Kuldeep Singh and Others vs State of Haryana

Mahavir Singh Chauhan, J.

Convicts Kuldeep Singh and Chander Singh, son and father duo, are in appeal to challenge judgment of conviction dated September 15, 2003 and order of sentence dated September 18, 2003 whereby Court of learned Sessions Judge, Sonipat has convicted and sentenced them to rigorous imprisonment for a term of eight years and a fine amounting to Rs. 3000/- and in default of payment of amount of fine to further rigorous imprisonment for a term of two years, each, under Section 306 read with Section 34 of the Indian Penal Code, 1860 (for short, ''IPC'') and rigorous imprisonment for a term of two years under Section 201 read with Section 34, IPC, each.

As per prosecution''s chronicle, Bimla (here-in-after referred to as "the deceased"), who died on November 13, 1999, was married to appellant Kuldeep Singh about twelve/thirteen years prior to her death. Members of her matrimonial family would continually harass her. One and a half years before her death, they (members of her matrimonial family) gave beatings to, and turned the deceased out of the matrimonial home but about twenty five days before the occurrence she was taken back (to her matrimonial home) by a "Panchayat".

At or around 03 O''Clock on November 13, 1999 a telephone call received at the residence of Chander (here-in-after referred to as "the Complainant") revealed that the deceased had ingested some poisonous pills and had died. On reaching village Nagar (where the deceased was married) they (members of complainant party) found that the accused, who had compelled her to commit suicide by harassing her, had also cremated dead body of the deceased.

Based on the above statement, Exhibit PA, made by the Complainant before Sub Inspector Shamsher Singh (PW6) (here-in-after referred to as "the Investigating Officer") a formal First Information Report (for short, "FIR), Exhibit PA/1, came to be recorded by Assistant Sub Inspector Ram Avtar (PW1). Investigating Officer reached the spot, prepared a rough site plan, Exhibit PG, of the spot of occurrence; recorded statements of witnesses; got the last remains of the deceased subjected to forensic examination; and on completion of investigation presented a report before the learned Area Magistrate in terms of sub-section (2) of Section 173 of the Code of Criminal Procedure, 1973 (for short "the Code"). Learned Sessions Judge, on committal of the case, afforded an opportunity of hearing to the prosecutor and the defence, found a prima facie case punishable under Section 306 read with Section 34, IPC, to be made out, and charged the appellants accordingly.

A plea of not guilty and a claim to be tried having been put up by the appellants, prosecution examined the Complainant as PW3 and Complainant''s son Subhash as PW4 to bring on record the prosecution version, Assistant Sub Inspector Ram Avtar, who recorded FIR, Exhibit PA/1, as PW1, Constable Ram Niwas, who took the special reports to the quarters concerned, as PW5, Constable Jagbir Singh, who prepared scaled site plan, Exhibit PB, of the place of occurrence, as PW2, and the Investigating Officer, Sub Inspector Shamsher Singh as PW6 to highlight various stages of investigation.

Appellants, when confronted with the inculpating circumstances, denied all those circumstances and while reiterating plea of their innocence and false implication, stated that the deceased died a natural death; her body was cremated in the presence of her parents and other relatives; in the evening a dispute arose with regard to return of articles of dowry; and in view of the dispute the Complainant cooked up a false story to implicate the appellants.

Appellants examined Lamberdar Ishwar Singh (DW1), a fomer Sarpanch Om Parkash (DW2) and Sub Inspector, Food and Supplies, Ram Kumar (DW3) to bring on record that the deceased who enjoyed cordial relations with the appellants died a natural death; her dead body was cremated in the presence of her parents and other relatives; and as is evident from copy of ration card, Exhibit DA, appellant Chander Singh was living separately from appellant Kuldeep Singh.

On hearing the prosecutor and the defence and appraisal of the evidence, learned Sessions Judge reached a conclusion that the prosecution was able to prove guilt of the appellants punishable under Section 306 read with Section 34, IPC, and Section 201 read with Section 34, IPC, beyond reasonable doubt and, accordingly, convicted and sentenced them as herein- before stated.

I have heard learned counsel for the parties besides perusing the record.

Learned counsel for the appellants argues that the prosecution has failed to prove death of the deceased otherwise than under normal circumstances and circumstances brought on record in the evidence of prosecution evidence do not satisfy ingredients of abetment in terms of Section 107, IPC. So much so, story of the prosecution has remained unsubstantiated and fact of the matter is that the deceased died a natural death and her dead body was consigned to the flames in the presence of her parents and other relatives but the Complainant has falsely framed the appellants as the dispute raised by him with regard to return of articles of dowry could not be settled as per his liking.

On the contrary, learned State counsel submits that the very fact of cremation of dead body of the deceased hurriedly without waiting for parents of the deceased to reach village Nagar is sufficient to conclude that deceased died under mysterious circumstances for reasons attributable to the appellants.

No other or further point has been urged on either side.

It may be pointed out at the very outset that learned Sessions Judge did not charge the appellants under Section 201 read with Section 34, IPC. Therefore, conviction and sentence of the appellants under this Section cannot sustain.

