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PUSHPINDER SINGH ALIAS PUSHVINDER SINGH versus STATE OF PUNJAB.

High Court of Punjab and Haryana, Chandigarh

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Pushpinder Singh alias Pushvinder Singh v. State of Punjab. - CRA-S-213-sb-1993 [2006] RD-P&H 3389 (24 May 2006)

1 Crl.Appeal No.213-SB of 1993.

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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CRIMINAL APPEAL NO. 213-SB OF 1993.

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1. Pushpinder Singh alias Pushvinder Singh son of Sarjiwan Singh, aged 24 years; and

2. Sarjiwan Singh son of Bishan Singh, aged 60 years, both residents of Village Bhagi Bander (Since expired).

Versus

State of Punjab.

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Present: Shri J.S. Mann, Advocate, for the appellants.

Shri Narinder Kapoor, Assistant Advocate General, Punjab, for the respondent-State.

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R.S.Madan, J

This Criminal appeal has been directed by the two accused- appellants, namely Pushipinder Singh alias Pushvinder Singh and Sarjiwan Singh against the order of conviction and sentence dated June 05, 1993 recorded by the learned Sessions Judge, Bhatinda under Section 304-B of the Indian Penal Code, whereby he has convicted and sentenced both the accused- appellants to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 2000/- each and in default thereof to further undergo RI for six months.

In brief, the facts of the prosecution version as has been unfolded by Bharpur Singh (PW-3) are that they are five brothers and four sisters.

Karamjit Kaur since deceased happened to be one of the sisters, who was married to accused Pushpinder Singh on 25.03.1992. On the same day Charanjit Kaur, another sister of Bharpur Singh, who was aged 22 years at that time, was 2 Crl.Appeal No.213-SB of 1993.

also married to Narpinder Singh, younger brother of accused Pushpinder Singh.

An amount of Rs.1.50 lakhs was spent on these two marriages. The present occurrence took place in the house of the accused on 7.06.1992 at about 2 P.M.

It is alleged that about 5-7 days prior to the day of occurrence,Bharpur Singh had gone to the house of the accused after getting a message from his sisters that two accused were demanding scooter on the ground that the dowry given at the time of their marriage was inadequate. Bharpur Singh then made assurance to the accused by telling them that they had already spent a lot on the marriages of their two sisters, so it was not possible for them to incur further expenses.

However, Bharpur Singh gave assurance to the two accused that he would try to fulfill their demands within a short span and , therefore, they should not maltreat her sisters. It is further the case of the prosecution that on 7.6.1992 Bharpur Singh and his brother Malkiat Singh after making arrangements for the money for purchasing a Scooter, went to the house of the accused to give information in this regard. As soon as they entered the house they found that the accused had felled Karamjit Kaur in the Sabat of the house and her legs had been tied with a parna near the ankles and they noticed that the two accused were pressing the neck of Karamjit Kaur with a danda by holding it from either sides. Bharpur Singh and his brother Malkiat Singh raised lalkara asking the accused as to what they were doing. Thereupon the accused left Karamjit Kaur and ran away. Bharpur Singh and Malkiat Singh went near their sister and found that she had already expired. Leaving Malkiat Singh at the spot near the dead body, Bharpur Singh went to Village Lehri where he met Lambardar Niranjan Singh. He also gave information to the other members of his family about the death of Karamjit Kaur and from there he went to the Police Station for lodging the first information report, in the company of Niranjan Singh and Karnail Singh Ex-Sarpanch of the 3 Crl.Appeal No.213-SB of 1993.

Village. In the police station, the statement of Bharpur Singh was recorded and the arrived at the place of occurrence and found the dead body of Karamjit Kaur lying on the ground in the Sabat having her legs tied with a parna. The investigating officer prepared the inquest proceedings and after completing the other formalities at the spot, dispatched the dead body for post mortem examination. Both the accused were arrested during the investigation. Accused Pushpinder Singh when interrogated by SI Kewal Singh on 23.06.1992, suffered a disclosure statement that he had kept concealed the dang in the turiwala kotha in the other house and could get the same recovered. In pursuance of his disclosure statement, the accused got recovered the dang from the pointed place. After the completion of all the formalities, report under Section 173 of the Code of Criminal Procedure was submitted against both the accused.

