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2013 DIGILAW 864 (PNJ)

Desa Singh v. State of Punjab

2013-07-16

Mehinder Singh Sullar

body2013
JUDGMENT Mr. Mehinder Singh Sullar, J. (Oral):- The challenge in this appeal preferred by appellants-convicts Desa Singh and Gurdeep Singh sons of Tehal Singh (for brevity “the appellants”), is to the impugned judgment of conviction dated 19.3.2001 and order of sentence dated 20.3.2001, by virtue of which, the trial Judge has acquitted all the accused for the commission of an offence punishable u/s 304-B IPC. At the same time, the appellants were convicted and sentenced to undergo rigorous imprisonment (for short “RI”) for a period of five years, to pay a fine of Rs. 3000/- each and in default thereof to further undergo RI for a period of six months each u/s 306 IPC by the trial Court of Addl. Sessions Judge. 2. The matrix of the facts and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, as claimed by the prosecution, is that the marriage of Palo Bibi, daughter of Kakka Singh (PW3) was solemnized with appellant Gurdeep Singh son of Tehal Singh according to Hindu rites & ceremonies at village Sher Singh Wala. They resided together, cohabited as husband & wife and one son & one daughter were born out of their wedlock. Her father was stated to have given sufficient dowry articles at the time of marriage, but the accused were not satisfied with the same. The clothes, gold Kangan and other customary gifts were also stated to have been given to the accused at the time of birth of son Amrik Singh. Still, the accused were not satisfied and they started maltreating Palo Bibi. She had told her tale of woe to him. He (PW3) convened a panchayat. The accused reiterated their demand of colour TV and cooler etc. before the panchayat as well. 3. The case of the prosecution further proceeds that after about 6/7 months of the convening of panchayat, the accused again started maltreating and harassing Palo Bibi. She was in a family way and was done to death by the accused persons. Having received the information of death of Palo Bibi, her brother complainant Gurnam Singh (PW6) and his relatives went to her matrimonial home, where her dead body was lying on a cot. She was in a family way and was done to death by the accused persons. Having received the information of death of Palo Bibi, her brother complainant Gurnam Singh (PW6) and his relatives went to her matrimonial home, where her dead body was lying on a cot. He suspected that the death of Palo Bibi was caused by Gurdeep Singh, Dessa Singh and Tehal Singh accused on account of bringing insufficient dowry. He telephonically informed his father in Uttar Pradesh, who had lodged the complaint (Ex.P3) to SSP Ferozepur in this respect. 4. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that the death of Palo Bibi occurred otherwise than under normal circumstances on 16.7.1996 and soon before her death, she was subjected to cruelty and harassment by the accused for or in connection with the demand of dowry and they have committed the offence of dowry death. In the background of these allegations and in the wake of statement (Ex.P5) of complainant Gurnam Singh (PW6), the present criminal case was registered against the appellants and their other acquitted co-accused, vide FIR No.104 dated 5.11.1996 on accusation of having committed an offence punishable u/s 304-B IPC by the police of Police Station Guruharsahai, District Ferozepur in the manner depicted here-in-above. 5. After completion of the investigation, the final police report (challan) was submitted by the police against the appellants and their other co-accused to face the trial for the pointed offence. 6. Having completed all the codal formalities, the appellants and their other co-accused were charged for the commission of an offence punishable under section 304-B IPC, by way of charge sheet dated 20.8.1998 by the trial Judge. