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2009 DIGILAW 771 (PNJ)

Nasib Chand v. State of Punjab

2009-04-22

SHAM SUNDER

body2009
JUDGMENT Sham Sunder, J. - This judgement shall dispose of Criminal Appeal No. 349SB of 1996, filed by Nasib Chand, Sansari Lal and Gurbachan Kaur, accused (now appellants), against the judgement of conviction, and the order of sentence, dated 19.04.96, rendered by the Court of Sessions Judge, Hoshiarpur, vide which, it convicted the accused, for the offence, punishable under Section 304-B of the Indian Penal code, and sentenced them, to undergo rigorous imprisonment, for a period of seven years each, and Criminal Revision No. 508 of 1996, filed by Gurdev Singh, revision-petitioner, for enhancement of sentence, awarded to the appellants. 2. The facts, in brief, are that, Paramjit Kaur, was married to Nasib Chand, in February, 1989, and sufficient dowry, according to the capacity was given at that time. Paramjit Kaur, was having a son, aged 1-1/2 years at the time of death. Nasib Chand, had gone to Italy, one month, after the marriage, and in his absence, the mother-in-law and father-in-law of Paramjit Kaur started taunting her, on account of bringing inadequate dowry. The brother of. Paramjit Kaur namely Gurdev Singh, alongwith his father, had gone to the accused, to prevail upon them, not to harass Paramjit Kaur. In August, 1993, again they started harassing the deceased and she was turned out of the house. In October, 1992, Gurdev Singh, alongwith his relatives went to the house of the accused, and left her there. After sometime, Nasib Chand, returned from abroad. He told that if they wanted the deceased happy, she should be sent alongwith him abroad and, for that, expenses of Rs. 1 lac, were required to be incurred. Since the complainant could not afford such a huge amount, Nasib Chand, went back alone to Italy. 13/14 days prior to the date of occurrence, Nasib Chand, had come to his village, and Paramjit Kaur, was beaten up. Some poisonous matter was administered to her, and she was killed. The statement, containing the aforesaid facts, was made by Gurdev Singh, complainant, the brother of Paramjit Kaur, on 03.07.95, on the basis whereof, the first information report, was recorded. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received, by commitment, in the Court of Sessions, charge under Section 304-B of the Indian Penal Code, was framed against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Dr. S.K. Mahajan (PW1), who on 04.07.95, at 10.30 AM, performed postmortem examination, on the dead- body of Paramjit Kaur wife of Nasib Chand, resident of Takia Baba Dholey Shah Mohalla, Hariana, and observed, as under : "Length of body was 5 ft. It was a body of young woman, moderately built, poorly nourished, wearing jamper and salwar striped coca cola and yellow colour, underwear, dark brown chunni mehandi colour metallic necklace, metallic ring, on second toes on either-side, metallic kara, one hair pin. Eyes and mouth were closed. Froth was coming out of the mouth and nostrils. Rigor mortis was disappearing from the arms and lower limbs. Post-mortem staining was present on the dependent parts. Face is congested. Nails cyanosed. A scar of 15 cm x 1/2 cm, on right side of abdomen. Liver, spleen, kidneys, and stomach, were slightly congested and normal. Cause of death in this case was due to organophosphorous group of insecticides, which was sufficient to cause death, in the ordinary course of nature, and the opinion in that regard was given by me, after the receipt of report from the Chemical Examiner to Govt. Punjab, Patiala, which is Ex. PA. The carbon copy of my post-mortem report is Ex. PB. My opinion, regarding the cause of death was given vide memo Ex. PC. I had performed the postmortem examination, on the Police request Ex. PD, and inquest report Ex. PE, was accompanying the dead- body, and I had initialled all the pages thereof. I had sent to the Chemical Examiner, in a wooden box duly sealed, small pieces from liver, spleen, kidney, small and large intestine, and the stomach, with its contents and had handed over to the Police the following - 1. Stitched dead-body with its belongings; 2. Copy of the post-mortem report; 3. Wooden box containing five sealed bottles of viscera; 4. Stitched dead-body with its belongings; 2. Copy of the post-mortem report; 3. Wooden box containing five sealed bottles of viscera; 4. An envelope containing carbon copy of PM report, police papers and forwarding letter and seal impression of the seal used. The probable time that elapsed between death and post-mortem was about 36 hours." 5. Paramjit Singh, Draftsman (PW2), prepared the site plan PF, Head Constable Balwinder Singh (PW3), tendered his affidavit PG, Parshotam Lal, Constable (PW4), tendered his affidavit PH, and Ranjodh Singh, Constable (PW5), tendered his affidavit PJ. 6. Gurdev Singh, brother of Paramjit Kaur, deceased, and the first informant- cum-complainant, appeared as (PW6). 7. Rakha Ram (PW7), deposed, with regard to the illtreatment of the deceased, at the hands of the accused, on account of inadequate dowry. 8. Sub Inspector Harbhajan Dass (PW8), is the Investigating Officer. He investigated the case, and proved various documents. Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 9. 