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2008 DIGILAW 1718 (PNJ)

Mukhtiar Kaur v. State Of Punjab

2008-10-04

SHAM SUNDER

body2008
Judgment Sham Sunder, J. 1. This judgment shall dispose of Crl. Appeal No. 363-SB of 1992 filed by Mukhtiar Kaur, Surjit Singh and Karnail Singh, accused (now appellants), vide which they were convicted by the Court of Sessions Judge, Faridkot, for the offence punishable under Section 306 of the Indian Penal Code, and sentenced as under:- 1. Karnail Singh RI- 5 years Fine-5000/- In default RI, 6 months 2. Surjit Singh RI- 3 years Fine- 5000/- In default- RI, 6 months 3. Mukhtiar Kaur RI- 3 years Fine- 5000/- In default- RI, 6 months In default- RI, 6 months and Criminal Revision No. 698 of 1992, filed by Nachhatar Singh, complainant/revision-petitioner, for enhancement of the substantive sentence and awarding compensation. 2 The facts, in brief, are that Amarjit Kaur (now deceased) daughter of Sadhu Singh, was married to Karnail Singh, accused of village Golewala on 05.03.1983. Sadhu Singh gave dowry, in the marriage, to Karnail Singh, accused, as per his financial status. Karnail Singh, his mother Mukhtiar Kaur and father Surjit Singh, were not happy with the dowry brought by Amarjit Kaur, at the time of marriage. A few days after the marriage, they started maltreating her. 1-1/2 years after the marriage, Amarjit Kaur gave birth to a son. After the birth of a son to her, Karnail Singh, Mukhtiar Kaur and Surjit Singh, demanded customary gifts, given at the time of birth of a child, (shushak) from the parents of Amarjit Kaur. They gave the customary gifts (shushak) as per their financial status. The accused were, however, not satisfied with the quantum of the customary gifts, brought by Amarjit Kaur. Nachhatar Singh and Baljinder Singh, brothers of Amarjit Kaur, came to village Golewala and requested Karnail Singh, his father and mother that they should not maltreat Amarjit Kaur. Six months prior to 19.06.1989, Karnail Singhs elder brother, was married. His wife brought a lot of dowry, in the marriage. After the marriage of Karnail Singhs elder brother, the demands of Karnail Singh, his father, and mother assumed greater proportions, and they became harsh towards Amarjit Kaur and started treating her with extreme cruelty. They asked her to bring more dowry. Thereafter, Amarjit Kaur along with her child came to village Handiaya, in the house of her parents. After the marriage of Karnail Singhs elder brother, the demands of Karnail Singh, his father, and mother assumed greater proportions, and they became harsh towards Amarjit Kaur and started treating her with extreme cruelty. They asked her to bring more dowry. Thereafter, Amarjit Kaur along with her child came to village Handiaya, in the house of her parents. Thereafter, Sadhu Singh, his son Nachhatar Singh and Nachhatar Singhs brother- in-law Darshan Singh of Gulab-Garh and the husband of the sister of father of Nachhatar Singh (phuphar) namely Darshan Singh came to Golewala along with Amarj it Kaur and her child. They requested the accused that they should not maltreat her. Surjit Singh and Mukhtiar Kaur, demanded Colour TV, VCR and Refrigerator. They, in clear-cut terms, stated that, in case, these items were not provided, in the shape of dowry, then they should take back Amarjit Kaur, or she could go and die as they did not need her and would marry Karnail Singh again elsewhere. Nachhatar Singh and Sadhu Singh, agreed to give Colour TV, Refrigerator and VCR to the accused and left Amarjit Kaur, in her matrimonial home. 3. On 18.06.1989, Nachhatar Singh and his brother-in-law Darshan Singh came to village Golewala, to enquire about the welfare of Amarjit Kaur. They asked the accused about Amarjit Kaur and her child. The accused, did not give them any satisfactory reply. They felt that Amarjit Kaur and her child had been murdered by the accused. From village Golewala, they returned to village Handiaya, and narrated the entire episode, to the inmates of the house. They, then searched Amarjit Kaur, in their relations, but she was not available. 3-A. On 20.06.1989, Nachhatar Singh and his father Sadhu Singh came to Police Station, Sadar, Faridkot. Nachhatar Singh lodged FIR Ex.PJ. The Police, Nachhatar Singh and Sadhu Singh searched Amarjit Kaur and when they came just near the gate of the Police Station, the husband of the sister of the father of Nachhatar Singh, namely Darshan Singh met them and told that the dead body of Amarjit Kaur, had been found near the bridge of canal, in the area of village Machaki Mai Singh. They along with the Police then went to the spot. Dead body of Amarjit Kaur was lying on the bank of the canal. They along with the Police then went to the spot. Dead body of Amarjit Kaur was lying on the bank of the canal. By the side of the dead body, Balwinder Singh son of Sadhu Singh and Darshan Singh, brother- in-law of Nachhatar Singh, were found present. 