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 7. The prosecution, in order to substantiate the charge framed against the accused, examined PW1 ASI Pritam Singh and PW2 C.Kewal Singh, who have only tendered into evidence their respective affidavits (Ex.P1 & Ex.P2). PW7 SI Rachhpal Singh partly investigated the case and recorded the statements of PWs. PW8 HC Satnam Singh maintained that on 17.7.1996, ASI Pritam Singh deposited the sealed parcel containing viscera, envelope and other articles with him. On 22.7.1996, he again handed over some articles to PW1 for depositing the same with Chemical Examiner, Patiala. PW7 SI Rachhpal Singh partly investigated the case and recorded the statements of PWs. PW8 HC Satnam Singh maintained that on 17.7.1996, ASI Pritam Singh deposited the sealed parcel containing viscera, envelope and other articles with him. On 22.7.1996, he again handed over some articles to PW1 for depositing the same with Chemical Examiner, Patiala. PW9 SI Mukhtiar Singh has deposed that on 16.7.1996, he was present in village Vasal Mohan along with some other police officials, where Gurnam Singh son of Kakka Singh got recorded his statement (Ex.P5). He thumb marked the same in token of its correctness. He made his endorsement on it and sent the same to the police station. The proceedings u/s 174 Cr.PC were initiated. He prepared the inquest report (Ex.P6) in respect of deceased Palo Bibi. The dead body was sent for post mortem examination through ASI Pritam Singh. After post mortem examination, he handed over the sealed parcel containing clothes and bangles etc./ornaments duly sealed with seal impression SPK. These were taken into possession, vide memo (Ex.P7) attested by ASI Pritam Singh. 8. Sequelly, PW4 Dr.Surinder Paul Kataria along with Dr.Renu Singla conducted the post mortem examination (Ex.P4) on the dead body of Palo Bibi on 17.7.1996 at 10 PM. He sent the viscera for chemical examination. After receipt of report (Ex.P8) of Chemical Examiner, he opined that the cause of death was the result of organophosphorus group of insecticides. He informed the cause of death to SHO, vide writing (Ex.P5). 9. Likewise, PW5 Dalip Singh son of Lal Singh has stated that Palo Bibi d/o Kakka Singh was married at village Sher Singh Wala. No occurrence had taken place in his presence. He had only visited the inlaws’ house of Palo Bibi at the time of her death. No demand of any dowry articles was ever made by any of the accused in his presence. 10. The next to note is the testimony of PW3 Kakka Singh, who has, inter-alia, deposed, on oath, that the marriage of his daughter Palo Bibi was solemnized with Gurdip Singh accused at village Sher Singh Wala. They resided together, cohabited as husband & wife and one son & one daughter were born out of their wedlock. He had given sufficient dowry articles at the time of marriage, but the accused were not satisfied with the same. They resided together, cohabited as husband & wife and one son & one daughter were born out of their wedlock. He had given sufficient dowry articles at the time of marriage, but the accused were not satisfied with the same. The clothes, gold Kangan and other customary gifts were also given to them at the time of birth of son Amrik Singh. Still, the accused were not satisfied and they started maltreating Palo Bibi. She had told her tale of woe to him. She died an unnatural death. His son Gurnam Singh (PW6) informed him about her death. The police visited the Civil Hospital, but no case was registered against the accused. Then, he moved complaint (Ex.P3) to SSP Ferozepur, on the basis of which, the present case was registered. 11. The last to note is the testimony of PW6 Gurnam Singh, who has initially received the information with regard to the death of his sister Palo Bibi. Thereafter, he along with his relatives went to the house of Gurdip Singh accused, where the dead body of Palo Bibi was lying on the cot. There were abrasions on her back and swelling on her neck. He suspected her death to be caused by Gurdip Singh (husband), Dessa Singh (brother-in-law) and Tehal Singh (father-in-law) on account of bringing insufficient dowry. He made his statement (Ex.P5) to the police in this regard and thumb marked the same in token of its correctness. 12. After the close of the prosecution evidence, the statements of the appellants and their other co-accused were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, accused Gurdip Singh has denied the prosecution evidence in its entirety and pleaded false implication in the following manner:- “I am innocent. I have been falsely implicated in the instant case. Palo Bai died a natural death. She was vomiting prior to her death. We were going to shift her to the Civil Hospital and in the meantime she died.” 13. The same line of defence was adopted by other accused. The appellants, in order to prove the line of defence, have examined DW1 Smt.Krishana Rani, Addl. Ahlmad, who has brought the summoned record containing original surety bonds, which were attested & accepted by the then JMIC on 16.7.1996. The same line of defence was adopted by other accused. The appellants, in order to prove the line of defence, have examined DW1 Smt.Krishana Rani, Addl. Ahlmad, who has brought the summoned record containing original surety bonds, which were attested & accepted by the then JMIC on 16.7.1996. The correct certified copy of surety bonds is Ex.D4. The accused have also placed reliance on the copy of statement of Kakka Singh (Ex.D1), copy of statement of Harbans Singh (Ex.D2) and copy of statement of Tota Singh (Ex.D3). This is the entire evidence brought on record by the parties. 