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2010 DIGILAW 2421 (PNJ)

Surinder Kumar v. State Of Punjab

2010-08-24

JITENDRA CHAUHAN

body2010
Judgment Jitendera Chauhan, J. 1. This appeal is directed against jugment and order dated 21.5.2008 passed by the learned Additional Sessions Judge, Ferozepur (hereinafter referred as "Trial Court") whereby in case FIR No. 103 dated 3.5.2006 registered at Police Station Sadar, Ferozepur, the accused-appellant has been convicted under Section 304-B of the Indian Penal Code and sentenced to undergo imprisonment for a period of ten years. 2. The brief facts, as narrated in paras 2 and 3 of the judgment of learned Trial Court, are that : "Savinder Singh son of Dalip Singh is complainant in this case. His daughter Reetu was marrried to accused Surinder Kumar on 2.2.2006. Sham Lal (PW 2) was the mediator in the marriage. The complainant - father of the deceased had given sufficient dowry in the marriage including gold ornaments, as per his capacity, but the accused and his family members were not satisfied with the dowry. At the time of Milni ceremony, Mamta, mother of the accused insisted to give gold ring to her son Paramjit Singh, who is serving in BSF. The complainant had to fulfil the demand of Mamta. After the `Muklava, the accused along with mother, brother and sisters went to take Reetu at Amritsar and Reetu deceased came to her in-laws house with them. Sham Lal, Meditor has told the complainant that the accused and his mother, brother and sisters told him that he (complainant) had not given dowry in the marriage as per their status. The complainant showed his inability to fulfil their demand of more dowry. Then the accused and his family members started torturing the deceased Reetu and they were pressing her for bringing more dowry. The complainant has further stated in his report that his daughter Reetu used to inform him about maltreatment and beating given to her by the accused and his family members for not bringing sufficient dowry. At one stage, his daughter had informed him that her husband had asked the maid servant not to do any work, as a result she was to do entire house hold work; whereupon, the complainant and his wife came to the house of the accused at Ferozepur where again Reetu told him that the accused and his family members are maltreating and beating her on account of bringing less dowry. But the complainant showed his inability to fulfil the demand raised by the accused for bringing more dowry and went back to Amritsar. On 31.3.2006, the complainant received a telephonic message from his daughter Reetu that her in-laws were maltreating and harassing her on account of bringing less dowry. On the next day i.e., 1.4.2006, the complainant and his wife again came to the house of the accused where his daughter told him that her husband had given her beating; whereupon, he talked with her mother- in-law Mamta and went back to Amritsar. On 1.5.2006 early in the morning, the complainant received a telephone from his daughter, who repeated the entire episode and called him at Ferozepur. Again on 2.5.2006, his daughter called the complainant at Ferozepur. According to the complainant, on the same day at 8.00 p.m. Darshan Singh, landlord of the accused in whose house the accused is tenant, informed him about the death of his daughter and asked him to come immediately. Then the complainant reached Ferozepur and on coming to know that dead body of his daughter was lying in Civil Hospital, Ferozepur, he reached there. On receipt of ruqa from Civil Hospital, Ferozepur, ASI Jaswant Singh along with other police officials reached there and recorded statement Ex. P1 of Savinder Singh; whereupon, he made his endorsement Ex. P1/A and sent the same to the police station on the basis of which formal FIR Ex. PA/2 was registered against the accused. Then ASI, Jaswant Singh prepared inquest report Ex.P6 of the dead body and sent the dead body for conducting post- mortem examination along with an application Ex. P4. Investigations of this case were taken in hand by ASI Jaswant Singh (PW 7). He visited the place of occurrence along with the complainant and prepared rough site plan Ex. P7. He took into possession two pieces of `Saree" worn by the deceased, vide memo Ex. P2. After post -mortem report, ornaments i.e. nose pin, ring of silver and cut-pieces of `Chura were produced before him which were taken into possession vide memo Ex. P8. On 8.5.2006, accused Surinder Kumar was arrested in this case. After completion of necessary investigative formalities, challan against the accused was presented for his trial under Section 304-B of the IPC". 3. After post -mortem report, ornaments i.e. nose pin, ring of silver and cut-pieces of `Chura were produced before him which were taken into possession vide memo Ex. P8. On 8.5.2006, accused Surinder Kumar was arrested in this case. After completion of necessary investigative formalities, challan against the accused was presented for his trial under Section 304-B of the IPC". 3. The accused-appellant was charge-sheeted for the offence under Section 304-B of the Indian Penal Code to which he pleaded not guilty and claimed trial. 4. In support of its case, the prosecution examined as many as seven witnesses, viz., complainant Savinder Singh as PW 1, Sham Lal as PW 2, Baldev Singh as PW 3, Mahesh Singh as PW 4, Dr. Aman Sood as PW 5, Randhir Singh, Draftman as PW 6 and ASI Jaswant Singh as PW 7. 