3-B. Karnail Singh, was earlier engaged in village Handiaya to the daughter of Zora Singh. The marriage party came back from village Handiaya, without the bride, as some dispute had arisen there. Cloth was purchased from M/s Kaur Sain Jagan Nath of Barnala for the marriage of Amarjit Kaur. Other articles and ornaments were also purchased from various shops. Later on, the dead body of the child of Amarjit Kaur was also recovered, from the canal. 3-C. Post-mortem examination, on the dead body of Amarjit Kaur was performed by Dr. K.K. Aggarwal, Senior Lecturer, Department of Forensic Medicine, Guru Gobind Singh Medical College, Faridkot, on 20.06.1989 at 1.30 PM. In the opinion of the doctor, the cause of death was asphyxia as a result of drowning which was sufficient to cause death in the ordinary course of nature. The time that lapsed between the injuries and death, was within few minutes and between the death and post-mortem was within 48 to 72 hours. 3-D. On 22.06.1989, at about 9.00 AM, the doctor performed post-mortem examination on the dead body of Soni son of Karnail Singh, aged about 4-1/2 years. In the opinion of the doctor, the death of the child was due to aphsyxia, as a result of drowning which was sufficient to cause death, in the ordinary course of nature. The time that lapsed between the injuries and death was within few minutes and between the death and post-mortem was within 3 to 5 days. It was further opined by the doctor that drowning was ante-mortem in nature, in both the cases. The accused were arrested. The statements of the witnesses were recorded. Afterthe completion of investigation, the accused were challaned. 4. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 304-B of the IPC, was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. Afterthe completion of investigation, the accused were challaned. 4. On their appearance, in the Court, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Section 304-B of the IPC, was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. K. K. Aggarwal, Senior Lecturer, department of Forensic Medicine, GGS Medical College, Faridkot, (PW-1), Surjit Singh, Patwari, Halqa Machaki Mal Singh, (PW-2). Nachhatar Singh, (PW-3), Zora Singh, (PW-4), Bhim Singh, (PW-5), Tek Chand, (PW-6), Jaswant Singh, (PW-7), Darshan Singh, (PW-8), Gurcharan Singh, (PW-9), who was wrongly mentioned as PW-10, Harbans Lal, (PW-10), who was also wrongly mentioned as PW-11, Manohar Lal, (PW-11), who was wrongly mentioned as PW- 12, and Raghbir Singh, Inspector, (PW-12), who was wrongly mentioned as PW-13. Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. 6. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. It was stated by Mukhtiar Kaur that marriage of co-accused Karnail Singh, took place on 04.03.1982. She further stated that Karnail Singh was never engaged to the daughter of Zora Singh. It was further stated by Mukhtiar Kaur that Amarjit Kaur was of queer habits. She was stiff necked and was non-cooperative with other ladies of the house. It was further stated by her that Amarjit Kaur wanted to live separate from the parents of Karnail Singh, which he refused to do. Amarjit Kaur became frustrated and there arose tension in her mind. It was further stated by her that for that reason, she left the house, in their absence, along with the child. It was further stated by her, that they searched Amarjit Kaur and the child and informed the police also. They also sent information to Sadhu Singh and his son Nachhatar Singh i.e. the complainant. It was further stated by her that the members of the complainant family came there and they also searched along with them Amarjit Kaur and the child. It was further stated by her that, later on in connivance with the police, the instant case was planted against them. 7. It was further stated by her that the members of the complainant family came there and they also searched along with them Amarjit Kaur and the child. It was further stated by her that, later on in connivance with the police, the instant case was planted against them. 7. Surjit Singh and Karnail Singh, accused, in their statements took up the same pleas, as were taken up by Mukhtiar Kaur, accused, in her statement under Section 313 Cr.P.C. 8. In defence, the accused examined Baljit Singh, Record Keeper, Market Committee, Bhucho, DW-1, Iqbal Singh, Clerk, SDMs office, Muktsar, DW-2, Pritpal Singh, Clerk, Market Committee, Bhucho, DW-3, Gajja Nand, Ahlmad, Court of Additional Sessions Judge, Faridkot, DW-4, Tarsem Singh son of Hakem Singh, DW-5, and Karnail Singh, accused, himself appeared as his own witness as DW-6. He in his defence evidence, also tendered birth entry Ex.DA/1. Thereafter, they closed the defence evidence. 9. