Rajinder Singh vs State of Punjab

J. S. Sekhon, J.

Rajinder Singh and Jaswant Kaur, appellants were found guilty and convicted by the learned Additional Sessions Judge, Barnala on the charge of dowry death of Mst. Surinderjit Kaur under Section 304B read with Section 34 of the Indian Penal Code. Rajinder Singh, appellant was sentenced to undergo imprisonment for life while Mst. Jaswant Kaur, in view of her old age was awarded 7 years sentence. Feeling aggrieved against their conviction and sentence, the appellants have come up in appeal. Dalip Singh, complainant, father of the deceased had also preferred criminal revision No. 409 of 1992 for enhancement of sentence of Mst. Jaswant Kaur. Both these matters shall be disposed of by this common order as these arise out of the same judgment of the trial court and rest upon the same evidence.

In brief, the facts of the prosecution case are that the marriage of Mst. Surinderjit Kaur, deceased, daughter of Dalip Singh PW. 4 took place with Rajinder Singh accused on 6.12.1987 at Ludhiana. Harbans Singh acted as mediator. She along with her husband and inlaws after the marriage, used to reside in the house located in Mohalla Amarpura, Barnala. The husband and motherinlaw being not satisfied with the dowry used to harass and force her to fetch coloured television, refrigerator and a sum of Rs. 10,000/ for raising construction besides demanding 1/4th share in her parental house located at Ludhiana. Dalip Singh, father of the deceased, however, expressed his inability to give these articles, in view of his poor financial status. The deceased on her visit to her parental house at Ludhiana apprised Sardul Singh PW. 6 of her maltreatment at the hands of her husband and motherinlaw on demand of dowry. He, however, consoled her and advised her to try to pull along with her inlaws as her father is a poor man and cannot afford to give more dowry. The deceased also wrote letter Ex. P7 to her father on 7th of May, 1988 conveying that she is undergoing whatever is written in her fate but there is no cause for her parents to worry about it. With this background, on 19th of May, 1988, Rajinder Singh, accused husband of the deceased, contacted his fatherinlaw Dalip Singh at Ludhiana and apprised him that Surinderjit Kaur had bolted the door of the room from inside and was not opening the same. Dalip Singh, PW. 4 along with his wife Krishna Wanti and mediater Harbans Singh then rushed to Barnala and reached there at 4.00 p.m. On reaching there they found that the doors and windows in the front portion of the house were lying closed. They shouted for Surinderjit Kaur but there was no response from inside. Through the chinks of the door they saw that her body was lying on the ground in a burnt condition. They started bewailing upon which large number of persons collected there. They made inquiries from these persons as to how Surinderjit Kaur was killed but no body responded. Dalip Singh then left for Police Station, Barnala for lodging report but happened to meet Inspector Iqbal Singh, PW9, near Pharwahi Bazar where his statement Ex. PD was concluded at 6.00 p.m. and on its basis a case under Section 304B, I.P.C. was got registered against the accused at the Police Station at 6.15 p.m. through SubInspector Kuldip Singh. The special report of the case was conveyed to the Ilaqa Magistrate at 7.45 p.m. on that very evening by constable Harinder Kumar.

Inspector Iqbal Singh started the investigation and arrived at the spot. He found Harbans Singh and Krishna Wanti witnesses present there. None of the accused or any other inmate of the house was then present. The dead body of Mst. Surinderjit Kaur was found lying in a burnt condition in the room bolted from inside. He opened the door by inserting his hand through the gap in its shutters. He then called Pawan Kumar, Photographer, PW5, and got the dead body photographed. He also prepared inquest report Ex. PC of the dead body in the presence of Dalip Singh and Krishna Wanti, parents of the deceased who had attested the same. The dead body was entrusted to Head Constable Nachhattar Singh for autopsy. The Inspector failed to observe any signs of smoke or soot in that room. He took in possession one plastic can Ex. P. 13 containing some kerosene oil, partly burnt piece of cloth Ex. P. 14, match box, some ash and hair after putting them in different sealed parcels. The piece of wooden door Ex. P. 16 and Sunny Ex. P. 17 were also taken into possession. He also prepared rough site plan Ex. PH of the spot and recorded the statements of the witnesses. The accused were found absconding from their house. He then returned to the Police Station and deposited the sealed parcels of the case property with the Moharrir Head Constable. SubInspector Gurdev Singh was deputed to carry out the remaining investigation.