5. PW 1-complainant Savinder Singh has stated that the deceased was maltreated and harassed by the accused-appellant for her having brought inadequate dowry and she was compelled to end her life. PW 2 - Sham Lal re-iterated the version of PW 1. PW 3-Baldev Singh is a Granthi of Gurudwara at Amritsar and he solemnized the marriage of accused-appellant Surinder Kumar with Reetu according to Sikh rites. PW 4-Mahesh Singh is a formal witness. PW 5-Dr. Aman Sood had conducted post-mortem of the deceased and proved post-mortem report, Exhibit P3 and pictorial diagram. Exhibit P3/A. According to him, the cause of death in this case was asphyxia as a result of hanging with a rope. PW 6- Randhir Gupta, Draftman had prepared the scaled site plan and proved the same as Exhibit P5. PW 7-ASI Jaswant Singh, the Investigating Officer, has deposed about the investigative part of the case and proved all the documents and memos prepared during the investigations. 6. Statement of the accused-appellant was recorded under Section 313 of the Code of Criminal Procedure in which he denied the allegations levelled against him and pleaded his false implication. The accused-appellant took up the plea that at the time of alleged occurance, his wife was pregnant and she wanted to abort that pregnancy to which he was not agreed and that is why she committed suicide. In defence, the accused-appellant examined Head Constable Darshan Singh as DW 1. 7. The accused-appellant took up the plea that at the time of alleged occurance, his wife was pregnant and she wanted to abort that pregnancy to which he was not agreed and that is why she committed suicide. In defence, the accused-appellant examined Head Constable Darshan Singh as DW 1. 7. Upon appreciation of evidence adduced on record, the learned Trial Court convicted and sentenced the accused-appellant in the manner indicated above in the outset. 8. Hence this appeal. 9. Learned Counsel for the appellant has argued that the complainant has nowhere specified about the alleged demand of dowry nor the description of the dowry articles given at the time of marriage, has been furnished. In the same manner, there is no specific degree and nature of alleged harassment and the torture suffered by the deceased at the hands of the appellant. Learned counsel has further argued that the appellant or any of his family members have never demanded any dowry either before or at the time of marriage. The alleged demand of more dowry, as mentioned by the complainant, cannot be connected with the marriage and, therefore, it does not fall within definition of `dowry as described under the Dowry Prohibition Act. 10. Learned counsel for the appellant has further contended that the marriage in question was the second marriage for both i.e, the appellant as well as the deceased. Therefore, this being a second marriage, It was just a simple marriage ceremony without exchange of dowry articles. Learned counsel has further stated that the complainant being a Head Constable in Police Department has misused his position and influenced the investigation. The influence is clearly made out from the interpolation in Exhibits PX and P3, post mortem report which remained unexplained by the Investigating Officer. The learned counsel has further submitted that the photograps taken during the spot inspection by ASI Jaswant Singh were intentionally withheld and were not placed on record in order to conceal the evidence which was favourable to the appellant. 11. Learned counsel for the appellant has further argued that in a case under Section 304-B of the Indian Penal Code, as per provisions of Section 113-B of the Indian Evidence Act, 1872, the onus in on the accused to prove himself not guilty. The appellant, in the present case, has successfully explained and proved the circumstances mitigating the occurrence of suicidal death of Reetu. The appellant, in the present case, has successfully explained and proved the circumstances mitigating the occurrence of suicidal death of Reetu. It is the case of the appellant that Reetu (deceased) had committed suicide, as she was pregnant and wanted to abort the child, to which the appellant did not agree. In the statement recorded under Section 313 of the Code of Criminal Procedure, the appellant has taken a specific stand that he along with deceased, had been living separately and the rest of his family members were living at Jammu. Therefore, the alleged version of complainant regarding the torture of deceased on account of demand for dowry at the hands of her in-laws is not trust worthy and deserves to be disbelieved outrightly. Moreover, at the time of the occurrence, the appellant was not present at home. 12. Learned counsel has further referred to the statement of Darshan Singh, DW1, the owner of the house where the occurrence had taken place. The said witness has deposed that on 2.5.2006, deceased Reetu was found hanging in the room. It has further come in his statement that the door was bolted from inside. The door was broken open and the deceased was removed to the hospital. In the fact situation, the learned counsel has argued that no reason has been cited by the learned Trial Court for discarding the cogent and reliable evidence of DW1-Darshan Singh. All the prosecution witnesses, being immediate family members of the deceased, were interested witnesses. 13. Lastly, the learned counsel has argued that no opinion of any expert was sought or is available on record showing that the deceased was hanged by some other person and that she did not hang herself. 