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2010 DIGILAW 1446 (PNJ)

Kulwant Singh v. State Of Punjab

2010-04-09

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1. The case relates to the sordid story of an unfortunate death of Kamlesh Kaur aged about 24 years, who allegedly committed suicide by consuming aluminum phosphide. Consequently, Kulwant Singh being husband, Tarsem Kaur mother in law and Baldev Kaur his brothers wife were prosecuted. However, vide judgment dated 15.2.2000, passed by the learned Additional Sessions Judge, Hoshiarpur, accused Tarsem Kaur and Baldev Kaur were extended benefit of doubt and acquitted of the charges, whereas, accused-appellant Kulwant Singh (herein referred as the accused) was convicted and sentenced to undergo rigorous imprisonment for 8 years and to pay fine of Rs. 5000/- under Section 304-B IPC. 2. The case reflects an unique history. It exposes the plight of helpless poor and simpleton conduct of the witnesses and the victim and also highlights the mischievous and partial conduct of the police officers in lending support to those who hold briefs for them. 3. Brief resume of facts, as culled out from the report under Section 173 Cr.P.C. is that Kamlesh Kaur aged about 24 years was married to the accused 4-1/2 years back. Out of the wedlock, a child was born to them who was about three years old at the time of occurrence i.e. 12.12.1995. Kamlesh Kaur died after having taken the aluminum phosphide, a poisonous substance at the house of her inlaws. Kirpal Singh complainant (herein referred as the complainant) in his first statement Ex.PF dated 12.12.1995 disclosed that the accused did not allow her to visit her parents for the last two years, however, he tried to persuade the accused not to restrict her movements. He had also taken Sarpanch Kuldeep Singh of the village to the house of the accused for the said purpose. On 12.12.1995 at about 3.00 p.m. he received a message that his sister was lying admitted in serious condition in Doaba Medical Hall, Kot Fatuhi, where he accompanied by his wife Satya Devi, son Balbir Singh and one Harvail Singh Saini went to Doaba Medical Hall, Kot Fatuhi and found that the dead body of Kamlesh was lying there. He further added that Kulwant Singh, Tarsem Kaur and Baldev Kaur must have administered poison to her, as a result of which she died. He further added that Kulwant Singh, Tarsem Kaur and Baldev Kaur must have administered poison to her, as a result of which she died. ASI Ram Chand recorded the aforesaid statement in the DDR, but no further action was taken on the aforesaid statement, though it pertained to the murder of his sister at the hands of the accused. However, Kirpal Singh on the next day i.e. 13.12.1995 moved an application Ex.PW3/A against all the three accused wherein he levelled allegations of maltreatment, demand of dowry and harassment to the deceased at the hands of the accused. English translation of the relevant portion of the application moved to the Senior Superintendent of Police, Hoshiarpur is reproduced as under :- "The aforesaid party (all the three accused) had been harassing taunting and beating his sister on account of bringing inadequate dowry. Kulwant Singh had illicit relations with his brothers wife, therefore, also she was maltreated more. The husband of Baldev Kaur is residing in America for the last 3-1/2 years. The accused persons are ready with their passports and they could fly abroad at any time. They had murdered his sister by administering poison about which he came to know at 4.00 p.m through Garh Shanker police." 4. The application Ex.PW3/A bears the endorsement referring the application to ASI Ram Chand, but no case was registered by him either on the statement Ex.PF or the application Ex.PW3/A made by the complainant. However, on receipt of Chemical Examiners report Ex.PB, he got registered a case on 20.2.1996, on the basis of the initial statement Ex.PF made by the complainant on 12.12.1995 which was got investigated. He collected the postmortem examination report; recorded statements of the witnesses; arrested the accused and thereafter a report under Section 173 Cr.P.C. was submitted in the Court. 5. On commitment, all the accused were charged under Sections 304-B and in the alternative under Section 306 IPC, to which they pleaded not guilty and claimed trial. 6. In order to substantiate the charges, the prosecution examined Dr. Ashok Kumar Sud (PW1), Dr. Jatinder Singh (PW2), Satish Kumar (PW3), Sarwan Singh (PW4), Inspector Manjit Singh (PW5), Kirpal Singh complainant PW5/A, Prem Pal (PW6) and ASI Ram Chand (PW7). 7. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Ashok Kumar Sud (PW1), Dr. Jatinder Singh (PW2), Satish Kumar (PW3), Sarwan Singh (PW4), Inspector Manjit Singh (PW5), Kirpal Singh complainant PW5/A, Prem Pal (PW6) and ASI Ram Chand (PW7). 7. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. They further explained that they are innocent and never demanded any dowry from Kamlesh Kaur nor from her relatives. She was never harassed or maltreated on account of dowry. They never stopped Kamlesh Kaur from meeting her relations. She got aborted a child in June, 1995 and since then she was under depression because of the abortion and due to abortion she consumed some poisonous substance. They tried their best to save her. 8. In defence, the accused examined Harvail Singh (DW1). He was once a prosecution witness but was examined in defence. He admits that he was an accused in case under Section 307 IPC and was facing trial. Kuldip Singh Sarpanch (DW2) has given the cause of death family feud, as Kamlesh Kaur wanted to live separately from rest of the family and was pressing upon Kulwant Singh to leave his parents and start residing at Garh Shanker. 9. After appreciation of evidence, the trial court while extending benefit of doubt to Tarsem Kaur and Baldev Kaur, acquitted them and convicted accused Kulwant Singh under Section 304-B IPC and sentenced him accordingly. 10. Arguments heard. Record perused. 11. The main plank of the arguments advanced by the learned counsel for the appellant is that three different versions leading to the cause of death of Kamlesh Kaur have been set out by the prosecution. Kirpal Singh complainant has made improvements over the first version in the complaint Ex.PW3/A and thereafter third version was given while filing the complaint Ex.PW3/A, therefore, the testimony of such witness cannot inspire confidence. But, having scrutinized the records of the case it appears that the complainant had to suffer due to hanky panky made by ASI Ram Chand who after manipulating the statement of the complainant Ex.PF recorded DDR and stalled the proceedings of investigation that is why the complainant had to file regular complaint Ex.PG wherein he has clarified in his complaint about three fold allegations against the accused: (i) the accused used to demand dowry and harass his sister on this account. They had a grouse that his sister had brought less dowry. (ii) They did not permit his sister to visit her parental house. (iii) The accused Kulwant Singh was having illicit relations with Baldev Kaur as her husband was living in U.S.A. 12. While explaining highhandedness of ASI Ram Chand, he has stated that after reaching the Doaba Medical Hall, Kot Fatuhi, he saw his sister lying dead. However, ASI Ram Chand obtained his signatures on the statement Ex.PF despite the refusal made by him. Thereafter, he made complaint on 13.12.1995 Ex.PW3/A. He has also clarified that ASI Ram Chand had obtained signatures of Harmail Chand Saini Municipal Councillor Garh Shanker on the statement Ex.PF. It is also noticed that the complaint Ex.PG was filed on 22.3.1996 only after he came to know that the FIR recorded on the basis of the statement Ex.PF does contain the true facts and it was not the statement given by him. Thus, no imputation regarding manipulation and improvements on the part of the complainant could be attacahed to him particularly when the complainant has duly supported the allegations while appearing as PW-5/A and his testimony stands duly corroborated by Satish Kumar and Prem Pal Singh (PW6). These witnesses have consistently stated that Kamlesh Kaur was subjected to harassment by the accused for bringing less dowry. Even Satish Kumar (PW3) has categorically stated that Kamlesh Kaur had come to him in the month of September, 1994 and stated that she was maltreated by the accused Kulwant Singh and was turned out of the house after giving beatings. It has also been stated by the complainant (PW5) that Kamlesh Kaur had been telling him from time to time that the accused had been demanding dowry equal to the dowry given by the complainant to Nirmal Kaur whose marriage took place in March, 1995. Even in the first week of December, 1995, the complainant had visited the house of the accused and the deceased complained regarding harassment made by the accused for not bringing dowry equivalent to the dowry given to Nirmal Kaur her sister. The delay in the instant case cannot be used to put the complainant in a disadvantageous position as it was only for the^ault on the part of ASI Ram Chand that he colluded with the accused party and manipulated the statement Ex.PF in order to favour the accused. The delay in the instant case cannot be used to put the complainant in a disadvantageous position as it was only for the^ault on the part of ASI Ram Chand that he colluded with the accused party and manipulated the statement Ex.PF in order to favour the accused. Even after recording the statement Ex.PF which involved the commission of the cognizable offence, ASI Ram Chand was bound to send the same to M.H.C. for recording the FIR on that basis but the same was not done. When the complainant came to know about the evil designs of ASI Ram Chand, then he moved an application Ex.PW3/A while levelling allegations against all the three accused regarding maltreatment of Kamlesh at the hands of the accused and also recording demand of dowry. But, still no case was registered after he moved from pillar to post. Ultimately, the case was registered against the accused under Section 306 IPC on 20.2.1996. It is settled law by now that the case of the complainant cannot be thrown away for the fault, slackness and misconduct of the Investigating Officer, as such, the delay in this case cannot be used as a sword in favour of the accused to scuttle the neck of the complainant and it cannot be used as a ground for their acquittal. 