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court came to the conclusion that no. offence punishable under Section 304- B of the Indian Penal Code was made out against the accused. Ultimately, they were convicted and sentenced for the offence punishable under Section 306 of the Indian Penal Code, as stated hereinbefore. 10. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, and the revision petition were filed. 11. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 12. The Counsel for the appellants, at the very outset, submitted that no offence under Section 306 of the Indian Penal Code was constituted, from the facts circumstances and the evidence, produced by the prosecution. He further submitted that from the evidence, on record, it was proved that the parents of the deceased, promised that they would give Colour TV, Fridge, and VCR. He further submitted that when they promised to give the same, as allegedly demanded by the accused, there was no question of torturing the deceased by the accused, and, as such, it could not be said that they abetted the alleged commission of suicide by the deceased. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Abetment has been defined in Section 107 of the Indian Penal Code, which reads as under :- 707. Abetment of a thing. - A person abets the doing of a thing, who First. - Instigate any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an actor illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing." "Explanation 1. A person, who by willful misrepresentation or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a th ing to be done is said to instigate the doing of that thing. Explanation 2. - Whoever, either prior to or at the time of commission of an act does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." Sufficient evidence was produced by the prosecution, to prove that the deceased was being maltreated by the accused, who are none-else than the husband, mother-in-law and father-in-law respectively, in connection with the demand of more dowry, from time to time. Nachhatar Singh, PW-3, is the star witness of the prosecution. He is brother of the deceased. He stated that the accused were not happy with the dowry, given by them, at the time of marriage of his sister with Karnail Singh, accused and as such they maltreated her. He further stated that after some days of the marriage, they started maltreating his sister. He further stated that 1-1/2 years after the marriage, his sister Amarjit Kaur gave birth to a male child, and, on this occasion, all the accused demanded customary gifts (Shushak) from them. He further stated that, as per their financial status, they gave them the customary gifts (Shushak). However, the accused were not at all happy. He further stated that 1-1/2 years after the marriage, his sister Amarjit Kaur gave birth to a male child, and, on this occasion, all the accused demanded customary gifts (Shushak) from them. He further stated that, as per their financial status, they gave them the customary gifts (Shushak). However, the accused were not at all happy. No only this, from the statement of Nachhatar Singh, it was further proved that about six months, before the occurrence, the elder brother of Karnail Singh, accused, was married and a lot of dowry was given by his in-laws." On seeing that, a lot of dowry had been given, at the time of the marriage of their elder son, the patents of Karnail Singh, as also Karnal Singh, became more furious, and started perpetrating extreme cruelty against the deceased, asking her to bring more dowry. It was, at that occasion, that she came to her parents and told the entire story to them. It was thereafter that Nachhatar Singh, brother of the deceased, Sadhu Singh, father of the deceased, and Darshan Singh, brother-in-law of Nachhatar Singh, came to village Golewala along with Amarjit Kaur, in the house of her in-laws. At that time, they requested the accused that they should stop maltreating her. At that time also, the accused demanded Colour TV, VCR and Refrigerator. They also told them that, in case, they were unable to give those articles, in the shape of dowry, then they could take back Amarjit Kaur, or she may go wherever she liked or die. They further told that they would not keep her, in their house, and perform the marriage of Karnail Singh somewhere else. It was, at that juncture, that the parents of the deceased agreed to give colour TV, VCR and Refrigerator. Amarjit Kaur was left in the house of her inlaws and Nachhatar Singh and others came back. Immediately thereafter on 18.06.1989, when Nachhatar Singh and his brother-in-law Darshan Singh, went to the house of her in-laws, to enquire about her welfare, she was not available there. Ultimately, the dead bodies of Amarjit Kaur and her minor child were found on the bank of the canal. The death, as stated above, as per the opinion of the doctor, was on account of drowning, which