The autopsy of the deadbody of Mst. Surinderjit Kaur was conducted by Dr. Narotam Singh PW. 1 at Civil Hospital, Barnala on 20.5.1988 at 8.30 p.m. He found that the scalp hair and clothes were smelling of kerosene oil. Partly burnt salwar, shirt, underwear and brassiers smelling of kerosene oil were found adhering to the body. Eyebrows and eye lids were burnt. Public hairs were not burnt. She was having superficial to deep burns over the scalp face, neck, front of trunk and back of chest over the scapular region but the public region and buttocks were intact. He also observed sooty blackening on various parts of the body. Scalp was partially burnt. Walls of thorax were burnt. Pleurae, larynx and trachea, both the lungs and brain and membranes were found congested. Walls of the abdomen were burnt. In his opinion the cause of death was due to shock resulting from extensive burns which were sufficient to cause death in the ordinary course of nature. The time between death and injury could not be ascertained but the autopsy was conducted within 24 hours to 48 hours of death.

Inspector Gurdev Singh, PW11, took in possession letter Ex. P7 of the deceased produced by Dalip Singh, PW, before him on 20.5.1988. He arrested both the accused on 31.5.1988. He also recorded the statements of Sardul Singh and others. The sealed parcels of the partly burnt clothes, hair recovered from the spot and the pieces of clothes found on her deadbody were sent to the Forensic Science Laboratory and the Assistant Director, Biology confirmed the hair to be of human origin. After completion of investigation both the accused were arraigned for trial on such like allegations by submitting the chargesheet before the Committing Magistrate who committed the case against them to the court of Sessions.

In order to prove the above referred case before the trial court, the prosecution examined 11 witnesses besides tendering the formal evidence of Head Constable Labh Singh and Constable Harinder Kumar, on affidavits which were ordered to be read as statements of PW 2 and PW 3 as these witnesses were not required for crossexamination. The report Ex. PH of the Assistant Director of Forensic Science Laboratory was also tendered in evidence.

The version of both the accused before the trial court in their respective statements recorded under Section 313 Cr.P.C. was that of simple denial and false implication. Detailed version of Rajinder Singh, accused, in answer to question No. 22 runs as under :

"I am innocent. I and my wife were living separately from my parents in this room. My three brothers and their families live in the other rooms of this house. My parents lived in another room separately. On the night of 18/19.5.1988 I and Surinderjit Kaur slept on the roof of the room. Early in the morning when I woke up I found Surinderjit Kaur missing from the roof. I came down and found the room chained from inside and Surinderjit Kaur lying on the ground. We did not open the room. I went to Ludhiana and informed Dalip Singh about it at about 8 a.m. Dalip and others reached Barnala at about noon time. My father had informed the police and the police was already present in the house when I reached there from Ludhiana. I and my mother were detained by the police at the instance of my inlaws. My wife was mentally sick. My motherinlaw had filed a complaint for the murder of Surinderjit Kaur against me, my mother, my father, my three brothers and their wives."

Mst. Jaswant Kaur accused also adopted the plea of her son Rajinder Singh, coaccused.

When called to enter upon their defence by the trial court, the accused examined Balwinder Singh, Constable, DW 1 for proving the entries Ex. DD, DE, DF in the daily dairy. A copy of the bail application Ex. DG and copies of the orders Ex. DH and Ex. DJ were also tendered in evidence. Manmohan Singh, real brother of accused Rajinder Singh was also examined in support of the above referred defence version.

The trial court, however, believing the prosecution evidence, convicted and sentenced the appellants as referred to above.

