State of Punjab vs Pawan Kumar

A.P. Chowdhri, J.

Harmesh Chand (23), his brother Pawan Kumar (21) and their father Ram Dhari (50) were tried for offences under Section 302/304 of the Indian Penal Cod by the Additional Sessions, Judge, Sangrur, and acquitted by judgment dated November 24, 1983. Aggrieved by the acquittal, the State has preferred this appeal for obtaining leave under section 378 of the Code of Criminal Procedure. Ashok Kumar, brother of the deceased, who lodged the first information report in this case, has filed Criminal Revision No. 269 of 1984 assailing the said acquittal and the said revision petition is also being disposed of by this judgment.

Saroj alias Neelam, deceased in this case, was married to Harmesh Chand accused on April 16, 1982. Within less than three months of the marriage, the she died of extensive burn injuries at the house of her husband and inlaws on July 8, 1982, at 6/7 a.m. The first information report was lodged by the deceased''s brother Ashok Kumar PW3 at 12.20/12.45 p.m. the same day. Special report was received by the Judicial Magistrate, at Sangrur at 7.45 p.m. According to the first information report, the parents of the girl had agreed to spend and did actually spend Rs. one lakh on the marriage in accordance with the wishes of the husband and his father. They had given one scooter, refrigerator, gold ornaments weighing about 25 tolas as apart from furniture, clothes, beds, utensils and case. Thereafter from time to time they had been giving cash amounts to the husband and fatherinlaw in accordance with the custom prevalent in their family. The husband and the fatherinlaw of the girl were, however, not happy with the dowry given by the parents of the deceased. The deceased complained to her brother and father that her inlaws and husband taunted her for bringing nothing in dowry. Her husband once gave her a beating. On July 7, 1982, Ashok Kumar visited his sister on the eve of the festival called BhaiBhinna and offered Rs. 21/ each to the fatherinlaw and motherinlaw of his sister. They refused to accept the above amounts. Ashok Kumar offered to take his sister alongwith him to his parents'' house, upon which the inlaws of Saroj told him that they would send Saroj to her parents'' house once and for all times. Ashok Kumar returned without bringing Saroj to his house and narrated the entire incident to his parents. On the day of occurrence i.e. July 8, 1982, Ram Nath son of Kaka Ram, also a resident of Dhuri, to which place parents of Saroj belonged, told him that he had received a telephonic message from Sunam, where Saroj was married, that Saroj had died. The deceased''s brother and other relations went to Sunam and found Saroj lying dead. The first information report was concluded in the following words :

"From the circumstances from the date of marriage till yesterday and the attitude of her inlaws towards my sister, it appears that she has not committed suicide but Ram Dhari, Harmesh Kumar, Shanti Devi, Pawan Kumar, Naresh Kumar and Surinder Kumar have killed my sister Saroj by making a preplan. I have made my statement with you at the spot. Justice may be done."

Postmortem examination was conducted on the dead body by Dr. Amrish Mittal (PW2). At the time of postmortem examination, Dr. Mittal noted that there were five gold bangles in the right arm besides three glass bangles. There was a golden ring in the right little finger. The left rim was wearing six gold bangles besides five glass bangles. There were two rings of gold. There was also earring in the left ear and payal on the ankles of each leg. There was also a nose pin. In his opinion, the cause of death was shock and burns which were sufficient in the ordinary course of nature to cause death. The burns were antemortem in nature. In crossexamination, Dr. Mittal identified the gold ornaments Exhibits P1 to P19 and nose pin Exhibit P22, besides silver payals Exhibits P20 and P21 as having been removed from the dead body of Saroj. He also stated that there was no smell of kerosene oil coming from the dead body or the clothes of the deceased. In his opinion the deceased must have died within five to seven minutes of burning.

The prosecution also examined Ashok Kumar, brother, and Bhim Sain, nephew of the deceased, with regard to the performance of the marriage, the giving of gifts, the dissatisfaction of the husband and inlaws over the dowry, their taunts to the deceased etc. Raj Kumar PW7 and Lakhi Ram PW9, who are respectively the husbands of the two other sisters of the deceased, also married at Sunam, deposed about the extrajudicial confession made by Harmesh Chand accused and his brother Pawan Kumar and S.I. Jhanda Singh, (PW10) and District Inspector Bakhshish Singh (PW1) who partly investigated this case.

The plea of the accused persons was one of denial and false implication on the basis of suspicion. The accused examined 16 witnesses in defence.

The main reliance of the prosecution was on the testimony of Raj Kumar (PW7) and Lakhi Rain (PW9) to prove the extrajudicial confession made by Harmesh Chand and his brother Pawan Kumar before them at Sunam on April 9, 1982 i.e. the day following the occurrence.

On an appreciation of evidence, the learned trial Court did not accept the evidence relating to extrajudicial confession. There being no other evidence to connect the accused with the crime, the accused were acquitted. Hence this appeal and revision.

