Mohinder Singh vs State of Punjab

K.P.S. Sandhu, J.

Mohinder Singh has been convicted and sentenced to rigorous imprisonment for five years and a fine of Rs. 1000, in default further rigorous imprisonment for one year, under section 306 of the Indian Penal code by the Additional Sessions Judge, Faridkot, vide his order dated 11th November, 1983. Three coaccused of the appellant namely, Ujagar Singh, his father; Bachan Kaur, his mother; Mohinder Kaur, his sister, were given the benefit of doubt by the learned trial Judge.

Gurdev Kaur (since deceased) was married to the appellant some seven or eight years prior to the present occurrence which took place on 6th August, 1982. The appellant left for Dubai after three years of his marriage and had been visiting India every year since then. The coaccused of the appellant were often quarrelling with Gurdev Kaur and telling her that she would not be kept in the house. Gurdev Kaur used to complain to her brother Jit Singh that she was apprehending danger at the hands of the coaccused of the appellant. The appellant is alleged to have written a letter to the brother of the deceased twenty or twentyfive days before the occurrence saying that he did not want to keep Gurdev Kaur and they should settle the matter. In response to the letter written by the appellant Jit Singh PW2, brother of Gurdev Kaur; Jit singh''s wife Mohinder Kaur and his brotherinlaw Gurcharan Singh went to the village of the appellant, namely Bughipura and enquired from the appellant and his coaccused as to why they were maltreating Gurdev Kaur at which they replied that Mohinder Singh did not like Gurdev Kaur for her blackish colour. Jit Singh again went to the appellant and his coaccused about four or five days prior to the occurrence and requested them not to illtreat Gurdev Kaur. While on 6th August, 1982, Jit Singh was returning from Moga he again went to the village of the appellant and found that Gurdev Kaur was lying dead on a charpoy and the appellant and his coaccused were preparing to cremate her. Jit Singh reported the matter to the sarpanch of the village and requested him that the appellant should not be allowed to cremate Gurdev Kaur''s deadbody. Jit Singh went to his village and brought Inder Singh Sarpanch of his village and Amar Singh and went to Police Station, Mehna, where he lodged first information report Exhibit PA on 6th August, 1982, at about 11 p.m. SubInspector Pritpal Singh PW5 went to the spot, prepared inquest report Exhibit PC/1 and took into possession some salivastained earth. He also prepared siteplan Exhibit PK and sent the deadbody of Gurdev Kaur for autopsy. Dr. Avtar Singh PW1 performed post mortem examination on the deadbody of Gurdev Kaur on 7th August, 1982, at about 10 a.m. The following is the report of his examination :

There was no injury on her deadbody. Heart was healthy and full. All other organs were healthy. Stomach showed patechial hemorrhages on the mucosal surface and it was full of semidigested food. Bladder was healthy and halffilled.

Cause of death was subject to the chemical examination report of the viscera sent to him."

On receipt of the report of the Chemical Examiner, Exhibit PC, the deposed that

"Presence of organo phosphorus in the stomach contents, small and large gut with their contents and pieces of liver, spleen and kidney is indicative of the fact that the death of Gurdev Kaur was due to intake of organo phosphorus orally. Presence of alcohol in the above parts of the body is further indicative of the fact that organo phosphorous compound might have been consumed along with alcohol. The Chemical Examiner had found 63.25 mg/per hundred M.L. concentration of alcohol in the urine which was also indicative of the fact that alcohol had been consumed by the deceased. With the intake of organo phosphorus and alcohol death could occur in the ordinary course of nature."

After due investigation the appellant and his coaccused were sent up for trial.

When examined under section 313 of the Code of Criminal Procedure, the appellant denied the prosecution allegation and came out with the following version :

"I and my wife had gone to the fields during day time where narma and cotton crops were sprinkled with insecticide. I had summoned a private doctor to get Gurdev Kaur treated. I sent information of her death to Jit Singh my brotherinlaw, to their village Raunta through Dalip Singh. I also sent information to the police. My mother and sister had gone to Moga for getting medicine for my sister. My father is an employee and stationed at village Budhsinghwala. He was also sent information."

In defence he examined Dalip Singh DW 1. He stated that the appellant sent him to Jit Singh PW to inform him that Gurdev Kaur had died. PW 2 Dr.J.S. Dalal, M.D., Head of Forensic Medicine Department, G.G.S. Medical College Faridkot, stated after examining postmortem report Exhibit PB that the percentage of organ phosphorus was not mentioned in the contents of the viscera as analysed by the Chemical Examiner. He further stated there was always a minimum lethal dose in any and every poison and, therefore, without the minimum percentage of lethal dose in organ phosphorus it could not be said that the death in this case was due to the presence of organ phosphorus.

The prosecution, apart from Dr. Avtar Singh, examined Jit Singh PW 2, the brother of the deceased and the first informant in this case. Gurcharan Singh PW 3, sister''s husband of Gurdev Kaur (since deceased) also deposed about the illtreatment meted out to Gurdev Kaur from the appellant and his coaccused. He had arranged the marriage between the appellant and Gurdev Kaur. PW 4 Amar singh of village Raunta accompanied Jit Singh PW to the police station and is a witness to the recovery of certain articles. PW 5 SubInspector Pritpal Singh investigated the case and after due investigation submitted a report under section 173 of the Code of Criminal Procedure.

The main contention raised by Mr. Mulakh Raj Mahajan, Senior Advocate, learned counsel for the appellant, is that undoubtedly there is evidence on record to show that Gurdev Kaur (since deceased) was maltreated by the appellant and his coaccused but there is not an iota of evidence on the record to prove that the appellant aided or abetted the offence. The evidence of these two prosecution witnesses, namely, Jit Singh and Gurcharan Singh only proves that the appellant was not happy with his wife and was maltreating her. It does not travel beyond this. Mr. Mahajan, learned counsel for the appellant, has placed reliance on a Division Bench authority of this Court reported as Raj Kumar v. The State of Punjab, (1983(1) RCR 553) : 1983(1) CLR 660 , wherein their Lordship very elaborately interpreted the definition of `abetment'' of an offence. Their Lordships were pleased to hold that the expression `instigate'' in the Concise Oxford Dictionary is defined as `urge on, incite, bring about by persuasion'' and in Webster, it has been defined as `urge forward, provoke with synonyms of stimulate, urge, spur, provide, tempt, incite, impel, encourage, animate.'' the word `instigate'' in common parlance would mean `to go, to urge forward or to provoke, incite or encourage to do an act''. I agree with the learned counsel for the appellant that, in view of this authority, there is no evidence on record to come to a finding that the appellant committed an offence under section 306 of the Indian Penal Code. Consequently I set aside the conviction and sentence of the appellant under section 306 of the Indian Penal Code. The fine if already paid by the appellant, would be refunded to him.