On appearance of the accused before the court of learned Sessions Judge, Bhatinda, the accused were charged under Sections 302/34 and 304-B of the Indian Penal Code. The charges were read over and explained to the accused in vernacular, to which they pleaded not guilty and claimed to trial.

The prosecution in support of its case, in order to bring home the guilty of the accused, examined Dr.Kuldip Rai, Medical Officer as PW-1, who conducted the post mortem examination on the dead body of Karamjit Kaur on 8.6.1992 at 8.55 A.M. He found the following injury on the neck of the deceased:-

"Multiple laceration varying in size from 0.25 x 0.25 to 0.5 x 0.5 cm in size with an underlying contusion bluish in colour, 16 x 3.2 cm in size transversely placed, over the front of neck, extending from one angle of mandible to other angle of mandible".

4 Crl.Appeal No.213-SB of 1993.

As per the witness the body was moderately built, moderately nourished. The eyes were open, conjectivae was congested, face swollen, mouth open and rigour mortis was present. The doctor further gave the description of two more injuries in the following words:- "ligature marks 2 in number 22 x 1.25 cm in size around both ankle joint present. These were 1 on the right ankle and the other one left ankle joint".

On dissection of injury No.1 he found that there was sub- cutaneous eccymosis, thyroid cartilage was fractured.Hyoid bone was found fractured. On further dissection 1 arynx was found lacerated,neck vessels on both sides were found lacerated. Clotted blood was present. Trachea was congested and had forth".

From the various symptoms the witness gave opinion that the death resulted due to asphyxia as a result of these injuries which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. In answer to an important question by the learned Public Prosecutor he added that injury No.1 could be possible if the neck was pressed with a dang and injuries No. 2 and 3 could also be possible with a string if staring was having smooth surface. In the cross-examination this witness admitted that even in the case of hanging, the death is due to asphyxia and the same happens in case of strangulation.

PW-2 is Constable Karnail Singh. He provided the copy of the first information report having been delivered to the Magistrate in the form of a special report, on 7.6.1992 at 7.30 P.M. PW-3 Bharpur Singh is the complainant 5 Crl.Appeal No.213-SB of 1993.

of the case who reiterated the versions appeared in the earlier part of the judgment. In cross-examination, this witness stated that he did not mention in the Police Station that he arranged Rs.10,000/- from one Nasib Singh of Village Burj Bhalai on the basis of pronote. In the cross-examination he further stated that while going from his village to Village Bhagi Bander, is within the jurisdiction of Talwandi Sabo. He further stated that after the occurrence went to Village Talwandi Sabo because he was perturbed and wanted to consult his family members before reporting the matter to the police. He admitted that his sister Charanjit Kaur was residing in the same house at the time of occurrence.

Charanjit Kaur, his other sister also complained to him about the maltreatment given by the accused on account of inadequate dowry. Charanjit Kaur was not produced before the police with respect to the harassment given by the accused.

This witness categorically admitted that he did not tell to any body else because no body asked him. He admitted that at the relevant time when the accused were in the process of causing injuries to his sister, he did not intervene in the matter nor they tried to catch-hold of the accused and stopped them from giving dang blow to his sister Charanjit Kaur. He admitted that the accused did not specifically asked his sisters for any other articles except the Scooter. He denied the suggestion of the defense that the accused Pushvinder Singh was important and it was on this account that Karamjit Kaur committed suicide.

After the registration of the present case, the complainant filed a complaint in respect of the return of dowry articles. PW-4 Malkiat Singh is the brother of the complainant Bharpur Singh and he has corroborated the testimony of PW-3 Bharpur Singh in all respect. SI Jarnail Singh, PW-5 has partly investigated this case. PW-6 SI/SHO Kewal Singh took the investigation of the case on 23.6.1992 and completed the investigation of the case.

6 Crl.Appeal No.213-SB of 1993.

After the evidence of the prosecution was closed, the accused as envisaged under Section 313 of the Code of Criminal Procedure Code, were examined in which the entire incriminating evidence against against the accused was put to the accused, to which they pleaded innocence.

Accused Pushpinder Singh pleaded that his wife has committed suicide whereas accused Sarjiwan Singh pleaded that he is innocent.

In defense, the accused examined Janak Singh DW-1, Hardial Singh DW-2, Sukhdev Singh as DW-3 and tendered into evidence written statements Ex.DB and Ex.DC, before closing the defense evidence.