13. Learned counsel for the appellant has urged that even if the statement of the complainant made in court is taken as correct, even then, the accused could not be punished for dowry death. 14. Having pondered over the argument the same finds some substance. According to Section 304-B IPC, where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty and harassment by her husband or any relative of her husband for and in connection with any demand of dowry, the accused can be held liable. 15. There is no denying a fact that the deceased was married with the accused 4-1/2 years prior to the incident. Out of the wedlock, a child was born who was three years old at the time of incident. 15. There is no denying a fact that the deceased was married with the accused 4-1/2 years prior to the incident. Out of the wedlock, a child was born who was three years old at the time of incident. Kamlesh Kaur died other than under normal circumstances at the house of the accused, consistent statement of Kirpal Singh complainant (PW5/A) and Prem Pal Singh (PW6) are that the accused had been harassing and maltreating Kamlesh Kaur for bringing more dowry. The deceased told her parents many, a times regarding the demand of dowry. He also went to the house of the accused along with Niranjan Singh, and Kuldip Singh etc. in the village of the accused and requested to him not to torture Kamlesh Kaur. He further states that she committed suicide by consuming some poisonous substance, having been fed with the cruel treatment of the accused. It has also come in evidence of Kirpal Singh (PW5/A) that even in the first week of December, 1995 he visited the house of the accused where the deceased complained him regarding the harassment made by the accused for not bringing dowry equivalent to the dowry given to Nirmal Kaur her sister. Satish Kumar (PW3) corroborates the version with regard to maltreatment and beatings given to the deceased at the hands of the accused. Amongst all the four ingredients for proving the dowry death one of the ingredient which needs compliance is that the prosecution has to establish that such cruelty and harassment was for and connection with any demand of dowry. While criticizing the statement of Kirpal Singh (PW5/A) and Prem Pal Singh (PW6) it transpires that no specific allegations were levelled as to what dowry was demanded and given at the time of marriage and what was demanded later on which led to her death. The only evidence against the accused in this regard is that the accused had been demanding dowry equivalent to the dowry given to her sister Nirmal Kaur at the time of her marriage in the year 1995. But, in the absence of any specific allegations as to what specific demand was raised and in the absence of any proof that what was not given to Nirmal Kaur which was demanded by the accused, it is difficult to record that presumption under Section 113-B of the Evidence Act is attracted. 16. But, in the absence of any specific allegations as to what specific demand was raised and in the absence of any proof that what was not given to Nirmal Kaur which was demanded by the accused, it is difficult to record that presumption under Section 113-B of the Evidence Act is attracted. 16. Notwithstanding the fact that the prosecution was unable to prove as to what actual demand was raised by the accused, but sufficient evidence has been led on the record in order to prove that the accused had abetted the commission of suicide by Kamlesh Kaur while creating such surcharged atmosphere that she could not convince herself for proving a good wife and to act in any other manner than to commit suicide. She being only in twenties was just at the threshold of matrimonial phase of life. She was quite hale and hearty and could consider herself to be happier than any other woman if she would have been dealt properly by her husband who was a taxi driver, who being duty bound could take care of her well being and maintain her and her minor child. No sane lady would leave this world unless compelled by the circumstances beyond her control. At virgins when leaves her house expect all comforts and happiness in her matrimonial house and it is not the part of her dream that she would be treated as a chattel or a petal to be thrown away after use. She is not a direct, dust or dung but is like a yellow metal in the family to be made a part and parcel of it. Cooperation, alignment, adjustment and mutual understanding should be the necessary element while rehabilitating her in the house, little deviation therefrom would