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. Nasib Chand, husband of Paramjit Kaur, deceased, in his statement, under Section 313 of the Code of Criminal Procedure, stated that, he was innocent. He further stated that he used to send money to his parents, and also his wife, from Italy, where, he had gone. He further stated that his wife used to spend some amount, out of it, and also used to give the remaining amount to her parents, and she told this to him. It was further stated by him, that on his return from Italy, to India, last time, he told his wife that he was going to settle in India, and, as such, was in need of money. He asked her to bring back money from her parents which she had paid to them, out of the remittances made by him. It was further stated by him, that her parents flatly refused to return the money, and she felt insulted, inspite of his consoling her, not to take this matter, to her heart. It was further stated by him, that she took the drastic step, out of shame. It was further stated by him, that her parents flatly refused to return the money, and she felt insulted, inspite of his consoling her, not to take this matter, to her heart. It was further stated by him, that she took the drastic step, out of shame. It was further stated by him, that letters marked A, B, and C, were in the hands of his wife Paramjit Kaur, and she posted those letters to him, when he was in Italy. He identified her handwriting because he had been seeing her writing letters, and he was conversant with her handwriting. He further stated that he never demanded dowry from her parents, and brothers, because he had earned sufficient money from Italy. It was further stated by him, that she was living happily and was never maltreated by them. 10. Sansari Lal, father of Nasib Chand, and Gurbachan Kaur, mother of Nasib Chand, in their statements, under Section 313 of the Code of Criminal Procedure, also took up the same plea, as was taken up by Nasib Chand, in his statement, under Section 313 of the Code of Criminal Procedure. 11. The accused examined V.K. Sharma, Assistant Manager, Punjab National Bank, village Chutala, P.S. Hariana (DWI), who proved DA, certified copy of the statement of account, Surinder Lal Bhatia, Clerk, Punjab National Bank, Hariana (DW2), who proved DB, true copy of the ledger, Darshan Lal (DW3), who stated that Paramjit Kaur, wife of Nasib Chand, was being treated well by the accused and no demand of dowry was ever made, and Rajesh Goyal, Accounts Officer, Bawa Nursing Home, Jalandhar (DW4), who stated that Paramjit Kaur, was operated for kidney stone, on 30.11.92, in their hospital, and he charged Rs. 5000/-, as operation charges. Nasib Chand, accused, also tendered into defence evidence D1 to D5, photocopies of Kissan Vikas Patras, D6, photocopy of the FDR, and original certificate D7. He also tendered into evidence, mark D to E, documents, in his defence. thereafter, the accused, closed their defence evidence. 12. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 13. Feeling aggrieved, the aforesaid appeal, was filed by the appellants, and the revision-petition, was filed by the revision petitioner, for enhancement of sentence, awarded to the appellants. 14. 12. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 13. Feeling aggrieved, the aforesaid appeal, was filed by the appellants, and the revision-petition, was filed by the revision petitioner, for enhancement of sentence, awarded to the appellants. 14. The Counsel for the appellants, the very outset, submitted, that Nasib Chand, one of the appellants, has already undergone the sentence awarded to him, by the trial Court. He further submitted that, even then, he would address arguments, with regard to the legality, validity, and correctness of the judgement, on behalf of Nasib Chand, accused too. 15. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 16. For constituting the offence, punishable under Section 304-B of the Indian Penal Code, the prosecution is required to prove that a married lady died, within seven years of her marriage; otherwise than under normal circumstances; and soon before her death, she was subjected to cruelty, in connection with the demand of dowry, by her husband, or his relatives. Once, these ingredients are proved, then the statutory presumption, under Section 113-B of the Indian Evidence Act, 1872, operates that the accused committed the dowry death. No doubt, such a presumption, is rebuttable. Now, let us see, as to whether, these ingredients, are proved, in this case, or not. In the instant case, it was admitted by the accused, that Paramjit Kaur, died within 07 years of her marriage, on account of having consumed organo-phosphorous group of insecticides. The death of Paramjit Kaur, was, thus, under circumstances, other than normal. Two ingredients for constituting the offence, punishable under Section 304-B of the Indian Penal Code, therefore, stood proved from the evidence on record. 