There is considerable force in the contention of Mr. Mann Senior Advocate the learned counsel for the appellant that there is no reliable and acceptable evidence regarding the demand of dowry but the accusedappellants or that they used to treat Mst. Surinderjit Kaur deceased with cruelty on this score because had it been so, then the deceased must have mentioned it in her letter dated 7.5.1988 i.e. hardly 12 days prior to her death to her parents. The correct translation of this letter reads as under :

"Barnala

7.5.88.

My dear Pappa and Mamma,

Satsri Akal,

We are all happy. I wish your happiness from Almighty. I could not reply your letter due to ill health. You need not worry about me. Whatever destined, I will face the same.

I was very proud of myself (life). No such thing had ever happened with me. This time I am in trouble. Had I two brothers, I would have visited you with pride. No body comes to rescue in the time of misery. How Kuckoo is ? Does he work or not ? Ask Kuckoo that he should work also. Only the work pays in the long run in the world. Papa alone is unable to look after all of us. I am writing this letter weepingly that all of usbrother and sisters are unfortunate. Everybody has to surrender before the Will of Almighty. Whatever destined must happen. How is your health Bibiji ? You should take care of your health. I asked my sister that she should take me along with herself for a few days. My sister told me that Beejee (mother) was not feeling well rather I am much worried since then.

Reply at the earliest. Pardon if there is any mistake (omission) on my part.

Yours daughter

Sd/

(Surinderjit Kaur)"

A bare perusal of same do reveal that the deceased was not being treated well at her inlaws house. She had expressed her helplessness by saying that she will face the same whatever is destined besides conveying that she cannot reside with her parents as her father alone will be unable to look after the entire family. She has also referred to the factum that she has only one brother and had there been another brother then some body would have come to her rescue in the time of misery. This letter does support the case of Dalip Singh PW. 4 father of the deceased that his daughter was being maltreated by her husband and motherinlaw. However, it contradicts the version of the father regarding the demand of dowry. Mr. Mann on the basis of reference in this letter that the deceased failed to send a reply to the letter of the parents due to ill health, contends that she was suffering from mental ailment. There is no force in this contention as the accused had failed to lead any documentary evidence although Manmohan Singh DW1 brother of Rajinder Singh appellant alleges in his testimony that the deceased was got treated from Guru Teg Bahadur Hospital, Ludhiana as also in the hospital of Dhanaula and Mohali. There would have been no dearth of documentary evidence in this regard, if at all the deceased was got treated from these hospitals for her mental ailment. Dalip Singh father of the deceased strongly refuted such suggestion.

Mr. Dhaliwal learned Deputy Advocate General on the basis of the statement of Sardul Singh PW6 contends that the deceased had complained to him about the maltreatment by her motherinlaw and husband for demand of more dowry. No doubt Sardul Singh happens to be president of the Gurdwara Singh Sabha Ludhiana where the parents of the deceased used to reside yet his evidence in this regard saw the light of the day in the month of June, 1988 although the occurrence took place on 19.5.1988. The evidence of this witness is vague qua the demand of more dowry. Moreover, in case the deceased had apprised Sardul Singh or her parents 2/4 days after the Baisakhi 1988 of the demand of dowry then it would have specifically figured in the First Information Report recorded on the statement of Dalip Singh (PW4) but therein it is simply mentioned towards its fag end that the husband and motherinlaw of the deceased issued demand of dowry. Deceased had burnt herself to death on being harassed by her husband and motherinlaw for demand of dowry. The details of the demand did not figure in the First Information Report but during his testimony at the trial, Dalip Singh (PW4) had stated that they were demanding a coloured television, refrigerator, a sum of Rs. 10,000/ and 1/4th portion of his house. It appears that at a later stage of the investigation the above referred versions were set up by Dalip Singh in his supplementary statement. The conduct of Mst. Krishna Wanti mother of the deceased in filing a complaint under Sections 302/304B/149 of the Indian Penal Code against all the members of the family of the appellant which was dismissed by Judicial Magistrate vide order Ex. DH on 27.6.1988, is also eloquent of the conduct of the parents of the deceased in magnifying the fault of the entire family of the inlaws after being satisfied on well founded or misfounded suspicion that they are responsible for the death of the deceased. Secondly it appears that the parents of the deceased are prone in exaggerating and magnifying the fault of the inlaws of their daughter. Under these circumstances findings of the trial court qua the case being of dowry death are not sustainable.