was antemortem, in nature. The accused are greedy persons, as is proved from the statement of Nachhatar Singh, PW3. Ultimately, the dead bodies of Amarjit Kaur and her minor child were found on the bank of the canal. The death, as stated above, as per the opinion of the doctor, was on account of drowning, which was antemortem, in nature. The accused are greedy persons, as is proved from the statement of Nachhatar Singh, PW3. Nachhatar Singh, PW-3, in clear-cut terms, stated that earlier Karnail Singh, accused, husband of Amarjit Kaur, deceased, was engaged in their village to the daughter of Zora Singh and the marriage party had been sent back without the bride, as there was some dispute over the dowry. From this incident, it could be well imagined, how greedy the accused are. No doubt, promise by the parents of the deceased had been made, for giving the aforesaid articles, in the shape of dowry, to the accused, yet they had not yet fulfilled that demand. Had the demand been fulfilled, the matter would have been different. Since the demand was still unfulfilled, the greedy persons like the accused, could go to any extent, to create such adverse circumstances, for the deceased, forcing her to commit suicide, alongwith her minor child. If a person is continuously tortured and subjected to cruelty of extreme degree, it is not at all possible for her/him, to tolerate the same. It was, thus, the continuous torture and cruelty having been caused to the deceased, by the accused, that she was compelled to take an extreme step, to end her life, and the life of her minor child. Otherwise, a lady having a male child of the age of about 4-1/2 years, in her lap would certainly entertain high hopes, to lead a very happy married life. Had she been not treated with extreme cruelty, referred to above, she would have been the last lady, even to think about the commission of suicide. The evidence of Nachhatar Singh, PW-3, was duly corroborated by the evidence of Zora Singh, PW-4, with whose daughter, Karnail Singh was earlier engaged, but the marriage party had to be sent back, as there was some dispute over the dowry. From the statements of Jaswant Singh, PW-7, and Darshan Singh, PW- 8, it was also proved that the accused abetted the commission of suicide, by Amarjit Kaur and her minor son. From the statements of Jaswant Singh, PW-7, and Darshan Singh, PW- 8, it was also proved that the accused abetted the commission of suicide, by Amarjit Kaur and her minor son. As such, the ingredients required for constituting the offence, punishable under Section 306 of the Indian Penal Code, were duly proved. The trial Court was right in coming to the conclusion, that the accused committed the offence, punishable under Section 306 of the Indian Penal Code. The conclusion arrived at, by the trial Court, is based on the correct appreciation of evidence and warrant no interference. The conclusion of the trial, in this regard, is affirmed. 13 It was next submitted by the Counsel for the appellants, that Amarjit Kaur and her minor child were found dead on 18.06.1989, and it was in the knowledge of Nachhatar Singh and his parents, but for two days, the FIR was not lodged. He further submitted that there was delay of two days in lodging the FIR, which resulted into concoction of story, false implication of the accused, and introduction of false witnesses. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. When Nachhatar Singh along his brother-in-law went to the house of the in-laws of the deceased on 18.06.1989, they found that she (deceased) and her child were not present there. They asked the accused about the whereabouts of Amarjit Kaur and her minor child, but they could not give any satisfactory reply. Naturally, before proceedings further, as it was a very sensitive matter, they were required to conduct search of Amarjit Kaur, and her minorson. However, they could not succeed in searching Amarjit Kaur, and her son and ultimately when the dead bodies of Amarjit Kaur and her child were found, the FIR was lodged. The brother and parents of Amarjit Kaur, since deceased, must be perplexed and puzzled, on account of the disappearance of Amarjit Kaur and her minor child. Their first concern was to search them. If a man is put in such a condition, he is not able to act swiftly, in the matter of lodging the report. It was, under these circumstances, that delay occurred, in lodging the First Information Report. The aforesaid circumstances explain the delay in lodging the FIR. Their first concern was to search them. If a man is put in such a condition, he is not able to act swiftly, in the matter of lodging the report. It was, under these circumstances, that delay occurred, in lodging the First Information Report. The aforesaid circumstances explain the delay in lodging the FIR. Even otherwise, mere delay in lodging the FIR, in itself, is not sufficient to throw away the case of the prosecution. In the face of delay in lodging the FIR, the Court is required to scrutinize the evidence of the prosecution witnesses, to come to the conclusion, as to whether the same is reliable. If the Court, after such scrutiny, comes to the conclusion that the same is reliable, then delay pales into insignificance. The evidence produced by the prosecution is reliable. The delay, if any, thus pales into insignificance. On account of such delay, there was neither false implication of the accused, nor concoction of false story, nor introduction of false witnesses. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 14. It was next submitted by the Counsel for the appellants, that Nachhatar Singh, PW-3, during the course of cross-examination, stated that when they went to the house of the accused, Karnail Singh, did not make any demand. He further submitted that he also stated that, at that time, only the demand of dowry was made by Mukhtiar Kaur and her husband. He further submitted that Karnail Singh was, thus, not responsible for the commission of any offence. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. The evidence of the witnesses, is required to be read, as a whole, and not by tearing the same into pieces. When the evidence of Nachhatar Singh, PW-3, is read as a whole, then only one and one inescapable conclusion,that can be arrived at, is that all the three accused from time to time subjected Amarjit Kaur to cruelty in connection with the demand of dowry. If, on one occasion, Karnail Singh, did not demand the articles in the shape of dowry, then that does not absolve him of his earlier demands made by him, in connection therewith, from the deceased and her parents. If, on one occasion, Karnail Singh, did not demand the articles in the shape of dowry, then that does not absolve him of his earlier demands made by him, in connection therewith, from the deceased and her parents. In this view of the matter, the submission of the Counsel for the appellants, therefore, being without merit, must fail, and the same stands rejected. 15. The defence version and the defence evidence were duly noticed and discussed by the trial Court in paras 22 to 26 of its judgment. Ultimately the trial Court came to the conclusion that the defence evidence did not prove the innocence of the accused for the offence punishable under Section 306 of the Indian Penal Code. However, the trial Court, on appreciation of the defence evidence came to the conclusion that no offence punishable under Section 304-B of the Indian Penal Code was made out, as it was not proved that the death of the deceased did take place within seven years of her marriage. This Court, after reappraisal of the evidence, also comes to the same conclusion. 16. Now coming to the revision petition, it may be stated here, that the same is liable to be dismissed, for the reasons to be recorded hereinafter. The trial Court, after due appreciation of the evidence, on record, awarded adequate sentence to the accused. The sentence awarded by the trial Court is commensurate with the gravity of offence. The Counsel for the revision- petitioner could not point out any circumstance, showing that the sentence awarded was shockingly on the lower side. No ground is made out for the enhancement of sentence. 17. Award of compensation was also prayed for, in the revision petition. It may be stated here, that besides awarding substantive sentence, to the accused, the trial Court also imposed the sentence of fine upon them. According to the provisions of Section 357(3) Cr.P.C, if the fine forms part of the sentence, then no compensation can be awarded. The trial Court, however, rightly came to the conclusion that the amount of fine, if recovered, shall be paid, in its entirety, to the parents of the deceased. Under these circumstances, this prayer also does not merit acceptance. 18. No other point, was urged, by the Counsel for the parties. 19. The trial Court, however, rightly came to the conclusion that the amount of fine, if recovered, shall be paid, in its entirety, to the parents of the deceased. Under these circumstances, this prayer also does not merit acceptance. 18. No other point, was urged, by the Counsel for the parties. 19. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference. The same are liable to be upheld. 20. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction and the order of sentence dated 19.09.1992, are upheld. If the appellants are on bail, their bail bonds shall stand cancelled. 21. Criminal Revision Petition No. 698 of 1992 is also dismissed, being devoid of merit. 22. The Chief Judicial Magistrate, shall take necessary steps, in accordance with the provisions of law, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure. The compliance report be sent immediate thereafter.