17. The Counsel for the appellants, submitted that the third ingredient that Paramjit Kaur, was subjected to cruelty, in connection with the demand of dowry, by the accused, was not at all proved and, as such, the trial Court, fell into a grave error, in recording conviction, and awarding sentence to the accused. The submission of the Counsel for the appellants, in this regard, appears to be correct. Gurdev Singh, PW6, is the first informant and the star witness of the prosecution. The submission of the Counsel for the appellants, in this regard, appears to be correct. Gurdev Singh, PW6, is the first informant and the star witness of the prosecution. He stated in examination-in-chief, that in August, 1992, his sister, was turned out of her bridal house, after beatings to her by her in-laws. He further stated that she was told to bring more dowry. He further stated that, in the month of October, 1992, he alongwith his father Duman Ram, Joginder Singh, Lal Chand, and Rakha Ram, had left Paramjit Kaur, in the house of her in-laws, and requested them, to keep her properly. He further stated that they raised a demand of Rs. 1 lac, in order to send Paramjit Kaur, abroad. He further stated that Nasib Chand, came back from in December, 1992. He also raised the same demand, and told them, that if they wanted to see his (Gurdev Singhs) sister happy, they should arrange the amount, for the aforesaid purpose. He further stated that Nasib Chand, again went to Italy, and her (Paramjit Kaurs) in-laws, kept on demanding dowry and harass his sister. He further stated that 13/14 days prior to the death of his sister, Nasib Chand, came from Italy, and he went to the house of the in-laws of Paramjit Kaur, who told that accused Nasib Chand was persisting in the demand of dowry. He further stated that on 03.07.95, he found the dead-body of his sister. In the first instance, it may be mentioned here, that Gurdev Singh, did not state, as to what specific articles, in the shape of dowry, were demanded by the accused, from Paramjit Kaur, or from them. The mere statement of Gurdev Singh, to the effect, that the accused, maltreated his sister, for bringing inadequate dowry, could not lead the Court, anywhere. Coming to the demand of Rs. 1 lac, allegedly made by the accused, for sending Paramjit Kaur, to Italy, where Nasib Chand, her husband, had already settled, it is doubtful, that such a demand, even if, assumed to be correct, which is not so, as would be discussed, hereinafter, could fall within the purview of dowry. No doubt, the Counsel for the respondent, submitted that such a demand having been made, in connection with the relationship of marriage, fell within the purview of dowry. No doubt, the Counsel for the respondent, submitted that such a demand having been made, in connection with the relationship of marriage, fell within the purview of dowry. In my opinion, such a demand, could not be said to have been made, in connection with the relationship of marriage. Even otherwise, such a demand was not proved, from the evidence, on record. Nasib Chand, had gone to Italy, after one month of his marriage. He had earned a lot of money therefrom. Under these circumstances, it could not be said that he, or his parents, could ever make a demand of dowry, from Paramjit Kaur, or her parents. During the course of cross-examination, Gurdev Singh, stated that, it was correct that on his last visit from Italy, to India, Nasib Chand, had told his sister Paramjit Kaur, that he intended to establish his business, in India. He further stated that he (Nasib Chand) told his sister that she should bring back money, from her parents. He further admitted it, as correct, that on demand made by his sister Paramjit Kaur, they refused, to return the money. This clearly goes to show that out of the money, which was being sent by Nasib Chand, to his wife, substantial amount used to be given by her to her parents. When the brother and parents of Paramjit Kaur, owed money to Nasib Chand, the question of demand of dowry, by him, and his parents, from Paramjit Kaur, or her parents, did, not at all arise. In these circumstances, the complainant and his parents could not be said to be in such a financial condition, so as to enable the accused, to demand money and dowry from them. The defence version set up by the accused, in their statements, is probablised from the cross-examination of Gurdev Singh, that the parents of Paramjit Kaur, owed money to Nasib Chand, which he had sent to her, from foreign country, and she had given the same to them and when he demanded the same, through his wife, that money, from them, for establishing his business, in India, as he intended to come back, and she asked them, to pay back the money, they refused and as such, she felt humiliated, and consumed organo- phosphorous group of insecticides, which is easily available, in the agriculturists families. Even in the photographs D1 to D13, of Paramjit Kaur, and her husband, it is evident, that they were leading a happy life. In letters marks B and C, which were written by Paramjit Kaur, to Nasib Chand, and the handwriting whereof was proved by him, do not show that, at any point of time, any demand of money, and dowry was made from her and her parents, by the accused and she was treated with cruelty, in connection therewith. Gurdev Singh, also made material improvements, and contradictions, in his statement, in the Court, over his previous statement, which formed the basis of the first information report. During the course of his cross-examination, he deposed, that he stated in his statement PK, that the Own accused demanded more dowry, in August, 1992, (when his attention ws drawn to his statment PK, this fact was not found recorded