14. Learned State counsel has submitted that the death has taken place only within three months of the marriage, on account of demand of dowry and the case of the prosecution is proved beyond reasonable doubt. 15. I have heard learned counsel for the parties and perused the records of the case with their able assistance. 16. Admittedly, there is no specific instance, either with regard to giving of dowry articles or the time when the demand of dowry was raised by the appellant. The Investigating Officer, ASI Jaswant Singh has also admitted that no dowry article was recovered, which also supports the defence version that it was a simple marriage. 16. Admittedly, there is no specific instance, either with regard to giving of dowry articles or the time when the demand of dowry was raised by the appellant. The Investigating Officer, ASI Jaswant Singh has also admitted that no dowry article was recovered, which also supports the defence version that it was a simple marriage. From the record, it is apparent that the Investigating Officer has made cutting in Exhibit PX and changed the date from 3.5.2006 to 8.5.2006. There are also cuttings in the post-mortem report, Exhibit P3 and coupled with the statement of Head Constable Darshan Singh, DW1, in whose house the appellant and deceased were living as tenant, it is proved that door was bolted from inside and the same was broken and Reetu was taken out and removed to the hospital by him. In the circumstances, the fact that the appellant subjected the deceased to cruelty, and hanged her, for and in connection with the demand of dowry, appears to be against the record and the same does not inspire confidence. There is material evidence supporting the fact that the complainant, being a police official, had influenced the course of investigation. No plausible evidence has been produced by the prosecution to prove that the deceased was subjected to cruetly and hanged by the appellant for or in connection with the demand of dowry. In other words, the main ingredient to constitute the commission of offence of dowry death has not been established, what to speak of it being proved beyond a reasonable doubt. Therefore, I have no hesitation in holding that the conviction of the appellant for an offence under Section 304 of the Indian Penal Code is bad in law and liable to be set aside. 17. PW1 - complainant Savinder Singh, father of the deceased was a Constable and the fact that he has influenced the investigation is patently clear from the fact that the photographs taken during the spot inspection were withheld by the prosecution, whereas there is no explanation for withholding the production thereof in the trial Court by the prosecution. 18. From the statement of DW 1-Darshan Singh, the house-owner, it is established that the door was bolted from inside. After hearing the noise, the door was broken and the deceased was removed to the hospital by him. 19. 18. From the statement of DW 1-Darshan Singh, the house-owner, it is established that the door was bolted from inside. After hearing the noise, the door was broken and the deceased was removed to the hospital by him. 19. It is further proved that deceased Reetu committed suicide in her matrimonial home on 2.5.2006, where only the deceased and her husband were living. Neither the parents nor brother of the appellant was residing with them. The defence of the appellant that the deceased was pregnant and wanted to abort without consent and permission of the appellant cannot be ruled out. It is further noticed that the marriage between the appellant and the deceased was performed three months before the occurrence. It is also not disputed that the deceased committed suicide in her matrimonial home on 2.5.2006. Therefore, she ended her life within seven years of the date of her marriage. This duly established fact goes to constitute the offence under Section 396 of the Indian Penal Code. According to Section 306 of the Indian Penal Code, 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. 20. Section 113-B of the Indian Evidence Act, 1872 reads as follows : "113-B, Presumption as to dowry death - When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death." Explanation - For the purposes of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860).] 21 In view of the above discussion, the present appeal succeeds in part and conviction of the appellant under Section 304-B of the Indian Penal Code is hereby set aside. Instead, he is convicted for an offence under Section 306 of the Indian Penal Code and sentenced to the period already undergone by him. However, an amount of Rs. 15,000/- is imposed upon the appellant as fine, which shall be paid to the complainant. Instead, he is convicted for an offence under Section 306 of the Indian Penal Code and sentenced to the period already undergone by him. However, an amount of Rs. 15,000/- is imposed upon the appellant as fine, which shall be paid to the complainant. The accused-appellant shall deposit this amount before the Chief Judicial Magistrate, Ferozepur within a period of three months from the date of receipt of a copy of this order. 22. In case, the appellant fails to comply with the direction of depositing the amount of enhanced fine with the concerned Court within the period stipulated above, this appeal shall be deemed to have been dismissed. 23. With the above modification in the sentence, the present appeal stands disposed of.