It may be stated at once that the offence of dowry death under section 304B of the Indian Penal Code was inserted by Amending Act No. 43 of 1986 with effect from November 19, 1986, i.e. long after the present occurrence took place on July 8, 1982. It follows that even though the unfortunate death in the present case took place within less than three months of the marriage, the prosecution cannot take benefit of the newly inserted provision of law. It may also be stated here that from the very beginning the prosecution case was one of murder punishable under section 302 of the Indian Penal Code. Admittedly there is no direct evidence. The prosecution relies on the testimony of Raj Kumar (PW7) and Lakhi Rain (PW9) regarding extrajudicial confession said to have been made by Harmesh Chand and Pawan Kumar. We have very carefully scrutinised the record with the assistance of the learned counsel for both the parties as also the learned counsel for the complainant bearing on the question of the extrajudicial confession. According to the prosecution, the said extrajudicial confession was made by the said accused on July 9, 1982. The accused on the other hand, has placed on record evidence including documentary evidence to show that in fact Pawan Kumar and Harmesh Chand had been arrested by the police on July 8, 1982, the date of occurrence, and, therefore, the story of their having made the extrajudicial confession on the following day falls to the ground. Ram Nath (PW4), who belongs to Dhuri, and who according to the prosecution received a telephonic call from his cousin Ashok Kumar (PW5) from Sunam, with regard to the death of Saroj, engaged Shri A. Vishwanathan and his son Shri V. Ramswaroop. Advocates, for an anticipatory bail application in the High Court. Shri A. Vishwanathan having died, his son Shri V. Ramswaroop, Advocate, appeared as DW16 and deposed that he alongwith his father had been engaged by the said Ram Nath son of Kaka Ram (PW4) for anticipatory bail. He had signed his powerofattorney which was signed in token of acceptance both by his father and himself. The original application for anticipatory bail was signed by Ram Nath. The application was supported by an affidavit which was duly sworn by Ram Nath. In paragraph 5 of the application and the affidavit, it was categorically stated that Harmesh Chand and Pawan Kumar had been arrested by the police on July 8, 1982. In order to wriggle out of the aforesaid admission, we were taken through relevant portions of the statement of Ram Nath (PW4). Ram Nath tried to make out two points; one, that the counsel really engaged was Shri A. Vishwanathan and not his son, and two that instruction on the basis of which application including the aforesaid admission was drafted were given by one Kailash Chand who accompanied Ram Nath and not by him. It is not disputed that the Vakalatnama admittedly signed by Ram Nath was in favour of both Shri A. Vishwanathan as well as Shri V. Ramswaroop, Advocates. Both the said advocates had signed the Vakalatnama in token of acceptance. The instructions were given by Kailash Chand within the immediate presence and hearing of Ram Nath. When the matter had been typed out, he duly signed the application as well as the affidavit. Admittedly, he is a matriculate and can read English. We are satisfied that it is not possible to explain the categorical admission made in the application and the affidavit that Harmesh Chand and Pawan Kumar had been arrested by the police on July 8, 1982. If that is so, the evidence regarding extrajudicial confession said to have been made on July 9, 1982, cannot possibly be believed and the view taken by the learned trial Court on this aspect of the case does not warrant any interference.

Confronted with this situation, learned counsel appearing for the appellant made a last minute effort and suggested that there was ample evidence on record to warrant a conviction of the accused under section 306 of the Indian Penal Code. In this connection, reference was made to Gurbachan Singh v. The State of Punjab, 1991(1) RCC 279 in which it was held that the presumption referred to in section 113A of the Evidence Act, as inserted by Act No. 46 of 1983, being a rule of procedure applies to cases where the occurrence took place prior to the said amendment. This contention does not advance the case of the prosecution because it cannot be suggested that a person can be convicted only on the basis of the presumption contained in section 113A of the Evidence Act. In order to find a person guilty, the prosecution has to necessarily prove in the first instance that the deceased committed suicide. The conclusion reached by the trial Court is that it was not a case of suicide. In fact, in the first information report the brother of the deceased categorically stated that this was not a case of suicide. There can be hardly any one better informed as to the true state of affairs than the real brother of the deceased who lodged the first information report within a few hours of the occurrence. His statement in the first information report, therefore, that it was not a case of suicide cannot be lightly ignored. The other circumstances relied on by the trial Court and canvassed by Shri H. L. Sibal, learned counsel for the accused, before us were total absence of smell of kerosene, the fact that the deceased was wearing almost 22 gold ornaments on her person, that she had her breakfast that morning and that an empty pressure stove was found lying at the place of occurrence by the Investigating officer. In the totality of facts and circumstances, it is not possible to rule out reasonable possibility of death by accident. In any case, interference by this Court sitting in appeal against acquittal is not called for.

For the foregoing reasons, we find no merit in the appeal, which is accordingly dismissed. Criminal Revision No. 269 of 1984 is also dismissed.