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2004 DIGILAW 625 (PNJ)

Balwinder Singh v. State of Punjab

2004-05-26

V.M.JAIN

body2004
JUDGMENT V.M. Jain, J. - This appeal has been filed by accused-appellant Balwinder Singh, challenging the judgment and order dated 11.9.1991, passed by the Sessions Judge, Hoshiarpur, convicting the accused-appellant under Sections 306 and 498-A Indian Penal Code and sentencing him to undergo RI for 7 years and to pay fine of Rs. 10,000/- and in default of payment of fine to undergo further RI for 2 years under Section 306 Indian Penal Code and also to undergo RI for 2 years under Section 498-A Indian Penal Code and directing both the sentences to run concurrently and further directing that the entire amount of fine, if realised, shall be paid to the parents of the deceased. 2. The facts in brief are that on 19.3.1990, at 7. 30 P.M., ASI Bakshish Singh recorded statement Ex. P.K. of Gulzar Singh, PW, on the basis of which formal FIR Ex. PD under Sections 306/34 Indian Penal Code was registered in P.S. Tanda on the same day i.e. on 19.3.1990 at 8.30 P.M. In the said statement it was stated by Gulzar Singh P.W. that about two years back his daughter Balwinder Kaur was married to accused Balwinder Singh, who was residing in Germany and sufficient dowry was given at the time of marriage. It was alleged that after 15-20 days of marriage he had come to know that his son-in-law had already married with a German girl and a couple photo of his son-in-law Balwinder Singh and the said German lady was found by his daughter concealed in the attache case. It was alleged that about 5-6 months back his son-in-law Balwinder Singh had come from Germany for about 20-25 days and he had given beating to his daughter Balwinder Kaur and he used to tell her that she should contract second marriage elsewhere and this fact was told to him by his daughter when she came to his village. It was alleged that his son-in-law Balwinder Singh had come to their house and he had convened that Panchayat and his son-in-law had asked his daughter Balwinder Kaur to accompany him but she was not agreeable but they made her understand and sent her to the house of her in laws. It was alleged that his son-in-law Balwinder Singh had come to their house and he had convened that Panchayat and his son-in-law had asked his daughter Balwinder Kaur to accompany him but she was not agreeable but they made her understand and sent her to the house of her in laws. It was alleged that after completion of his leave his son-in-law Balwinder Singh went back to Germany and about one week back his son-in-law Balwinder Singh had again came back to the village from Germany. it was alleged that on 17.3.1990, in the evening his son-in-law and daughter Balwinder Kaur came to their village and stayed with them at his house and went back at noon time on 18.3.1990. It was alleged that at that time his daughter had told him that her husband and his mother did not like her. It was alleged that on that day i.e. on 19.3.1990 at 3 P.M. Ashok came to their house in their village and said that Balwinder Kaur will ill whereupon he along with his wife and sister went to the village of the accused and he found his daughter Balwinder Kaur lying dead on the cot and there was no visible mark of injury on her body. It was alleged that his daughter Balwinder Kaur had taken some poisonous substance due to the harassment by his son-in-law, Balwinder Singh and his mother Parsin Kaur or they had killed her. It was alleged that after leaving his wife and sister near the dead body he was coming to report the matter to the police when the police met him on the way. The case was investigated by ASI Bakshish Singh. He carried out inquest proceedings and sent the dead body for post mortem examination. He also prepared the rough site plan. He also took the photograph Ex. P-1 produced before him by Gurmeet Kaur, into possession vide recovery memo. Both the accused namely Balwinder Singh and Parsin Kaur were arrested on 27.3.1990. After completion of investigation, challan was submitted in the court. 3. Both the accused were charged under Sections 498-A and 306 Indian Penal Code, to which charges the accused pleaded not guilty and claimed to be tried. Prosecution produced its evidence. Both the accused namely Balwinder Singh and Parsin Kaur were arrested on 27.3.1990. After completion of investigation, challan was submitted in the court. 3. Both the accused were charged under Sections 498-A and 306 Indian Penal Code, to which charges the accused pleaded not guilty and claimed to be tried. Prosecution produced its evidence. Thereafter the statements of the accused under Section 313 Criminal Procedure Code, were recorded in which they denied the prosecution allegations against them and stated that they were innocent and had been falsely implicated in this case. Accused Balwinder Singh further stated that they had been treating the deceased with love and affection and he had been sending cash to the deceased and that she used to tell him that she had passed on the money to her father. 4. Learned Sessions Judge, after hearing both sides and perusing the record, acquitted accused Parsin Kaur but convicted accused Balwinder Singh under Sections 306 and 498-A Indian Penal Code and also sentenced him, as referred to above, vide judgment and order dated 11.9.1991. Aggrieved against the same, Balwinder Singh filed the present appeal in this Court. 5. I have heard the learned counsel for the parties and have gone through the record carefully. 6. Learned counsel for the accused-appellant submitted before me that there is not even an iota of evidence to show that the accused appellant had maltreated the deceased or that he had abetted the commission of suicide by the deceased. It has been submitted that no case for convicting the accused appellant under Sections 306 and 498-A Indian Penal Code was made out. It was submitted that it was only on the basis of the alleged photograph Ex. P-1 that the deceased had committed suicide but it could not be said that the accused appellant had abetted the suicide committed by the deceased. It was further submitted that presumption under Section 113-A of the Indian Evidence Act would not apply to the facts of the present case since nothing has come on the record to show that the accused appellant had subjected her to cruelty. 7. There is considerable force in these submissions of the learned counsel for the accused-appellant. It was further submitted that presumption under Section 113-A of the Indian Evidence Act would not apply to the facts of the present case since nothing has come on the record to show that the accused appellant had subjected her to cruelty. 