14. Taking into consideration the entire oral as well as documentary evidence brought on record by the prosecution, all the accused were acquitted for the commission of an offence punishable u/s 304-B IPC. At the same time, only the appellants were convicted and sentenced for the commission of an offence punishable u/s 306 IPC by the trial Judge in the manner described here-in-above. 15. The appellants still did not feel satisfied and preferred the present appeal to challenge the impugned judgment of conviction & order of sentence. That is how I am seized of the matter. 16. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant appeal deserves to be accepted in this context. 17. What cannot possibly be disputed here is that all the cogent cardinal fundamental principles and basic rules of criminal law/jurisprudence, have to be kept in focus while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against him. The criminal proceedings require strict proof of guilt. It is the legal evidence, on the basis of which, the decision of a criminal court is based and is the legal requirement of criminal justice. Otherwise, in the absence of cogent substantive evidence, the Courts have no option, but to record an order of acquittal howsoever painful the same may be. 18. It is the legal evidence, on the basis of which, the decision of a criminal court is based and is the legal requirement of criminal justice. Otherwise, in the absence of cogent substantive evidence, the Courts have no option, but to record an order of acquittal howsoever painful the same may be. 18. It is not a matter of dispute that all the accused were acquitted for the commission of an offence punishable u/s 304-B IPC. At the same time, only the appellants were convicted & sentenced u/s 306 IPC, which postulates that “If any person commits suicide, whoever abets the commission of such suicide, shall be punished therein.” The abetment of a thing has been defined u/s 107 IPC to mean that a person abets the doing of a thing, who instigates any person to do that thing; or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or intentionally aids, by any act or illegal omission, the doing of that thing. 19. Similarly, Section 108 IPC posits that a person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. 20. A conjoint and meaningful reading of these provisions would reveal that in order to attract the penal provisions of section 306 IPC, there should be a positive evidence on record that the appellants intentionally hatched a conspiracy or actually/actively aided and abetted in such a manner, leaving no option for Palo Bibi to commit suicide. It cannot possibly be disputed here is that each person’s sensitivity and suicidability pattern is different from the others. Each person has his own idea of self esteem and self-respect. Without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. 21. It cannot possibly be disputed here is that each person’s sensitivity and suicidability pattern is different from the others. Each person has his own idea of self esteem and self-respect. Without a positive act on the part of the accused to instigate or aid in committing suicide, there cannot be any conviction. 21. Meaning thereby, there has to be a clear mens rea, active participation or direct act and intention to provoke, incite or encourage to do an act by the accused, which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a grave position that he committed suicide. The knowledge, intention, mens rea, positive active participation leaving no option and compelling a person to commit suicide, inter-alia, are the essential ingredients to convict a person u/s 306 IPC. 22. Above being the legal position and evidence on record, now the short and significant question, though very important, that arises for determination in this appeal is, as to whether the prosecution has brought on record sufficient evidence in this relevant connection or not? 23. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has miserably failed to substantiate the charge u/s 306 IPC against the appellants as well. 24. As is evident from the record, that the marriage of Palo Bibi (deceased) was solemnized with appellant Gurdip Singh on 23rd Magha 1988 at village Sher Singh Wala according to Hindu rites and ceremonies. Appellant Dessa Singh is brother of appellant Gurdip Singh, who was residing separately and having his separate ration card. After solemnization of marriage, a son and a daughter were born out of their wedlock. She died an unnatural death on 16.7.1996. Originally, the present case was registered against the appellants, Tehal Singh & Kartaro Bai (parents-in-law), Veero Bai (sister-in-law of the deceased) and their relative Mal Singh. The story of the prosecution was found to be totally false and they were acquitted by the trial Court. In that eventuality, possibility of false implication of the appellants by the complainant in this case cannot be ruled out as well under the same set of circumstances. 25. Sequelly, the marriage of Palo Bibi was solemnized on 23rd Magha 1988 and she died an unnatural death on 16.7.1996. In that eventuality, possibility of false implication of the appellants by the complainant in this case cannot be ruled out as well under the same set of circumstances. 25. Sequelly, the marriage of Palo Bibi was solemnized on 23rd Magha 1988 and she died an unnatural death on 16.7.1996. No doubt, PW3 (father of deceased) and PW6 (brother of the deceased) have vaguely stated that she was killed by the appellants and their other coaccused on account of bringing insufficient dowry, but to my mind, no implicit reliance can be placed on their self serving statements and interested evidence. They failed to indicate as to when, how and in what manner, the accused demanded the dowry articles and maltreated Palo Bibi in this regard. Their statements are as vague and general as anything and no specific instance of demand of dowry is mentioned in their statements. The deceased remained with appellant Gurdip Singh in her matrimonial home from her marriage in 1988 to 16.7.1996 till her death. No iota of evidence, muchless cogent, is forth coming on record even to suggest remotely that the appellants had ever earlier treated the deceased with cruelty in connection with and on account of demand of dowry or that either she or her father (PW3) or brother (PW6) had ever made any written complaint to any authority in this relevant connection. They attempted to state that although sufficient dowry was given at the time of marriage of Palo Bibi, but the accused were not satisfied. They started maltreating her. A biradari Panchayat was convened, which was attended by Sarpanch Jarnail Singh of village Sher Singh Wala and Dalip Singh Sarpanch of village of complainant Ahmed Dhandi. There is no acceptable evidence on record to prove that any panchayat was convened as projected by PW3 and PW6. The prosecution did not examine Jarnail Singh Sarpanch, who was a material witness, for the reasons best known to it. No doubt, the prosecution has examined PW5 Dalip Singh son of Lal Singh, Ex-Sarpanch of village Ahmed Dhandi, but he did not support the claim of PW3 and PW6 that the appellants used to treat the deceased with cruelty in connection with and on account of demand of dowry. On the contrary, he (PW5) admitted that no occurrence had taken place in his presence. On the contrary, he (PW5) admitted that no occurrence had taken place in his presence. He had only visited the matrimonial home of Palo Bibi at the time of her death. No demand of any dowry article was ever made by any of the accused in his presence. That means, the solitary witness (PW5) did not support and demolished the version of complainant in its entirety. In this manner, the vague and general statements of PW3 and PW6 that all the accused used to maltreat the deceased pales into insignificance and are not sufficient even to convict the appellants for the commission of indicated crime. 26. There is yet another aspect of the matter, which can be viewed entirely from a different angle. The case of the prosecution from the very beginning is that having received the information of death of Palo Bibi at about 2.30/3.00 PM, complainant PW6 and his other relatives reached her matrimonial home at village Sher Singh Wala, where her dead body was lying on the cot. There was swelling on the neck and abrasions on the back side of her body. The statement (Ex.P5) of complainant was recorded by PW9 wherein he has neither raised any accusing finger towards nor uttered a single word against any of the accused with regard to cruelty to her in connection with and on account of demand of dowry. He has very