be a cause leading to break into the ties. There is evidence that besides Kulwant Singh there were two other ladies in the house. Cooperation, alignment, adjustment and mutual understanding should be the necessary element while rehabilitating her in the house, little deviation therefrom would be a cause leading to break into the ties. There is evidence that besides Kulwant Singh there were two other ladies in the house. The husband of Baldev Kaur accused was in U.S.A., therefore, on the entry of Kamlesh Kaur in the house, Baldev Kaur must not be bearing the break in love and affection which the accused has been imparting to her and it had to give birth to the dispute and suspicion in the mind of Kamlesh Kaur, consequently, quarrel between the husband and wife was obvious, that is why Kirpal Singh complainant from the very beginning is levelling allegations that she must have been murdered by administering poison by the accused, but for want of evidence, the law is well within its compulsions to dub them as offenders of murder. Besides the evidence of maltreatment, harassment and beatings at the hands of the accused, coming from the depositions of Satish Kumar, Kirpal Singh end Prem Pal Singh, there is statement of Dr. Jatinder Singh (PW2). He is a private practitioner at village Kot Fatuhi and quite near to their house. He says that Kamlesh Kaur was brought by the accused, two hours after she had consumed the poisonous substance. It also highlights the evil designs of the accused. Had the accused been clear in their mind, then they might have taken her to the Government Hospital which was equipped with all the instruments for treatment, much less to Dr. Jatinder Singh forthwith without wasting any time, but she was taken two hours after she had consumed the poison and this doubtful conduct of the accused does not stand explained in any manner. No merit could be detected in the contention raised by the learned counsel for the appellant that since the accused was not at his house, therefore, she could not be taken immediately as apart from Kulwant Singh, two ladies present in the house could take the help of the neighbours for carrying her to the hospital or to the private practitioner for her treatment. But, delay in taking her to the hospital puts a question mark on the conduct of the accused. 17. Undisputedly, marriage between the accused and the deceased took place in the month of June, 1991. But, delay in taking her to the hospital puts a question mark on the conduct of the accused. 17. Undisputedly, marriage between the accused and the deceased took place in the month of June, 1991. It is also not disputed that Kamlesh Kaur committed suicide while consuming aluminum phosphide in her matrimonial home on 12.12.1995 i.e. within seven years of her marriage, it has been proved by three witnesses namely Satish Kumar (PW3), Kirpal Singh (PW5/A) and Prem Pal (PW6) that the accused had been assaulting Kamlesh Kaur and the dispute was still subsisting between them even one week prior to the incident. These duly established facts go to constitute an offence under Section 306 IPC. 18. According to Section 306 IPC, "if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 19. No doubt, abetment can be by performing a positive act., however, it can even be by conduct or by omission. But before a conviction can be recorded under Section 306 IPC, there must be some nexus between the alleged act of abetment and the death. The evidence which has been recorded in this case gives an irresistible conclusion that the accused had surcharged the family atmosphere in such a manner leaving no option for the deceased but to adopt the extreme step. A married lady having a son in her lap would not end her life unless sne is subjected to cruelty, maltreatment and harassment to such an extent that it had compelled her to finish herself for all times to come from this beautiful world. The ladies who enter into this pious relationship, only think of their happy married life and dream of becoming good wife, mother, mother in law and would hope for getting love and affection and financial security at the hands of her husband, but it is only in the extreme circumstances when all her hopes are frustrated and the dreams are likely to be vanished and she looses every love and affection at the hands of her husband or by his willful negligence. All these circumstances would certainly amount to abetment within the meaning of Section 109 punishable under Section 306 IPC. All these circumstances would certainly amount to abetment within the meaning of Section 109 punishable under Section 306 IPC. Similar observations were made in case Naveen Kumar V/s. State of Haryana 1998(3) R.C.R.(Criminal) 564 : 1998 (4) All India Criminal Law Reporter 28. 