Balkar Singh and Another vs State of Punjab

V.S. Aggarwal, J.—"Throughout the Web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner''s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." (Woolmington and the Director of Public Prosecutions 1935 A C 462).

The age old dictum of prosecution to prove the case beyond all reasonable doubts has been exhibited not only in England, but the observations of the House of Lords have with practically no modification been adopted in the Indian jurisprudence with respect to criminal cases. The Supreme Court in the case of Sarwan Singh and Anr. v. State of Punjab, reported as All India Reporter 1957 S.C. 637, in a like manner regarding the same principle held:

"It is no doubt a matter of regret that a foul cold blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole the prosecution story may be true; but between ''may to true'' and ''must be true'' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence."

With the above background, the facts of the present case can conveniently be stated. Kamaljit Kaur is the deceased. She had seven sisters and only one brother Gurdev Singh. Appellant Balkar Singh is her husband. They were married about 11/2 years before her death. Appellant No. 2 Harbhajan Kaur is the mother of Balkar Singh.

On March 9,1992, Assistant Sub Inspector Mohinder Singh, Head Constable Baldev Singh and Constable Labhu Ram were present at the bus stop and patrolling the area. Gurdev Singh, brother of the deceased and Kishan Singh made a statement that the two appellants have committed the murder of Smt. Kamaljit Kaur, deceased. It was also mentioned that he had solemnised the marriage to the best of his capability and that the deceased was being harassed by the appellants for bringing insufficient dowry and for not bringing scooter, the coloured T.V. and Refrigerator etc. On the relevant date, as per the complainant''s statement, Gurdev Singh with Banta Singh, Member of the Panchayat and resident of village Ghambowal had gone to the village of the appellants. Ajit Singh Lambardar had met them. They saw that appellant Harbhajan Kaur caught hold of the deceased by her arms and appellant No. 1 had caught the deceased by her long hair. She was being given fist blows and was repeatedly being thrown on the ground. On seeing Gurdev Singh and Ors., Appellant No. 1 started beating her mercilessly and had threatened Gurdev Singh that in case he came near them he will be killed.

Both the appellants are alleged to have left the deceased half dead and subsequently she expired. On the basis of this statement, the First Information Report (F.I.R.) was recorded.

Post-mortem on the person of the deceased was conducted by Dr. Jarnail Singh, who found the following injuries on her person:-

"Length of body 5''-3"- dead-body of female, aged about 25 years, moderately built and, nourished and eyes were closed, Mouth was semi open, post-mortem staining and rigor mortis was present. Clothing-(1) printed yellow green shirt, (2) Salwar printed yellow-green, (3) Koti gray colour, (4) Shawal blue colour, (5) Kara steel, (6) Koka left side of nose, (7) Chain of silver". Injuries:

Lacerated wound 2 cms x 1 cm on right side of cheek 3 cms below ear lobule, on dissection the wound was superficial in nature.

Lacerated wound .5 cms x 0.5 cm on right pinna. The wound was superficial.

Abrasion 3 cms x 2 cms oh right elbow. Superficial. There were marks of intravenous pricks one right forearm and one on dorsum of hand."

Viscera had been retained. On receipt of the report of the Chemical Examiner, Dr. Jarnail Singh had opined that death was due to aluminium phosphide poisoning.

On August 4, 1992, learned Additional Sessions Judge, Hoshiarpur framed a charge against the appellants for the offence punishable u/s 102 read with Section 34 of the Indian Penal Code. In the alternative, charge was framed against the appellants with respect to the offence punishable u/s 104-B read with Section 34 of the Indian Penal Code.

Vide this impugned judgment and the order of sentence, the learned Additional Sessions Judge held the appellants guilty of the offence punishable u/s 304-B read with Section 34 of the Indian Penal Code and sentenced each of them to rigorous imprisonment for seven years. The learned Trial Court held that there was demand of dowry and on that account the deceased was harassed. It prompted her to consume aluminium phosphide. The defence version that the deceased was suffering from depressions and that she had been taken to a doctor on March 8, 1992, who administered glucose was repelled. The learned Trial Court felt that the two documents produced by the appellants do not come to their rescue. Presumption was drawn u/s 113-B of the Evidence Act and resultantly the Trial Court concluded that in such like offences, privacy of residential houses and secrecy is maintained, direct evidence is not easy to procure. Since the deceased expired within seven years of her marriage, the Trial Court has held that appellants had committed the offence punishable u/s 304-B read with Section 34 of the Indian Penal Code.

