Mohan Singh vs State of Punjab

R.K. Nehru, J.

This appeal has been directed against the judgment of conviction and order of sentence both dated 24.5.1986 passed by the then learned Additional Sessions Judge, Jalandhar, whereby the appellants have been convicted for an offence under Section 306 read with Section 34, Indian Penal Code and as a result thereof each has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/ and in default of payment of fine, to further undergo rigorous imprisonment for six months.

The appellants alongwith three other accused namely Jagir Singh, Pappu alias Palvinder Singh and Surinder Kaur, who have been acquitted by the trial court, were charged and tried by the Court of Sessions under two counts, one under Section 302 read with Section 149, Indian Penal Code and the other under Section 302 read with Section 149 of the Indian Penal Code.

The prosecution case in brief can be summed up thus :

Mohinder Kaur, appellant, is the wife of Mohan Singh appellant. Accused Jagir Singh and Pappi (both acquitted) and Darshan Singh are the sons while Surinder Kaur accused (acquitted), is the daughter of the appellants. Gurbux Kaur deceased in this case is the wife of Darshan Singh to whom she was married about 15 months prior to the occurrence leading to her death.

Saudagar Singh, PW2, who is the complainant in this case is the father and Harbhajan Singh, PW3 is the brother of Gurbax Kaur deceased. Tara Singh, PW 6, is the maternal uncle of Gurbax Kaur deceased inasmuch as his sister is the wife of Saudagar Singh, PW2.

The occurrence leading to the death of Gurbax Kaur deceased in this case took place on 6.6.1985. At that time her husband Darshan Singh was away to Kuwait where he was employed. The parents of the deceased had given sufficient dowry to her at the time of her marriage with Darshan Singh. Two days prior to the departure of Darshan Singh to Kuwait, Gurbax Kaur deceased had gone to her parents house and had demanded a sum of Rs. 15,000/ from them on the ground that the same was required for her husband who was preparing to leave for a foreign country. At that time Saudagar Singh, PW2, borrowed an amount of Rs. 5,000/ and given the same to his daughter. After the departure of Darshan Singh for abroad, Gurbax Kaur again went to her father and demanded a sum of Rs. 5,000/ from him as her inlaws had directed her to bring that amount in order to pay off the debts. However, Sudagar Singh, PW2, was not in a position to pay that amount. Gurbax Kaur deceased told him that the above amount should be paid at any cost because she was being tortured by her in laws. At that time accused Jagir Singh (acquitted) had also come to the house of Saudagar Singh. PW2, in order to take her back with him but he was told by Saudagar Singh, PW2, that she would be sent back in a day or so. On the same day in the evening, Harbhajan Singh, PW3, accompanied his sister Gurbax Kaur deceased to her inlaws house. In his presence the accused maltreated her.

On 6.6.1985 at about noon time, Tejwant Singh, a cousin of Gurbax Kaur deceased went to the house of Saudagar Singh, PW2 and informed him that Gurbax Kaur had been burnt to death. On being so informed, Saudagar Singh, PW2 alongwith Bhan Singh, Thakar Singh, Chuhar Singh and others left for Shahkot, the village of the accused. When they reached near Dana Mandi, Shahkot Harbhajan Singh, PW3 and Tara Singh, PW6 met them and told them that they had peeped into the house of the accused through the chinks on the door and saw that the accused were carrying kerosene oil and some wood in order to set her on fire. They further informed them that they should immediately rush to the house of the accused. Saudagar Singh, PW2 alongwith the above mentioned persons went to the house of the accused. On reaching there, they saw Gurbax Kaur lying dead. Saudagar Singh, PW2 then left for the police station, Shahkot where he lodged report, Exhibit PD, at 3.15 p.m. with ASI Inderjit Singh, PW7. This investigating officer thereupon accompanies Saudagar Singh, PW2, in the company of other police official to the spot where dead body of Gurbax Kaur was lying in the court yard. He held inquest proceedings, Exhibit PC, on the dead body of Gurbax Kaur during the course of which he also prepared visual site plan, Exhibit P5, lifted blood stained earth and also seized stove, Exhibit P8 and tin, Exhibit P9 from the spot vide memo. Exhibit PH. He sent the dead body for postmortem examination to civil hospital, Nakodar, where the autopsy of the dead body was performed at 8.45 p.m. on 6.6.1985 by Dr. A.S. Sohal, PW1, who vide postmortem examination report, copy proved as Exhibit PA, observed as under :

"It was the body of a young female of 20 or 21 years of age. Eyes were closed. Mouth was open with tongue protruding out between the teeth. The body was in the pungilistic attitude. It was moderately built and nourished female''s body. The deceased was wearing no cloth over the body. There was pair of gold ear rings, silver penzebs at the feet, four glass bangles on the left forearm, two iron bangles on the right wrist, koka in her nose and bichhua on her right and left second toes.