Appellants were put to trial on the allegations that the deceased, who died on November 13, 1999, was continually harassed by members of her matrimonial family; one and a half years before her death, they (members of her matrimonial family) gave beatings to, and turned the deceased out of the matrimonial home but about twenty five days before the occurrence she was taken back (to her matrimonial home) by a "Panchayat". At or around 03 O''Clock on November 13, 1999 a telephone call received at the residence of the Complainant revealed that the deceased had ingested some poisonous pills and had died. On reaching village Nagar they (members of complainant party) found that the accused, who had compelled her to commit suicide by harassing her, had also cremated the dead body of the deceased.

Father of the deceased, namely Chander has stepped into the witness box as PW3 and her brother, Subhash as PW4 to re-assert on solemn affirmation the story of the prosecution. However, neither in statement, Exhibit PA (on the basis whereof FIR, Exhibit PA/1, was recorded) nor in the deposition of PWs Chander and Subhash have come on record any specific instances of stated harassment of the deceased at the hands of the accused. Statement, Exhibit PA, also does not answer the questions-who gave beatings to the deceased and why; who were the members of the "Panchayat" that took the deceased back to the matrimonial home; and who had telephoned to inform death of the deceased. PWs Chander and Subhash, however, have admitted that no complaint was made in respect of stated beatings and harassment meted out to the deceased and no demand of dowry was ever raised by the accused.

PWs Chander and Subhash though have come out with a plea that the appellants would compel the deceased to have sexual relations with appellant Chander Singh but statement, Exhibit PA, is conspicuously silent in this regard. This allegation, therefore, is an improvement over statement, Exhibit PA, and an afterthought. Exhibit PA and PWs Chander and Subhash have, however, failed to state when such a pressure was exerted upon the deceased, who disclosed it to the Complainant and PW Subhash and when, and what steps were taken by them on coming to know of it.

In Exhibit PA, it is alleged that telephone call regarding death of the deceased was received at the residence of the Complainant but while appearing as PW3 the Complainant has come out with a plea that there is no telephone installed at his residence and the call, in fact, was received by his brother, Dhara, on a telephone installed at his (Dhara''s) residence. However, according to PW Subhash the call was received at the telephone of Sarpanch named Dhara who is not related to the Complainant and, in fact, belongs to a "gotra" different from that of the Complainant. Incidentally, Dhara has been kept away from the witness stand. Thus, the first hand information as regards contents of the phone call has remained unproved and statements made by PWs Chander and Subhash in this regard are based on hearsay, and thus inadmissible in evidence.

Story put up by the Complainant in Exhibit PA, is that he came to know of cremation of dead body of the deceased only when he had reached village Nagar but while appearing as PW3 before the learned Sessions Judge he introduced a twist by saying that when he reached village Nagar he found that dead body of the deceased was being cremated. According to PW4, Subhash, brother of the deceased and son of the Complainant, the information received on phone was that the deceased had died and her dead body had been consigned to flames in the morning (of November 13, 1999). The telephone call, according to PW Chander also revealed that the deceased had died of ingestion of some poisonous pills but PW Subhash has kept a calculated silence in this regard. This circumstance, perforce, indicates that an effort has been made to cook up a story as regards ingestion of poisonous pills by the deceased and cremation of her dead body hurriedly and without waiting for her parents and other relatives.

If statement made by PW4, Subhash is to be believed, it was on the intervention of Superintendent of Police K.P. Singh that the FIR in the matter was recorded and that the complainant party had met said K.P. Singh somewhere between 10.15 p.m. to 11.00 p.m. (on November 13, 1999). Surprisingly, statement, Exhibit PA, is shown to have been recorded at 08.00 p.m. on November 13, 1999 and FIR, Exhibit PA/1, is shown to have been recorded at 08.20 p.m. on that day. Statement made by PW4, Subhash, as regards registration of case at the intervention of the Superintendent of Police K.P. Singh (who has not been examined as a witness) and time of meeting of the complainant side with that officer suggest that the FIR has been ante-timed to falsely implicate the appellants and it also gives strength to the defence plea that dead body of the deceased was cremated in the presence of her parents and other relatives and the FIR was lodged only because the Complainant failed to have a settlement with regard to return of the articles of dowry, to his liking.

As per case of the prosecution dead body of the deceased having been cremated by the accused, last remains from the burnt pyre were lifted vide memorandum, Exhibit PE, and were sent for examination to Forensic Science Laboratory, Madhuban (Karnal) but the effort has gone waste because in the report of Forensic Science Laboratory, Exhibit PF, it has been recorded that fragments of burnt bones were sorted out and were examined morphologically and anatomically to determine their species of origin and sex and it was found that the bones were human in nature but no opinion regarding sex could be given as the bones were fragmentary. This report cannot be read to mean that the bones sent for examination were those of the deceased or that the deceased died of poisoning. No evidence has been brought on record to show that the deceased died under mysterious circumstances or that the dead body (which is said to have been cremated) was that of the deceased.

What has been said and discussed in the preceding paragraphs should suffice to conclude that story of the prosecution has remained unsubstantiated.

Be that as it may, even if story of the prosecution is taken to be true and to have been proved, yet the circumstances constituting it do not satisfy the ingredients of Section 107, IPC.

Resultantly, the appeal succeeds and is accepted. Impugned judgment dated September 15, 2003 and order dated September 18, 2003 of learned Sessions Judge, Sonipat are set aside and the appellants are acquitted of the offences of which they have been charged and convicted.

Bail bonds of the appellants are discharged.

Amount of fine, if already deposited by the appellants, shall be refunded to them as per procedure known to law.