Tarsem Singh vs State of Punjab

R.L. Anand, J. (Oral)

This Criminal appeal filed by Tarsem Singh (husband), Gurnam Singh (fatherinlaw), Agya Kaur (motherinlaw) and Angrej Singh (devar of Smt. Surinder Kaur alias Jaswinder Kaur) has been directed against the judgment and order dated 12.8.1997 passed by the court of Additional Sessions Judge, Patiala, who convicted all the four appellants under section 304B of the Indian Penal Code and sentenced each one of them to undergo rigorous imprisonment for a period of seven years.

Brief facts of the case are that on or about 3.10.1995 during day time in the revenue limits of village Suron, death of Smt. Surinder Kaur alias Jaswinder Kaur wife of Tarsem Singh appellant was caused by burns otherwise than in the normal circumstances within seven years of her marriage and said Smt. Surinder Kaur alias Jaswinder Kaur was subjected to cruelty and harassment by the appellants in connection with dowry demands of scooter, colour television etc. The occurrence at the trial was unfolded by Shri Dalip Singh who is real brother of the deceased. According to this witness they are three brothers and five sisters. All of them are married. Deceased Surinder Kaur was the youngest sister and she was married to Tarsem Lal appellant on 17.1.1993. The complainant stated that his family had given dowry according to its status. About six months after marriage all the appellants started harassing and beating Surinder Kaur. They taunted Surinder Kaur on the ground that the articles brought by her in dowry were not of good quality and they further demanded a scooter and a colour television. It is alleged by the complainant that he and his family members had been sending back Surinder Kaur with a request that they were not in a position to give these articles. Surinder Kaur again came to the house of her parents and complained that the appellants were harassing her too much and were giving beating to her. As a result, he and his family members called Ajaib Singh sarpanch of their village and Member Panchayat Dilbagh Singh. They advised the complainant to avail time and make a request to the appellants not to maltreat the deceased. In August 1995, Surinder Kaur deceased again came to the house of her parents in village Alampur. It was Raksha Bandhan occasion and she complained to her brothers that all the appellants had again maltreated her on account of the fact that she had not brought scooter and colour television. It is alleged by the complainant that his wife Jasbir Kaur left the deceased at the house of her inlaws with the promise that they would arrange either colour television or scooter to the appellants after selling the crop.

The story of the prosecution further proceeds that on 3.10.1995 at about 4.00 p.m. the complainant received message that Surinder Kaur his sister had received burn injuries due to bursting of stove. Resultantly, the complainant alongwith Harminder Singh, his brotherinlaw (sala), Sucha Singh and Ajaib Singh went to village Suron at the house of the appellants. All the four appellants were present there. The dead body of Surinder Kaur was lying on the cot. The complaint went inside the room where the occurrence had taken place. The stove was intact. He suspected that the appellants might have killed his sister Surinder Kaur by setting fire to her. Resultantly, the complainant left Harminder Singh and Sucha Singh at the spot and he alongwith Ajaib Singh went to the Police Station Sadar Rajpura for lodging a report but on the way the police party headed by ASI Karnail Singh met them at the turning of the road near Octroi Saidkheri. He allegedly made statement Ex.PD before ASI Karnail SIngh. It was read over and explained to the complainant who signed the same in token of its correctness.

The motive according to the complainant is that Smt. Surinder Kaur deceased had not given birth to any child inspite of the fact it was her second marriage with appellant Tarsem Singh. A.S.I. Karnail Singh appeared as PW.6 and he made endorsement Ex.PD/1 on the said statement Ex.PD of Dalip Singh and it was sent to the Police Station Sadar Rajpura for registration of the case on the basis of which formal F.I.R. Ex.PD/2 was recorded. Thereafter he alongwith complainant came to the place of occurrence. He found dead body of Surinder Kaur lying on cot in the courtyard of the house of the appellants. He prepared the Inquest Report Ex.PC and the dead body was sent for post mortem examination. He inspected the place of occurrence and prepared rough site plan Ex.PH. He also took into possession stove alongwith tanki Ex.P.1 and match box Ex.P.2. He recorded statements of the witnesses. He searched for the appellants. On the next day of the occurrence, he received copy of the post mortem report and clothes of the deceased besides some other articles. Appellants were finally arrested and on completion of the investigation they were challaned under section 304B of the Indian Penal Code and the challan was submitted in the court of Sub Divisional Judicial Magistrate, Rajpura who supplied copies of the documents to the accusedappellant. Vide order dated 9.1.1996, the Trial Court committed the appellants to the court of Sessions.

