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2014 DIGILAW 318 (PNJ)

Tarsem Kaur v. State of Punjab

2014-02-11

TEJINDER SINGH DHINDSA

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JUDGMENT Mr. Tejinder Singh Dhindsa, J.:- Both the appellants stand convicted under Section 304-B of the Indian Penal Code vide judgment dated 17.3.1999 passed by the Additional Sessions Judge, Ludhiana and have been sentenced to undergo rigorous imprisonment for a period of ten years each and also to pay a fine of Rs. 5,000/- each or in default, to undergo rigorous imprisonment for a period of three months. 2. The instant appeal has been filed impugning the judgment of conviction as also the order of sentence of the Additional Sessions Judge, Ludhiana carrying even date i.e. 17.3.1999. 3. Learned counsel for the appellant, at the very outset, would make a statement that he would not be assailing the conviction of the appellants on merits. He, accordingly, prays for indulgence only as regards quantum of sentence by citing that appellant No.1 is a lady, aged 70 years and appellant No.2 even though younger in age, but is a lady who has to take care of three minor children. Learned counsel would further apprise the Court that both the appellants have undergone custody of almost six years and three months each against the substantive sentence of ten years rigorous imprisonment. It is further contended that apart from conviction in the present case, the appellants are not involved in any other criminal proceedings and no case is pending against them. 4. Learned State counsel has produced the custody certificates of both the appellants. Appellant No.1, namely, Tarsem Kaur has undergone a total custody, including remissions of 6 years, 3 months and 19 days and insofar as appellant No.2 – Baldev Kaur is concerned, she has undergone a total custody, including remissions of 6 years, 2 months and 11 days. The assertion made on behalf of the appellants that they are not involved in any other criminal proceedings, has not been disputed on behalf of the State. 5. Learned State counsel would, however, oppose the intervention of this Court even as regards sentence by contending that under Section 304-B of the Indian Penal Code relating to dowry death, the punishment envisaged is imprisonment of not less than seven years, which may extend to imprisonment for life. 5. Learned State counsel would, however, oppose the intervention of this Court even as regards sentence by contending that under Section 304-B of the Indian Penal Code relating to dowry death, the punishment envisaged is imprisonment of not less than seven years, which may extend to imprisonment for life. As such, it is submitted that both the appellants have undergone less than the minimum imprisonment of seven years i.e. the punishment prescribed under Section 304-B and prays for rejection of the prayer made on behalf of the appellants. 6. Having heard learned counsel for the parties at length, I am of the considered view that the appellants are entitled to a lenient view insofar as the sentence is concerned. 7. In view of the fact that the learned counsel has himself suffered a statement that he is not assailing the conviction of the appellants on merits, there would be no necessity to dilate upon the facts of the case which otherwise are carried out in the impugned judgment dated 17.3.1999 passed by the Additional Sessions Judge, Ludhiana. Suffice it to notice that appellants No.1 and 2 were the mother-in-law and sister-in-law respectively of deceased Satnam Kaur who were tried in respect of the occurrence which took place on 20.3.1996. Case of the prosecution was that appellant No.1 had caught hold of Satnam Kaur from her arm while appellant No.2 Baldev Kaur had sprinkled kerosene oil from the stove on her clothes and thereafter set her ablaze. 8. The mitigating circumstances that would weigh with this Court are that appellant No.1 is a lady who is presently 70 years of age. Appellant No.2 is also a lady with three minor children to look after. As per custody certificate produced in Court, appellant No.1 has undergone a total custody including remissions of 6 years, 3 months and 19 days, whereas appellant No.2 has undergone a total custody including remissions of 6 years, 2 months and 11 days. Undisputedly, the petitioners are not involved in any other case and no criminal proceedings are pending. That apart, the appellants have faced the pangs of a protracted trial extending to more than a decade. 9. It would be pertinent to take note of a peculiar situation that has arisen in the case which has weighed heavily with this Court to take a view in favour of the appellants as regards sentence is concerned. 10. That apart, the appellants have faced the pangs of a protracted trial extending to more than a decade. 9. It would be pertinent to take note of a peculiar situation that has arisen in the case which has weighed heavily with this Court to take a view in favour of the appellants as regards sentence is concerned. 10. In the impugned judgment of conviction, the Additional Sessions Judge has recorded a finding to the following effect: “The death in the present case, is not a natural death. No evidence is forthcoming on the file that the accused ever raised demand of dowry from the parents of Satnam Kaur deceased or from her brothers. PW1 Fauza Singh has not uttered even a word in his statement that the accused ever raised the demand of dowry from the deceased or from him. No case under Section 304-B of Indian Penal Code is, therefore, made out against accused an alternative charge under Section 302 of Indian Penal Code was framed against the accused. Now it has to be seen whether the prosecution has succeeded in bringing home to the accused, their guilt and if so under what sections of Indian Penal Code. The definition of culpable homicide is given under section 299 of Indian Penal Code, which reads as under: “Whether causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” The definition of murder as given under section 300 of Indian Penal Code clauses III and IV are relevant which reads as under:- III. If it is done with the intention of causing bodily injury to any person and bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or IV. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death of such injury as aforesaid. There are cases where the life of a person even with 85% burns can be saved. There are cases where the life of a person even with 85% burns can be saved. In the present case, the burn injuries were inflicted to deceased Satnam Kaur on 20.3.95 at about 9 A.M. and she expired on 25.3.96 at about 6.40 P.M. The case, therefore, falls within the ambit of section 299 of Indian Penal Code which is punishable under Section 304 of Indian Penal Code which is lessor offence of Section 302 of Indian Penal Code.” 11. A perusal of the afore - re-produced portion of the judgment makes it apparent that the trial Court has recorded a finding that no case under Section 304-B of the Indian Penal Code has been made out against the accused. Rather the finding is that the case falls within the ambit of Section 299 of the Indian Penal Code i.e. culpable homicide not amounting to murder and the trial Court further observes that the same is punishable under Section 304 of the Indian Penal Code. However, in the concluding portion of the judgment, the conviction has been directed under Section 304-B of the Indian Penal Code and it has been held in the following terms: “.......From the evidence led in the case and discussed above, the prosecution has proved its case beyond any doubt under Section 304-B of Indian Penal Code and I convict the accused accordingly under Section 304-B of the Indian Penal Code.” 12. Such anomalous situation can only lead to one inference that there has been a typographical error while recording a conviction under Section 304-B of the Indian Penal Code inspite of having recorded a categoric finding in para 9 of the judgment that “no case under Section 304-B of the Indian Penal Code is, therefore, made out against accused”. 13. As such, I am of the considered view that there would be no impediment in taking a lenient view insofar as the sentence awarded to the appellants is concerned and to reduce the same to the one already undergone. 14. For the reasons recorded above, the instant appeal is disposed of by maintaining the conviction of the appellants but reducing their sentence to the one already undergone subject to deposit a fine of Rs.5,000/- each as has been directed by the trial Court in the order of sentence dated 17.3.1999. 15. Appeal disposed of accordingly. ---------0.B.S.0------------