vaguely suspected that the appellants & their father have murdered Palo Bibi by causing injuries to her. 27. Moreover, according to PW3, he is settled and had left for Uttar Pradesh (UP) about three years prior to the death of her daughter Palo Bibi. His son complainant Gurnam Singh (PW6) had gone to UP to inform him about her death, whereas PW6 maintained that he did not go to UP after the death of Palo Bibi. His father was telephonically informed about her death. After receipt of telephonic message, his father came in the village. He (PW6) had narrated the entire occurrence to him. He did not take his father to the police station. Thereafter PW3 made a complaint (Ex.P3) to SSP Ferozepur and the instant case was registered, vide FIR No.104 dated 5.11.1996 after a lapse of period of more than 3½ months. To me, this inordinate and unexplained delay is fatal to the prosecution case. 28. He did not take his father to the police station. Thereafter PW3 made a complaint (Ex.P3) to SSP Ferozepur and the instant case was registered, vide FIR No.104 dated 5.11.1996 after a lapse of period of more than 3½ months. To me, this inordinate and unexplained delay is fatal to the prosecution case. 28. Likewise, neither any specific instance of demand of dowry is mentioned in the complaint nor any specific role or overt act is attributed to the accused. The complaint (Ex.P3) is vague as well as the statements of PW3 & PW6 as regards the demand of dowry is concerned. Not only that, it has come in the evidence (cross-examination) of PW3 that he was settled and had left for UP about three years prior to the death of her daughter Palo Bibi and Gurnam Singh (PW6) had gone there (UP) to inform him. On the contrary, according to PW6, he did not go to UP and his father (PW3) was telephonically informed about her death. After receipt of telephonic message, he came to his village. On reaching there, he had narrated the entire incident to him. In other words, PW3 was not even in his village three years prior to the present occurrence. So, convening of any panchayat during the relevant period as projected by him did not arise at all. Above-all, his evidence is inadmissible being hear-say. It was complainant Gurnam Singh (PW6), who has subsequently narrated the incident to his father (PW3). Moreover, according to PW3 and PW6, the accused gave beatings and caused murder of Palo Bibi. The ocular version is totally contradicted to the medical evidence, whereas after considering the report (Ex.P8) of Chemical Examiner, Dr.Surinder Paul Kataria (PW4) opined that the death of Palo Bibi was as a result of organophosphorus group of insecticides. Preceding on these premises, the contentions of learned counsel for appellants that in this manner, there is an inordinate delay of more than 3½ months in lodging the FIR after due deliberations and consultation, which remained unexplained, to involve all the accused, have considerable force. To my mind, the trial Judge while ignoring these improbabilities and vital aspects of the matter, committed a legal mistake as well even in convicting the appellants u/s 306 IPC. 29. To my mind, the trial Judge while ignoring these improbabilities and vital aspects of the matter, committed a legal mistake as well even in convicting the appellants u/s 306 IPC. 29. Therefore, if the delay of more than 3½ months in lodging the FIR, absence of any cogent evidence of cruelty in connection with and on account of demand of dowry by the appellants, the fact that all the essential ingredients of section 306 IPC are deeply missing, inherent contradictions in the statements of PW3 & PW6 & medical evidence and totality of facts & circumstances emanating from the evidence on record as discussed here-in-above are put together, then, to me, the conclusion is inescapable and irresistible that the evidence brought on record by the prosecution falls short as is required to prove a criminal charge and it has miserably failed to bring guilt home to the appellants, which entails the benefit of doubt and acquittal to them as well in the obtaining circumstances of the case. 30. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 31. In the light of aforesaid reasons, the instant appeal is hereby accepted. Consequently, the impugned judgment of conviction & order of sentence are set aside. Having extended the benefit of doubt, the appellants are acquitted for the commission of an offence punishable under section 306 IPC as well. Needless to say, the necessary compliance and procedural consequences would follow. --------0.B.S.0------------