Hair on the scalp of the deceased, eye lashes and eye brows and pubic hair was signed. Hair almost absent from the scalp except at the left parietal region, occipital region and part of the right parietal region. Burnt hair smelt of kerosene oil. Burnt parndhi of black colour and red and violet red cloth, partially burnt were found among the hair over the scalp. Smell of kerosene oil was also present in the prandhi.

There were following burn injuries on the persons of the deceased.

An area of 10 cm x 6 cm on the posterior aspect of left leg and an area of 6 cm x 6 cm on the planter aspect of the left foot was having no skin and had haemorrhagic area.

The whole body had superficial and deep burns (100% burns). Epidermis was present on the part of front of left thigh, left leg and dorsum of left foot, right leg and partially in front of the right thigh. The epidermis was also present on the groin and front and back of chest in the area covered by underwear, salwar and brassier. The sooty blackening of the skin was present at places. White parchment like and brittle skin was also present except at places where epidermis were intact. Blood vessels were stretching across flexural areas as seen through white skin. Part of hair from scalp, parandhi and cloth pieces were preserved and were given to police. Both sides of the heart were congested, healthy and contained dark fluid flood. Stomach contained 200 mls of partially digested food material. Large intestine contained faecal matter. Liver, spleen, kidneys were healthy and congested. Bladder was healthy and empty. Both the lungs, larynx and tracheu were congested and healthy. All the burn and other injuries were antemortem."

In the opinion of the Doctor the cause of the death was due to cardio respiratory failure on account of shock caused by burn injuries, which was sufficient to cause death in the ordinary course of nature. The time that elapsed between the injuries and death was stated to be 30 minutes to one hour and between death and postmortem as 24 hours.

During the course of investigation, ASI Inderjit Singh, PW7 also recorded the statements of the witnesses and after completion of the investigation and other formalities he arrested the accused on 8.6.1985. The appellants were challaned for an offence under Section 306 of the Indian Penal Code.

After about a month of the lodging of report, Exhibit P8, Saudagar Singh, PW2 also filed a private complaint under Section 306, of the Indian Penal Code against the two appellants and the remaining three accused (acquitted by the trial Judge). On the basis of evidence recorded by the Magistrate during the preliminary enquiry he committed the complaint to the Court of Sessions. The learned Additional Sessions Judge charged the accused under Sections 302 and 306, both read with Section 149 of the Indian Penal Code.

In support of its case, the prosecution examined in all seven witnesses, namely, Dr. A.S. Sohal PW1, Saudagar Singh PW2 Harbhajan Singh PW3, Faqir Chand PW4, Narinder Pal, PW5, Tara Singh PW6 and ASI Inderjit Singh PW7, out of whom the material witnesses are Sudagar Singh PW2, Harbhajan Singh PW3 and Tara Singh PW6.

When examined under Section 313 of the Code of Criminal Procedure, the accused denied the prosecution allegations and pleaded their innocence. The plea of the accused is depicted in the statement of Mohan Singh, appellant, which is as under :

"I am innocent, our relations with daughterinlaw were cordial. We never demanded anything from her nor she was ever maltreated by us. Gurbax Kaur was suffering from mental disorder because she was insisting for going abroad to join her husband, which was not easy as there was restriction to obtain visa for wife and she developed suicidal tenderncy.

On the day of the alleged occurrence, when Gurbax Kaur caught fire, at that time, I and my sons Jagir Singh and Pappu already had gone to our work and my daughter Surinder Kaur had gone to school and my wife Mohinder Kaur had gone to the market to purchase vegetables. Our neighbourers including Baldev and Mohinder Singh collected there and they tried to extinguish the fire and sent message to us. On reaching our house, we also tried to extinguish the fire and attempted to remove her to the hospital, but in the meantime she died. I had sent message to the parents of my daughterinlaw and had also informed the police."

In defence the accused examined Mohinder Singh as DW1.

I have heard the learned counsel for the appellants and the learned counsel for the State and gone through the evidence and other material on record. So far as the death of Gurbax Kaur deceased on account of burn injuries as found by Dr. A.S. Sohal PW1, vide postmortem report, copy proved as Ex. PA, is concerned, that does not raise any controversy between the parties.

