Khushwinder singh and Another vs State of Punjab

Satish Kumar Mittal, J.—The petitioners, who are accused and are facing trial in case FIR No.22 dated 19.02.2004 under Sections

302/148/149/120B IPC and Sections 25/ 27/30/54/59 of the Arms Act, registered at Police Station Rampura, have filed this revision petition

praying for setting aside the order dated October 16, 2006, passed by Additional Sessions Judge, Bathinda, recalling two prosecution witnesses,

namely Nand Kishore (PW5) and Vijay Kumar (PW6) for their re-examination on an application filed by Nand Kishore, one of the witnesses, u/s

311 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'').

In this case, on the statement of Nand Kishore, the aforesaid FIR was registered immediately after the alleged occurrence. It was stated by the

complainant that he and his elder brother Darshan Kumar deceased were liquor contractor in the area of Rajpura, Bhagta, Kotkapura, Jaito,

Bajakhana circle. On 19.02.2004, they along with driver Gura Singh had gone to Rampura Mandi, where they were having a rented house. After

checking the accounts, they were going back to Bajakhana and the car was being driven by Darshan Kumar and when they reached the kacha

drain bridge, a white Santro car came from the front side and stopped near their car. The said car was being driven by Inderjit Singh Bhatia. It was

further stated by the complainant Nand Kishore that Khushwinder Singh and Nirmaljit Singh (petitioners herein), who were sitting in the car, came

out having pistols in their hands. Both of them fired from their respective weapons and killed Darshan Kumar, brother of the complainant. It was

further stated in the FIR that the murder of Darshan Kumar was planned by Prabjinder Singh alias Dimpi son of Amarjit Singh, who was also

having liquor business in the area and was having some money dispute with them. It was also stated by the complainant that he got a case u/s 307

registered against them at Police Station Jaitu, which was later on cancelled.

During the investigation of the instant case, on the disclosure statements of the petitioners, the weapons used in the alleged offence were

recovered. Thereafter, the challan was filed and charges framed, and now the petitioners along with other accused are facing trial.

During trial, Nand Kishore and Vijay Kumar were examined by the prosecution as PW5 and PW6, respectively. They did not support the

prosecution version and were declared hostile. They were permitted to be cross examined by the Public Prosecutor. Subsequently, at a later stage,

when the prosecution evidence was going on, PW5 Nand Kishore filed an application u/s 311 of the Code for re-calling him as well as PW6 Vijay

Kumar for their re-examination in the interest of justice and for just decision of the case on the ground that earlier they could not depose true facts

before the court, as they were under threat of elimination by the accused, who are influential persons and have criminal nexus with terrorists. it was

stated that kingpin of the offence Prabjinder Singh alias Dimpi, under whose threat they did not depose true facts before the court, has now

expired, therefore, the terror of threat in their mind has been reduced and in the changed circumstances, they be permitted to be re-examined in the

court. In the application, the complainant also produced copies of DDRs dated 16.10.2004 and 08.11.2004 showing that the witnesses were

threatened by the accused in order to prevent them from deposing against the accused. The affidavit of Vijay Kumar witness was also produced to

show that earlier, he avoided to depose against the accused for saving his family from being killed.

The trial court, by following the law laid down by the Supreme Court in Mohanlal Shamji Soni v. Union of India and another, 1991(1) SCC 271

and U.T. of Dadra & Haveli & Anr v. Fatehsinh Mohansinh Chauhan, 2006(4) CCC 024 (S.C.): 2006(4) RCR(Cri) 113 and the decision of this

Court in State of Haryana v. Ram Parshad, 2006(2) CCC 746 (P&H) : 2005(4) RCR(Cri) 976 (P&H) , allowed the said application and

observed that in the facts and circumstances of the case, PW5 Nand Kishore and PW6 Vijay Kumar were under threat of elimination at the hands

of the accused and, therefore, their re-examination is necessary for just decision of the case. The said order has been challenged in this revision

petition by the accused.