Aggrieved by the said judgment and the order of sentence, the present appeal has been filed.

Though the appellants have not been held guilty of the offence punishable under Sections 302/34 of the Indian Penal Code, but findings thereto have their rumblings on the subsequent discussions. Therefore, it becomes necessary to look at the said evidence. Gurdev Singh, PW 3 is the brother of the deceased. Pertaining to the incident of March 9,1992, the witness stated about the appellants assaulting the deceased and leaving her half dead. The statement in this regard in his own words in Court reads:

"On 9.3.1992,1 alongwith Banta Singh was going to Terkiana and short of the village, Ajit Singh Lambardar met us. Accompanied by him, we went to the house of the accused. The door of the house was only closed, but had not been chained and when we went inside, we found that Harbhajan Kaur accused had caught my sister from her arms, whereas Balkar Singh was giving fist blows to her. He was also hitting my sister against the ground. On seeing us he started giving more powerful injuries to my sister. Balkar Singh also threatened to teach me a lesson for bringing the Panchayat. Leaving my sister half dead, the accused went away and my sister died at the spot."

Surjit Singh, PW 4, is the other witness and he is the Lambardar of village Terkiana. He deposed before the Trial Court that on March 9, 1992, he was returning from Dasuya to his village. Gurdev Singh and Banta Singh met him. He accompanied them to the house of the appellant. They saw Harbhajan Kaur having caught hold of deceased from the arms and Balkar Singh was throwing the deceased on the ground. Thereafter, they ran away. Shortly thereafter, the deceased had expired.

Banta Singh, PW 5, is the last witness, examined in this regard. He had accompanied Gurdev Singh, P. 3 and as per his version, he found that in the house of the appellant, the deceased had been caught hold of by Appellant No. 2, Harbhajan Kaur and Balkar Singh was holding the deceased from her hair and was hitting her head against the ground. In their presence, the girl died and the appellants ran away.

Thus evidence of the prosecution was self-destructive. It is well-known that a principal witness or a person may act differently in a particular situation. No hard and fast rule can be laid down nor much can be stated as to why these witnesses did not intervene to save the deceased. All the same before the evidence as such can be disbelieved. There is no escape but to refer to the statement of Dr. Jarnail Singh. He conducted the post-mortem on the same day, i.e., March 9,1992, when the deceased is alleged to have left for the heavenly abode. In the opinion of Dr. Jarnail Singh, the probable time between the death and post-mortem was 24 hours. Thus Dr. Jarnail Singh had stated in an answer to the question by the State. The evidence would said that in any case the death could not take place on March 9, 1992 and thus what all the witnesses deposed about the date of the death and the assault was not correct. This conclusion that the witnesses in this regard were suppressing the truth, becomes apparent from the nature of the injuries that were found on the person of the deceased. They have already been mentioned above. It reveals that there were minor injuries on the person of the deceased, which includes lacerated wound on the right pinna and abrasion on the right elbow. The last injury was superficial. There is no iota of evidence about the serious injuries having been caused on the person of the deceased to cause her death. It was rightly thus to be contended that this was no reliable evidence with respect to the charges framed u/s 302 read with Section 34 of the Indian Penal Code.

As regards the provisions of Section 304-B of the Indian Penal Code, before proceeding further, it would be appropriate to refer to Section 304-B of the said Code. It is being reproduced below for the sake of facility:-

"304-B. Dowry death.-(1) Where the death of a woman 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 or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.- For the purposes of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

Since the death has occurred admittedly within seven years of marriage, a glance on provision of Section 113-B of the Evidence Act would also be appropriate, it reads as under:-

"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 purpose of this section, "dowry death'' shall have the same meaning as in Section 304-B of Indian Penal Code (15 of I860)."

Admittedly, the life of deceased came to an end otherwise than under normal circumstances, but it was for the prosecution to prove that she was subjected to cruelty or harassment in connection with any demand of dowry before one could draw the provision of Section 304-B of the Indian Penal Code. Similarly, presumption as to dowry death could be drawn provided it is shown by the prosecution that soon before her death, the deceased was subjected to cruelty or harassment in connection with any demand of dowry. These are the basic pre- requisites before the presumption contemplated could be drawn.

In this regard, to establish that the deceased was subjected to cruelty and harassment in connection with demand of dowry, Surjit Singh, PW 4, made a statement that it was a talk in the village that appellants were harassing the deceased for insufficient dowry. During cross-examination, he admitted that he had not himself, witnessed the appellants maltreating the deceased before March 9, 1992. In other words, what he told the learned Trial Court was based on hearsay and he had little knowledge about any such demand of dowry and harassment on that account.