After hearing the learned counsel for the parties and going through the prosecution evidence and the defense version, the learned Sessions Judge, Bhatinda was of the view that there is a delaying in lodging of the first information report and the same is the outcome of confabulation and consultation. The learned Sessions Judge acquitted the accused under Section 302 of the Indian Penal Code but convicted and sentenced them under Section 304-B of the Indian Penal Code.

I have heard Shri G.S.Mann, learned counsel for the appellants and Shri Narinder Kapoor, Assistant Advocate General, Punjab.

At the very out-set, learned counsel for the appellant stated that accused-appellant No. 2, Sarjiwan Singh has expired on 28.11.1999 as per the death certificate issued by the Additional Registrar, Death and Births, Bhatinda.

The Photostat copy of which has been placed on the record. The authenticity of this certificate has not been denied by the prosecution. Accordingly, the proceedings against Sirjiwan Singh are dropped and the appeal abates.

Learned counsel for the appellant Shri G.S.Mann, contended that so far as the charge framed against the accused-appellants, under Section 302 7 Crl.Appeal No.213-SB of 1993.

read with Section 34 of the Indian Penal Code, is concerned, the accused- appellants have been acquitted by the learned Sessions Judge and no appeal has been preferred by the State against that order. Therefore, the appeal is limited only to the charge framed against the accused under Section 304-B of the Indian Penal Code for which they have been convicted and sentenced by the learned Sessions Judge, as already indicated above. In order to attract the provisions of Section 304-B, it was incumbent upon the prosecution to prove the three ingredients i.e.

i) that the death of the married woman was within seven years of the marriage;

ii) A little prior to death, her husband or relative on the point of demand of dowry subjected cruelty to her or harassed her; and iii) Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in normal circumstances".

In support of his contention reference was made to State of Rajasthan Versus Teg Bahadur, 2004(4) RCR (Criminal) (SC) 538.

According to the learned counsel when the trial court has disbelieved the presence of Bharpur Singh PW-3 and Malkiat Singh PW-4 at the spot (i.e. in the house of accused) on the date of occurrence and further that the story put forth with respect to their having witnessed the recovery of dang by the accused-appellant in pursuance of his disclosure statement, the question of believing their statement with respect to the offense under Section 304-B IPC is also not sustainable.

To lend support of his contention, the learned counsel submitted that if the statements of these witnesses are not taken into consideration then 8 Crl.Appeal No.213-SB of 1993.

there is no other eye witness examined by the prosecution to prove as to how Karamjit Kaur sufferred un-natural death in the house. Therefore, it can be safely concluded that the testimony of Pws Bharpur Singh and Malkiat Singh is a concocted one and that they have not come to the courts with clean hands. It has also come in the testimony of PW-3 Bharpur Singh that his sister Charanjit Kaur was married to Narpinder Singh the younger brother of the accused and after the present occurrence she had started living in their house. Thus it was Charanjit Kaur who was present at the house of the accused on the date of occurrence. It was she, who was in a position to disclose the factum of death of Karamjit Kaur and the manner in which she was killed or committed suicide.

Admittedly, Charanjit Kaur younger sister of Karamjit Kaur deceased was not produced before the police being the best evidence available with the prosecution rather she was not at all produced before the investigating officer to lend credance to the prosecution version. With-holding of the best evidence which was available with the prosecution, an adverse inference can be drawn against the prosecution. Another circumstance which disbelieved the version of the prosecution with respect to demand of Scooter by the accused, is that, when PW-3 Bharpur Singh visited the Village of the accused 5/6 days prior to the occurrence and his both the sisters i.e. Karamjit Kaur (since deceased) and Charanjit Kaur brought to the notice of their brother about the maltreatment given to them by the accused with respect to the demand of Scooter. It was because of that reason, that Bharpur Singh PW-3 had gone to Village Burj Bhilai from where he raised a loan of Rs.10,000/- from one Nasib Singh by executing a pronote Ex.PG. However, this part of the version of Bharpur Singh having arranged the amount of Rs.10,000/- from Nasib Singh of Village Burjpur Bhalai does not figure in his statement made to the police. Nasib Singh from whom the amount of 9 Crl.Appeal No.213-SB of 1993.