7. There is considerable force in these submissions of the learned counsel for the accused-appellant. Exhibit P-1 is the photograph showing that accused appellant Balwinder Singh and a German lady are sitting side by side on two chairs and accused Balwinder Singh is holding the right hand of the said lady. It has come in the statement of accused appellant Balwinder Singh under Section 313 Criminal Procedure Code that he had not concealed the photograph Ex. P-1 and that the lady in the photograph Ex. P-1 was his friend but not a steady friend of his and that they had been moving about various places. He stated that the photograph Exhibit P-1 along with other photographs was lying in his house and his father-in-law had taken away the same. In reply to a question that in the photograph Ex. P-1 he appeared to be putting a ring on her finger, he replied that he had presented her a "chhalla" in 1981. Except the photograph Ex. P-1, there is nothing else on the record to show that the accused appellant Balwinder Singh was previously married to a German girl or that he had ever subjected the deceased to cruelty or he had abetted the commission of suicide by the deceased. PW-3 Gulzar Singh, complainant, father of the deceased, only stated that after the marriage of the deceased with the accused he had come to know that the accused Balwinder Singh had a spouse living in Germany and that he was already married, as told to him by his daughter Balwinder Kaur deceased and that she had found the photograph Ex. P-1 lying concealed in his suitcase and that when confronted by her he had admitted that he had already contracted marriage with the lady shown in the photograph. He stated that in the photograph Ex. P-1 the male figure was that of accused Balwinder Singh and he was holding the hand of German lady. P-1 lying concealed in his suitcase and that when confronted by her he had admitted that he had already contracted marriage with the lady shown in the photograph. He stated that in the photograph Ex. P-1 the male figure was that of accused Balwinder Singh and he was holding the hand of German lady. He further deposed that once when accused Balwinder Singh returned from Germany, Balwinder Kaur, deceased was in his village and a week thereafter the deceased came to them and told him that she was given beating by accused Balwinder Singh and he had told her to marry somebody else. He further deposed that subsequently when accused Balwinder Singh came to his house he had convened the Panchayat and in the presence of the Panchayat he had clearly stated that he will not repeat this mistake. He further stated that subsequently the deceased had told him that she was not liked by her husband and was apprehending danger from him. The prosecution also examined PW-4 Piar Kaur, sister of PW-3 Gulzar Singh and also PW-5 Sukhdev Singh a member of the Panchayat. Both these witnesses also deposed that the deceased had told them about the beating and the fact that the accused had begged to be accused (execused ?). From the entire reading of the statements of PW-3 Gulzar Singh, PW-4 Pair Kaur and PW-5 Sukhdev Singh, in my opinion, it could not be said that the accused appellant Balwinder Singh had abetted the commission of suicide by Smt. Balwinder Kaur deceased. As referred to above, the basis of the dispute between the husband and wife was the photograph Ex. P-1. On the basis of the photograph Ex. P-1, it could not be said that accused-appellant Balwinder Singh was already married with a German lady. If Balwinder Kaur deceased got suspicious on the basis of photograph and committed suicide, in my opinion, accused appellant Balwinder Singh could not be blamed for the same. So far as the beating allegedly given by accused appellant Balwinder Singh to Smt. Balwinder Kaur deceased are concerned, in my opinion, there is no sufficient evidence on the record to show that the accused appellant Balwinder Singh had ever given beating to the deceased. So far as the beating allegedly given by accused appellant Balwinder Singh to Smt. Balwinder Kaur deceased are concerned, in my opinion, there is no sufficient evidence on the record to show that the accused appellant Balwinder Singh had ever given beating to the deceased. General and vague allegations made by the witnesses in this regard, in my opinion, would not be enough to hold that the accused appellant Balwinder Singh had given beating to Smt. Balwinder Kaur deceased. With regard to accused appellant Balwinder Singh having begged before the Panchayat to be excused is concerned, in my opinion, no reliance whatsoever, could be placed on the testimony of various witnesses in this regard especially when the allegations are general and vague in nature. This is especially so when PW-3 Gulzar Singh deposed that his daughter Smt. Balwinder Kaur had opened a joint account with him in New Bank of India, Jalandhar and that he was not aware of any bank draft credited to the said joint account on being received from Germany. He stated that he could not contradict the suggestion that accused Balwinder Singh had been sending such bank drafts in the name of Balwinder Kaur and Gulzar Singh and that such bank drafts were credited to the aforesaid bank account in New Bank of India, Jalandhar. He also stated that he was not aware whether any bank account was opened by Balwinder Kaur with Punjab National Bank, Tanda and he did not know whether accused Balwinder Singh had been sending large amount of money for Balwinder Kaur or that she had withdrawn such money from the bank accounts to spend on herself. Taking into consideration the overall view of the matter, in my opinion, it could not be said that any offence under Section 306 Indian Penal Code or 498-A Indian Penal Code is made out against the accused on the facts and circumstances of the present case. I am further of the opinion that provisions of Section 113-A of the Indian Evidence Act would not apply to the facts of the present case since the prosecution had miserably failed to prove that the accused appellant had subjected the deceased to cruelty and as such it could not be presumed that the accused appellant had abetted the suicide committed by the deceased. I am further of the opinion that the learned Sessions Judge erred in law in convicting and sentencing the accused appellant for the offence under Sections 306 and 498-A Indian Penal Code. 8. For the reasons recorded above, present appeal is allowed, the judgment and order dated 11.9.1991 passed by the learned Sessions Judge are set aside and the accused appellant is acquitted of the charges framed against him. Appeal allowed.