The question then arises whether Mst. Surinderjit Kaur had committed suicide or some other reason than maltreatment by her husband and motherin law. In this regard it is noteworthy that the above letter Annexure P7 does establish that the deceased was not happy at the house of her inlaws. The letter sounds a note of helplessness on the part of the victim and resiling her to her own lot and taking recluse of her destiny. Thus this letter supports the testimony of Dalip Singh father of the deceased and Sardul Singh (PW6) that the deceased used to be treated with cruelty by her husband and motherinlaw and she was reluctant to reside with the latter. The explanation to Section 498A of the Indian Penal Code defines cruelty by husband or relative of a woman as under :

"(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

A bare perusal of (a) part of the explanation produced above leaves no doubt that any wilful conduct of the husband or his relations which is likely to cause harassment to the extent of driving her to commit suicide would amount to cruelty. If that is so then presumption would be raised against the husband and relation of the husband under Section 113A of the Evidence Act regarding the abetment of the suicide by wife provided the ingredients mentioned therein are fulfilled. Section 113A of the Act reads as under :

"When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation : For the purpose of this section "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code."

The explanation appended thereto provides that term cruelty shall have the same meaning as in Section 498A of the Indian Penal Code of 1860. In order to raise this presumption against the husband or the relations of the husband it has to be proved that she has committed suicide within a period of seven years from the date of her marriage and (ii) that her husband or such relative of her husband had subjected her to cruelty. Thereafter the (sic) may raise presumption having regard to all the circumstances of the case that such suicide had been abetted by her husband or by such relative of her husband. In the case in hand the marriage took place on 6.12.1987 whereas Mst. Surinderjit Kaur committed suicide on 19.5.1988. Thus under the circumstances of the case there is no option but to raise a rebuttable presumption against the husband and motherinlaw regarding abetment of suicide by Mst. Surinderjit Kaur. The accusedappellant have failed to rebut this presumption by proving that the deceased had committed suicide due to some other cause. The contention of the learned counsel for the appellants that Jaswant Kaur appellant used to reside separately from Rajinder Singh co accused and there was no question of her treating the deceased with cruelty, is of no consequences especially when it is admitted case of the parties that both of them used to reside in portion of the same house at Barnala. The factum that Dalip Singh father of the deceased had not imputed any act of cruelty to other members of the family of the appellants is also eloquent of his being truthful witness. As already discussed, the deceased was not suffering from any mental ailment. Thus bald assertion of the accused appellant in this regard is of no consequence to hold that she had committed suicide due to mental disturbance.

The question then arises whether the conviction of the appellants can be recorded for an offence punishable under Section 306 of the Indian Penal Code in the absence of any specific charge in this regard. It is noteworthy that the abetment to suicide is a minor offence of the one punishable under Section 304B of the Indian Penal Code. The appellants were aware of the factum that the deceased had committed suicide on account of their maltreatment. Dalip Singh and Sardul Singh were crossexamined at length in this regard. Consequently no prejudice has been caused to the accused due to nonframing of the charge under Section 306 of the Indian Penal Code. In view of the above findings, the appellants are acquitted of the charge for an offence under Section 304B of the Indian Penal Code as order of conviction and sentence of the trial court in this regard being sustainable. They are, however, found guilty and convicted of the offence abetting the suicide punishable under Section 306 of the Indian Penal Code.

Regarding quantum of sentence Mr. Mann learned counsel for the appellants contends that Mst. Jaswant Kaur appellant being old lady should be leniently dealt with. There is some force in this contention as she is about 72 years old according to her statement recorded under Section 313 Cr.P.C. by the trial court. Thus under circumstances of the case Rajinder Singh appellant is awarded 10 years Rigorous Imprisonment while Mst. Jaswant Kaur appellant seven years simple Imprisonment for offence punishable under Section 306 of the Indian Penal Code by accepting the appeal to the extent referred to above.

In view of the above findings Criminal Revision petition for enhancement of sentence preferred by Dalip Singh complainant fails and is dismissed.