therein, rather it was found recorded that the father- in-law and the mother-in-law of Paramjit Kaur, told that, since the sister of Gurdev Singh, was not bearing any child, and on that account, she was being harassed). He further deposed that he stated before the Police that in October, 1992, he alongwith his father Duman Ram, Joginder Singh, Lal Chand, and Rakha Ram, had gone to the house of the accused (when his attention was drawn to his statement PK, this fact was not found recorded therein). He further deposed that he stated, in his statement, exhibit PK, that he went to the house of the in-laws of Paramjit Kaur, when Nasib Chand, was not present, whereas his sister, with her mother-in-law, was present, and she told that the behaviour of the accused was the same regarding the demand of dowry (when his attention was drawn to his statement PK, this fact was not found recorded therein). He further deposed that he stated, in his statement, on 03.07.95, that he was present, in his office, when he learnt about the illness of his sister (when his attention was drawn to his statement PK, this fact was not found recorded therein). He further deposed that he stated, in his statement, on 03.07.95, that he was present, in his office, when he learnt about the illness of his sister (when his attention was drawn to his statement PK, this fact was not found recorded therein). He further deposed that he did not state, in his statement exhibit PK, that Nasib Chand, alongwith his father and mother, had given some poisonous substance to his sister, and after beating her, at 11.00 PM, she was killed (when this witness was confronted with portion A to Al, of his statement exhibit PK, this fact, was found recorded therein). The aforesaid material improvements and the contradictions, made by this, witness, over his previous statement exhibit PK, clearly go to show, that this witness, has scant regard for truth. This clearly goes to show that, neither any demand, with regard to dowry, nor demand of Rs. 1 lac, for sending Paramjit Kaur, to foreign country, was made, by the accused, but the same were concocted, later on, just with a view to bring the case, within the purview of Section 304-B of the Indian Penal Code. In Yudhistir v. State of M.P., 1977 S.C. (Crl), 684, the principle of law, laid down, was to the effect, that when a particular fact, deposed to by the witness, does not find mention in the FIR and the statement, under Section 161 Criminal Procedure Code, it is an improvement and it cannot be considered. In K Lakshman Rao v. The Public Prosecutor State of Andhra Pradesh & Another, 1979 Criminal Law Journal (SC), 696(1067), the principle of law, laid down, was to the effect that the improvements throw doubt, on the prosecution story. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the present case. The trial Court, was, thus, wrong in placing reliance, on the statement of Gurdev Singh, to come to the conclusion, that Paramjit Kaur, was subjected to cruelty, in connection with the demand of dowry, soon before her death. The prosecution, thus, � failed to prove the third ingredient, for constituting the offence, punishable under Section 304-B of the Indian Penal Code. The prosecution, thus, � failed to prove the third ingredient, for constituting the offence, punishable under Section 304-B of the Indian Penal Code. The submission of the Counsel for the appellants that, neither demand of dowry articles or cash, was ever made, by the accused, from Paramjit Kaur, or her parents, at any point of time, or soon before her death, nor she was subjected to cruelty, in connection therewith, carries force, and stands accepted. 18. Conning to the revision-petition, it may be stated here, that since this Court, has held that the prosecution failed to prove one of the ingredients, required for constituting the offence, punishable under Section 304-B of the Indian Penal Code, and they were entitled to acquittal, the criminal-revision, filed by the complainant, for the enhancement of sentence, awarded to the accused (now appellants), must fail, and the same deserves to be dismissed. 19. In view of the above discussion, it is held that the judgement of conviction, and the order of sentence, are not based on the correct appreciation of evidence, and law, on the point. The trial Court, did not appreciate the evidence produced, on record, in its proper perspective, and, thus, fell into a grave error, in recording conviction, and awarding sentence. Had the trial Court, taken into consideration, the aforesaid infirmities, and lacunae, the fate of the case would have been otherwise. The judgement of conviction, and the order of sentence, are liable to set-aside. 20. For the reasons recorded above, the appeal, is accepted. The judgement of conviction, and the order of sentence, rendered by the trial Court, are set- aside. The appellants, shall stand acquitted of the charge, framed against them. In case, the appellants, are on bail, they shall stand discharged of their bail bonds. If they,are in custody, they shall be set at liberty, at once, if not required, in any other case. 21. Criminal Revision No. 508 of 1996, filed by the complainant/revision petitioner is dismissed. 22. The Chief Judicial Magistrate, is directed to comply with the judgement promptly, in accordance with law. Appeal allowed.