviction of the accused-appellant for the offence under Section 304-B Indian Penal Code is set aside, whereas the conviction of the accused-appellant for the offence under Section 498-A Indian Penal Code is upheld. Furthermore, the substantive sentence awarded to the accused-appellant for the offence under Section 498-A Indian Penal Code is reduced to the period already undergone by him. However, the sentence of fine of Rs. Furthermore, the substantive sentence awarded to the accused-appellant for the offence under Section 498-A Indian Penal Code is reduced to the period already undergone by him. However, the sentence of fine of Rs. 100/- for the offence under Section 498-A Indian Penal Code is maintained. Appeal partly allowed.