Rs.10,000/- was arranged wasw one of the material witness who could have thrown some light with respect to the urgency of loan raised by Bharpur Singh PW3 but he too has not been cited as a witness by the prosecution. Charanjit Kaur sister of Bharpur Singh was also an important witness who could have lend support to the prosecution version with respect to the demand of Scooter but here again Charanjit Kaur was not produced before the investigating officer by Bharpur Singh and his brother Malkiatg Singh.

In para N o.21 of the judgment, the learned Sessions Judge has observed "that there is delay in lodging of the first information report which was recorded some time during the night of 7/8.6.1992 or some time in the morning of 8.6.1992 and thus it was ante timed. The long delay which has been committed certainly gave an occasion to the prosecution to make a false version so as to arrange the presence of P.Ws from the other village and then to make them eye witnesses of the occurrence". Despite this observation of delay in lodging the first information report as well as that the prosecution had sufficient time to make out a false version against the accused, the version of the prosecution with respect to the commission of the offence by the accused under Section 304-B of the Indian Penal Code, is another attempt made by the prosecution to rope the accused falsely in this case.

Thus, according to the learned counsel when the best witness i.e.

Charanjit Kaur sister of Bharpur Singh who was married to the younger brother of Pushpinder Singh was available with the prosecution who could have thrown light on the incident which had taken place in the four walls of the matrimonial home, has been with-held by the prosecution, for the reasons best known to it, it is highly improbable and remains a mystery how the present accused-appellant would have committed the crime. Therefore, the present case cannot be termed 10 Crl.Appeal No.213-SB of 1993.

as a case of dowry death unless some cogent and convincing evidence would have been brought on the record. This case at the most can be termed as a blind murder or a case of suicide which has neither been seen by any one nor any evidence has come on the record that soon before her death, Karamjit Kaur was maltreated or tormented for or in connection with the demand of dowry. The prosecution was unable to explain as to how and in what circumstances Karamjit Kaur sufferred death.

On the other hand, the learned Assistant Advocate General, Punjab submitted that the death of Karamjit Kaur took place within 2/1-2 months of the marriage with the accused, is also not disputed. It is not disputed that she had died at the house of the accused, thus, it was for the accused-appellants to explain as to how and in what circumstances she (Karamjit Kaur) had died. The defense version regarding the impotency of the accused which lead to Karamjit Kaur to take such an extreme step of committing suicide is not believable and the same cannot be accepted.

No doubt that the deceased died in mysterious circumstances, an unnatural death and that too in the house of the accused, it was for the prosecution to prove as to how she had died. The medical evidence brought on the record suggest that ankle of Karamjeet kaur were tied with Parna because of legature mark itself prove that it was the accused who had committed the offence. Even the solitary demand of Scooter would prove that the accused were dowry seeks and Karamjit Kaur died for or in connection with demand of dowry within 2/1-2 months of the soleminisation of the marriage with the accused.

After hearing the submissions of the learned counsel for the parties I am of the view that once the learned Sessions Judge, Bhatinda has disbelieved the testimony of Bharpur Singh PW3 and Malkiat Singh PW4, 11 Crl.Appeal No.213-SB of 1993.

regarding their having witnessed the occurrence at the house of the accused and subsequent recovery of dang on the disclosure statement made by Pushpinder Singh accused, raised a further doubt with respect of the versions of the prosecution witnesses in respect to the demand of dowry by the accused.

Charanjit Kaur who according to PW Bharpur Singh PW-3, was also subjected to maltreatment at the hands of the accused, remained a mute spectator. She was the best witness who could have disclosed the actual life which the deceased and accused Pushpinder Singh had been leading in the matrimonial house but she had not been examined by the prosecution for the reasons best known to it.

Thus, even if it is assumed that Smt.Karamjit Kaur had suffered un-natural death at the house of the accused, it was incumbent upon the prosecution to prove beyond any shadow of doubt that Karamjit Kaur was subject to maltreatment prior to her death with respect to the demand of dowry by the accused soon before her death. Therefore, the accused-appellant Pushpinder Singh is given the benefit of doubt.

In the light of my above discussion, I am of the view that the prosecution has failed to lead any cogent and convincing evidence which connect the present appellants with the commission of crime. Accordingly, this appeal is accepted. The order of conviction and sentence recorded by the learned Sessions Judge, Bhatinda is hereby set aside. The accused-appellants are acquitted of the charges.

(R.S.Madan)

Judge

May 30, 2006.

Malik


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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