Banta Singh, PW 5, pertaining to the demand of dowry, stated that after the festival of Lohri, they had gone to the house of the appellants and persuaded them to rehabilitate Kamaljit Kaur. They had agreed to keep Kamaljit Kaur. According to this witness, Ex. DA had been executed in his presence on January 26, 1992. Even in the presence of Banta Singh, there is no material that there was any demand of dowry. From a perusal of Ex. DA. which was produced by the appellants themselves, it is clear that there is no mention that there was any demand of dowry. In fact, there is a reference that if the deceased leaves the house on account of sickness or otherwise, the matter shall be referred to the Panchayat. In that view of the matter, the statement of this witness also does not establish about the demand of dowry.

So far as Gurdev Singh, brother of the deceased is concerned, indeed he states in clear terms that there was demand of dowry and on that account the deceased was being maltreated. He made a reference that appellants had started demanding a refrigerator and a television besides a scooter. It transpired in the cross-examination of the witness that appellant No. 1, Balkar Singh, after few months of the marriage, had gone to Saudi Arabia. He came back in December, 1991. When he came back from Saudi Arabia, he did not take back the deceased to his house till the compromise Ex. DA was arrived at. The case of Vadivelu Thevar Vs. The State of Madras, , still provides the guidelines. The Supreme Court concluded that generally speaking the oral testimony of a witness can be classified into three categories, namely witness who is wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable. The guidelines in appreciation were provided in paragraphs 11 and 12 and read:

"Generally speaking, oral testimony in this context may be classified into three categories, namely:

Wholly reliable.

Wholly unreliable.

Neither wholly reliable nor wholly unreliable.

(12) In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subordination. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony."

I have already held that with respect to the alleged incident of March 9, 1992, the prosecution version and the statement of Gurdev Singh is not correct. There was no evidence to show that the deceased was fatally wounded. Therefore, he cannot be described to be a wholly truthful witness. Corroboration would be required to the testimony of such a witness. When Gurdev Singh states that there was a demand of dowry, in that event the important fact to be mentioned is that there was no earlier history or complaint in this regard. In every matrimonial house, there may be some misunderstanding. It cannot be taken to be a dowry death. Ex. DB is the letter written by the deceased to Appellant No. 1 much prior to her death. It clearly shows that she was mentally upset, but there is no mention that there was a demand of dowry by any of the person. Gurdev Singh had further added that he had gone to the house of the appellants and explained to them that he was not in a position to meet their demands, but about the demand of dowry it is not corroborated by Buta Singh and Surjit Singh. The conclusions obviously are that when Gurdev Singh states that there was a demand of dowry when the compromise was arrived at is not correct.

The defence version in this regard also cannot be lost sight of. It is being pointed out that it was on March 8,1992 that the deceased was complaining of being not well. She was removed to the hospital and glucose was administered by Dr. Maingi. Dr. Jarnail Singh, PW 1 who conducted the post-mortem on the person of the deceased, endorsed the defence version that there were marks of intravenous pricks which show that the drip or some injection may have been given before the death of the deceased. The defence version thus proceeds that before the deceased could be removed to a better hospital she expired and that she was suffering from certain depressions. In face of the statement of Dr. Jarnail Singh, it is obvious that the deceased did not die as a result of what is being alleged by the prosecution. In fact, the plea of demand of dowry, so much alleged, is not proved. Consequently, the presumption u/s 113-B of the Evidence Act cannot be drawn.

Learned Counsel for the State had drawn my attention to the decision of the Supreme Court in the case of Smt Shanti and Another Vs. State of Haryana, . In the cited case, the accused person had driven the deceased out of their house and were demanding dowry. The body of the deceased subsequently had been cremated hurriedly without even informing the appellants. It was on these facts that the Supreme Court concluded that offence u/s 304-B of the Indian Penal Code was proved. The facts of the cited case are different and do not draw parity with the facts of the present case in hand.

As a result of the reasons given above, it is clear that keeping in view the jerks and jolts received by the case of the prosecution from the nature of the evidence produced it crashes under its own weight. The appellants in accordance with the well settled principle in the case of Sarwan Singh (supra) are entitled to the benefit of doubt.

For the reasons given above, I accept the appeal and set aside the judgment and the order of sentence passed by the learned Trial Court. The appellants are acquitted. They shall be set at liberty if not required in any other case.