Counsel for the petitioners submits that the allegation of alleged threat by the accused to the witnesses is totally baseless. Actually, both the

witnesses deposed freely before the court exonerating the accused from the alleged crime. They did not support the prosecution version

voluntarily. Thereafter, they were declared hostile and were permitted to be cross examined by the Public Prosecutor. Counsel submits that

Whenever Bhimabai came to her parental home, she used to complain that for some domestic reasons she was being harassed. When she had

visited her parental home on the last occasion, she had said that her husband Appasaheb had asked her to bring Rs. 1,000-1,200/- for domestic

expenses and for purchasing manure as he had no sufficient money. Bhimabai had complained to him that she was not being given proper food,

clothing''s and even footwear and occasionally the appellant No.1 used to bear her. The last time she visited her parental home was during the

festival of Nag Panchami and at that time she looked depressed. The witness has further deposed that on the date of incident, a man came from

village Palshi on motorcycle and informed that he should immediately go there as Bhimabai was not well. He then went to village Palshi along with

other persons of his family where he reached after sun set. He saw that Bhimabai was lying dead and froth was coming out of her mouth which was

smelling of Thimet (insecticide). In his cross-examination he has admitted that his statement that he had given Rs.20,000/- in dowry at the time of

marriage was incorrect and in fact he had given Rs.5,000/ - as dowry and the total expenses incurred in the marriage was about Rs.20,000/ -. He

has also deposed that it was after about 1-1/2 years of marriage that Bhimabai first complained to him about the harassment being caused to her.

There used to be some bickering in the marital life of Bhimabai and her husband on trifling matters. He has admitted that it was appellant No. 1

who had sent a person on motorcycle who had given information regarding Bhimabai being unwell and that both the appellants were present at the

time of her funeral. PW.2 Babaji is real brother of father-in-law of PW. 1 Tukaram. He has deposed that on an earlier occasion he had gone along

with PW.1 and some others to the house of appellant No. 1 to persuade him not to harass Bhimabai and to treat her well. In his cross-examination

he has admitted that when he had gone to village Palshi to talk with the appellants regarding the ill-treatment being meted out to Bhimabai, there

was no talk regarding monetary giving and taking. He also admitted that he had not gone to attend the funeral of Bhimabai. PW.5 Sumanbai is the

mother of the deceased Bhimabai. She has stated in her examination-in-chief that Bhimabai was being ill-treated by the appellants and the reason

for ill-treatment was that they were demanding money to be brought from her parental home. The last time Bhimabai visited her parental home was

on the occasion of the festival of Nag Panchami and she had complained that she was being ill-treated and was sometimes given beating for

bringing money from her parents. She has specifically stated that for a period of six months after the marriage, Bhimabai was treated well and

thereafter she had started complaining about the harassment being caused to her. In her cross-examination, PW.5 Sumanbai has stated that after

news about the condition of Bhimabai was given by a man from village Palshi, she along with her husband and some other relations went there and

noticed that Bhimabai was lying dead in the house and froth was coming out of her mouth. She was further stated that she did not make any

enquiry as to how Bhimabai had died. In her statement u/s 161 Cr.P.C. which was recorded very next day of the incident i.e. on 16.9.1991 she

did not state that cause of ill-treatment was ""a demand for money and a consequent beating"". When confronted with her aforesaid statement u/s

161 Cr.P.C. she replied that she did not know why there was no mention in the said statement that the cause for ill-treatment was ""a demand for

money and a consequent beating"". She further stated that it will be correct to say that her daughter was receiving ill-treatment as a result of

domestic cause"". The learned trial Judge then sought clarification from the witnesses by putting the following question -.-

Que :-What do you mean by ""domestic cause""?

Ans:- What I mean was that mere was a demand for money for defraying expenses of manure etc. and that was the cause.

In the very next paragraph she stated as under :-

It is not true to suggest that in my statement before the police I never said that ill-treatment was as a result of demand for money from us and its

fulfillment. I cannot assign any reason why police did not write about it in my statement.

PW.3 Sandu, Police Patil of village Palshi has deposed that at about 4.20 p.m. on 15.9.1991, Narayan who is uncle of appellant No. 1,

Appasaheb, informed him that the wife of Appasaheb had expired. He then went to the house of the appellant and saw Bhimabai lying dead with

froth coming out of her mouth. Thereafter, he gave a report about the incident in writing at the police station. In his cross-examination, he admitted

that he did not make detailed enquiries as to what was the cause of death and where the incident had taken place. He has further deposed that

Bhimabai had come to his house about six months earlier and had said all was not well between her and her husband, but she had not given any

specific details.