20. Undisputedly, death of the deceased had taken place while she was living with the accused and that she had died an un-natural death, therefore, presumption under Section 113-A of the Indian Evidence Act is certainly attracted. Section 113-A of the Act reads as under:- "Section 113-A : Presumption as to abetment of suicide by a married woman : When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, that court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband." 21. In the instant case, the deceased had consumed aluminum phosphide which she must be knowing being fatal to life. The story as set up by the accused that she was suffering from depression, therefore, she took the pills is not believable. It is improbable to believe that the deceased who was just in her early twenties could be a patient of depression as she was having three years old son in her lap to whom she would never like to part but it may be only on account of illegal acts and deeds of the accused, she may be suffering and thinking to take such drastic step. 22. There is no evidence on the record that she took the pills by mistake. The accused has not explained as to why she was compelled to end her life when a married lady after breaking ing her ties with the parental house enters the house of her husband, then law enjoins upon the husband to maintain and take care of her well being and it also further enjoins an obligation upon the husband to explain the circumstances, under which his wife committed suicide. It is the husband who has special means of knowledge about the circumstances in which she committed suicide, therefore, presumption of abetment under Section 113- A of the Indian Evidence Act is attracted. Similar observations were made in case Hans Raj and others v. State of Haryana 1997 (2) All India Criminal Law Reporter 465 wherein it was observed as under :- "So, what I mean to discuss is that when a lethal dose is taken or administered, it cannot be a case that one has taken the said substance by mistake. Even otherwise, this is not a case of the appellant that his wife took the presenelin tablets by mistake or that she complained of any uneasiness due to that. The accused is totally silent as to what was the conversation between him and the deceased before the deceased was found in precarious condition. So, if whole of the case is examined from this point of view, it becomes a definite case to say that it was not an accidental or incidental taking of pills by the deceased, rather it was a definite case of suicide. Secondly, accused has not stated a word as to what was the immediate communication between the two before the deceased was found in a precarious condition. Law enjoins upon the husband to explain the circumstances under which ones wife committed suicide. The law has been amended and the husband, who is supposed to have special means of knowledge about the circumstance in which ones wife dies, may not be able to conceal the same and, therefore, there is a presumption of abetment under Section 113-A of the Indian Evidence Act." 23. On critical analysis of the documents as placed on the record, the medical as well as the oral version led by the prosecution, despite that some improvement has been made by the complainant, yet, in an attempt to remove the chaff from the grain and reach the truth, he cannot be disbelieved to say that the accused having nexus with his brothers wife was not actually happy with the deceased, so dealt her with cruelty. The witnesses had the special means of knowledge about the behaviour of the accused vis-a-vis Baldev Kaur. The witnesses had the special means of knowledge about the behaviour of the accused vis-a-vis Baldev Kaur. Witnesses are consistent in their statements regarding the fact that Kulwant Singh had been harassing and maltreating and abetting the deceased and she was turned out of the house and Panchayat was convened. The accused has also not denied the fact that the deceased was under some depression. There is also a definite evidence that Kirpal Singh had persuaded the accused and his family members not to maltreat and harass her. The deceased being traditional lady always considered the house of her in-laws as sole abode to live and not to disturb her brother again. As such, she, compelled by the circumstances, took this drastic step which amounts to commission of suicide at the hands of the accused Kulwant Singh. Without commenting upon the conduct of the other two accused, since acquitted, and for want of any appeal by the State, it is observed that the accused is certainly guilty of offence under Section 306 IPC. 24. Resultantly, I partly accept the appeal, set aside the conviction and sentence awarded against the accused under Section 304-B IPC, convict him under Section 306 IPC and sentence him to undergo rigorous imprisonment for seven years and to pay fine of Rs. 5000/-. In default of payment of fine to further undergo rigorous imprisonment for six months. If, the fine has already been deposited, that would be considered to be for the offence under Section 306 IPC. The period of detention, if any, already undergone by the accused in this case shall be set off. 25. Copy of the judgment be sent to the Chief Judicial Magistrate, Hoshiarpur for compliance.