As observed earlier, the two appellants alongwith three others were tried on two counts, one under Section 302 read with Section 149 Indian Penal Code and the other under Section 306 read with Section 149 Indian Penal Code. On the basis of evidence led during the trial, the learned Additional Sessions Judge found that there is no evidence to connect any of the accused including the two appellants for the offence of murder, so much so, that according to the trial Judge no offence whatsoever has been proved against the three accused namely Jagir Singh, Pappu alias Palvinder Singh and Surinder Kaur and they were accordingly acquitted. On the evidence on record, the trial court, however, found the charge under Section 306 of the Indian Penal Code established against the two appellants and as such convicted them thereunder in the terms as stated above.

The learned counsel for the appellants has submitted that the judgment of conviction recorded by the trial court is not based on any evidence and as such the same is inform and deserves to be set aside.

The consistent case of the complainant as set out in the FIR Ex. PD as also in the criminal complaint filed by him in the court of Magistrate and that too after a month of alleged occurrence is that Gurbax Kaur had committed suicide because of the ill treatment meted out to her at the hands of the appellants who were coercing her to bring huge money to the tune of Rs. 15,000/ from her parents. However, when he appeared as a witness during the trial, he did not stick to his above stand as contained in his report Ex. PD and the one as contained in his criminal complaint. On the other hand while appearing as PW2, he disowned to have mentioned the above facts as contained in this report to the police and the criminal complaint filed by him in the court of the Magistrate and in turn, he deposed that his daughter Gurbax Kaur was murdered by the two appellants and the other three accused (acquitted by the trial Judge), by setting her on fire and that it was not a case of suicide committed by the deceased on account of demand of dowry. He was as such duly confronted with his police report Ex. PD and the criminal complaint wherein there was no allegations made by him about Gurbax Kaur having been murdered by the appellants and the other three accused. Similarly, Harbhajan Singh PW 3 and Tara Singh PW6 also in their deposition in Court resiled from their statements recorded by the police under Section 161 Criminal Procedure Code as also from their statements recorded during preliminary enquiry in the criminal complaint by the Committing Magistrate and on the other hand, tried to support the complainant by deposing that the deceased was in fact murdered by the accused party. However, they were also duly confronted with their police statements as also with their statements made by them before the Magistrate during the proceedings in the criminal complaint wherein no such story of the accused having been murdered the deceased, much less in the manner as deposed by them during the trial finds mention so much so that Harbhajan Singh PW3 and Tara Singh PW6 went to the extent even to disown their sworn statements made by them during the proceedings in the criminal complaint in the Court of the Magistrate. It was in the above background that the learned trial court, disbelieving the testimony of these three prosecution witnesses regarding the murder of the deceased, rightly acquitted by the appellants as also other three accused of the charge of murder, so much so that the trial Court did not find any material on record to hold the three accused namely Jagir Singh, Palvinder Singh and Surinder Kaur guilty for an offence under Section 306, Indian Penal Code and acquitted them thereunder. The above approach of the trial court does not suffer from any infirmity.

The approach of the trial Court in recording the finding of conviction against the appellants under Section 306 Indian Penal Code does not appear to be sound in the circumstances on record. During the trial, it is the consistent case of the complainant and other prosecution witnesses that the deceased had not committed suicide on account of demand of dowry and on the other hand they came out with absolutely a new case in their deposition during the trial that the deceased was in fact murdered by the appellant by setting her on fire. The trial Court has not accepted this part of the prosecution evidence of the deceased having been murdered by the appellants. Once the trial judge had come to the conclusion that no case for the offence of murder has been established against all the accused, so much so that no offence under Section 306 Indian Penal Code has even been made out against the acquitted accused, there appears to be no material for the trial court to convict the appellants under Section 306 Indian Penal Code for the simple reason that so far as the allegations under Section 306 Indian Penal Code are concerned, Saudagar Singh PW2, Harbhajan Singh PW3 and Tara Singh PW6 have not owned these allegations even by way of whisper in their testimony in Court and they rather stuck to their stand that the deceased was murdered by the accused.

In the circumstances, I hold that there is no evidence on record to convict the appellants for an offence under Section 306, Indian Penal Code and the trial Court was wrong in its approach in convicting them under Section 306, Indian Penal Code.

In the result, the appeal is accepted, the impugned judgment of conviction and the order of sentence are set aside and the appellants are acquitted of the offence with which they stood convicted.