The main witnesses regarding the alleged demand of money and also harassment and beating to Bhimabai are her father and mother, viz., PW.1

Tukaram and PW.5 Sumanbai. In his examination-in-chief PW. 1 has said that whenever his daughter came to her parental home, she used to

complain that she was being subjected to harassment by the appellants on account of some ""domestic reasons"" and further that her husband

(appellant No. 1) had told her that while coming back from her parental home she should bring Rs. 1,000-1,200/- for expenses and for manure as

he had no sufficient money. PW.5 Sumanbai had deposed that Bhimabai was receiving ill-treatment as a result of ""domestic cause"" and to a

specific question put by the Court as to what she meant by ""domestic cause"" she gave a reply that there was a demand for money for defraying

expenses of manure etc. It is important to note that in her statement u/s 161 Cr.P.C. which was recorded on the very next day of the death of

Bhimabai, this witness did not state that the cause for ill-treatment was ""a demand for money and a consequent beating"". The evidence on record

does not indicate that the police had any reason to favor the accused and deliberately omitted to mention about the alleged demand of money while

recording the statement of PW.5 Sumanbai u/s 161 Cr.P.C. The evidence shows that the accused come from very humble background and they

could not have exerted any kind of influence, financial or otherwise, upon the police so as to manage a statement favorable to them when in the

course of investigation the statements of witnesses were being recorded u/s 161 Cr.P.C. Accepting the statements of father and mother on their

face value the utmost which can be held is that the appellant No. 1 had asked his wife Bhimabai to bring money for meeting domestic expenses and

for purchasing manure.

Two essential ingredients of Section 304B IPC, apart from others, are (i) death of woman is caused by any burns or bodily injury or occurs

otherwise than under normal circumstances, and (ii) woman is subjected to cruelty or harassment by her husband or any relative of her husband

for, or in connection with, any demand for ""dowry"". The explanation appended to sub-section (I) of Section 304B IPC says that ""dowry"" shall

have the same meaning as in Section 2 of Dowry Prohibition Act, 1961.

Section 2 of Dowry Prohibition Act reads as under :-

Definition of ""dowry""-In this Act ""dowry"" means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any

time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the

Muslim Personal Law (shariat) applies.

In view of the aforesaid definition of the word ""dowry"" any property or valuable security should be given or agreed to be given either directly or

indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of

property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking of property

or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known

social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade,

business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a

particular meaning in it, then the words are to be construed as having that particular meaning. (See Union of India and others Vs. Garware Nylons

Ltd. etc., ) AND Chemical and Fibres of India Ltd. Vs. Union of India and others, . A demand for money on account of some financial stringency

or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally

understood. The evidence adduced by the prosecution does not, therefore, show that any demand for ""dowry"" as defined in Section 2 of the

Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for

purchasing manure. Since an essential ingredient of Section 304B IPC viz. demand for dowry is not established, the conviction of the appellants

cannot be sustained.

Learned counsel for the appellants has also submitted that there is absolutely no evidence either direct or circumstantial to show that Bhimabai

committed suicide. He has submitted that the insecticide Thimet is extensively used by the farmers for preservation of crop and is kept stored in

their houses and it could be a case where Thimet accidentally got mixed with some food item and was consumed by Bhimabai. It has thus been

submitted that no offence u/s 306 is made out against the appellants. We do not consider it necessary to examine this question. As already stated,

the appellants were also charged u/s 498-A and 306 read with Section 34 IPC but were acquitted of the said charges by the learned Sessions

Judge, which order has attained finality for the reason that the State did not prefer appeal against the same. The appeal before the High Court and

also in this Court has been preferred by the appellants challenging their conviction u/s 304B read with Section 34 IPC. It has been held in The

State of Andhra Pradesh Vs. Thadi Narayana, that Section 423(1 )(b)(i) of Code of Criminal Procedure, 1898 (which corresponds to Section

386(b)(1) of Code of Criminal Procedure, 1973) is clearly confined to cases of appeals preferred against orders of conviction and sentence, the

powers conferred by this clause cannot be exercised for the purpose of reversing an order of acquittal passed in favor of a party in respect of an

offence charged, in dealing with an appeal preferred by him against the order of conviction in respect of another offence charged and found

proved. Therefore, we have refrained from expressing any opinion as to whether the appellants could be held guilty of having committed the

offence u/s 498A or 306 IPC on the basis of evidence available on record as their acquittal under the aforesaid charges has attained finality and

cannot be reversed in the appeal filed by the appellants challenging their conviction u/s 304B IPC.

In view of the discussion made above, the appeal is allowed. The judgment and order dated 23.2.2005 of the High Court and the judgment

and order dated 4.1.1993 of the learned Sessions Judge convicting the appellants u/s 304B IPC are set aside and the appellants are acquitted of

the said charge. The appellant No.1 is in custody. He shall be released forthwith unless wanted in some other case. The appellant No.2 is on bail.

The sureties and bail bonds furnished by her are discharged.