Vide order dated 2.2.1996 appellants were chargesheeted under Section 304B I.P.C. Charge was read over and explained to the appellants which they pleaded not guilty and claimed trial.

In order to prove the charge, prosecution examined Dr. O.P. Aggarwal (P.W.1) who conducted the post mortem examination and found that the whole body of Surinder Kaur was burnt except sole of right foot, smell of K. oil was present in her clothes. Post mortem staining were cherry red in colour. Heat haematoma was present in the skull cavity. The burns were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. Time between death and burns was immediate and between death and post mortem was about 24 hours. He issued PA carbon copy of the Post Mortem Report of Surinder Kaur. The prosecution examined Shri Dalip Singh complainant (PW.2), Ajaib Singh (PW.3), Head Constable Ashwani Kumar (PW.4), Satnam Singh Draftsman (PW.5) and Investigating Officer Karnail Singh (PW.6).

On closure of the prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and plea of Gurnam Singh appellant was as follows :

"I am innocent. We have been falsely implicated in this case. I opt the plea taken by my coaccused Tarsem Singh."

The plea of Tarsem Singh appellant was as follows :

"I am innocent. I or my any family member never demanded any dowry or maltreated Jaswinder Kaur alias Surinder Kaur. She was earlier married but she could not pull on with her previous inlaws. She was again married and did not bear any child either from her previous marriage or her marriage with me. We got her treated but she was depressed on account of this score. After the death of Jaswinder Kaur, her brother got foisted this false case against me, my parents and my brother."

The defence of Angrej Singh appellant was that he was innocent. They have been falsely implicated in this case. He adopts the plea taken by coaccused Tarsem Singh. Similarly Smt. Agya Kaur states that she is innocent. She adopts the plea taken by her coaccused Tarsem Singh.

When called upon to enter their defence the accusedappellants examined Dr. Parshotam Lal, Garg Maternity and Nursing Home, Rajpura, as DW.1 who deposed that Jaswinder Kaur came to his clinic on 6.2.1994 with problem of history of bleeding. Ultrasound test was done and treatment was given. The deceased again came to his clinic on 16.8.1995 with problem of bleeding. Again ultrasound was done and eight weeks pregnancy was noticed. There was no heart beating of the child. It was a case of misabortion. She had conceived child twice but it did not ripe into the birth of a child. This Doctor proved Ex.DB and Ex.DC two prescription slips which were issued by him. In crossexamination this Doctor admitted that there was nothing to show that Jaswinder Kaur was incapable of giving birth to a child. Bhajan Kaur is neighbour of the house of the appellant and she was examined by the defence as D.W. 2 who stated that on the day of the occurrence she saw smoke coming from the house of the appellants. She raised raula and reached there. She saw Jaswinder Kaur alias Surinder Kaur was having K. oil sprinkled on her clothes and her body was on fire. Tara Singh appeared as DW.3 who also deposed that deceased Surinder Kaur sustained burn injuries. Defence also examined Subegh Singh (DW.4) and Rame Shah, S.I., Additional S.H.O., Police Station Rajpura.

Learned trial Court relied the story of the prosecution in toto and rejected the defence version and convicted and sentenced all the four appellants in the manner stated above. Feeling aggrieved of their conviction and sentence, they filed the present appeal.

I have heard Shri A.P.S. Deol, learned counsel appearing on behalf of the appellants and Shri Randhir Singh, Deputy Advocate General, Punjab who appeared on behalf of the State and with their assistance have gone through the record of this case.

Section 304B lays down that where the death of a woman is caused by burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand of dowry such death shall be called dowry death and such husband or relative shall be deemed to have caused her death. As per explanation for the purpose of subsection, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. Thus reading of the above section would show that following is required by the prosecution in order to sustain conviction under Section 304B of the Indian Penal Code:

(1) That the death of a woman has been caused by any burns or bodily injury or occurs otherwise than normal circumstances. This ingredient would show that it is incumbent upon the part of the prosecution that it must show that the death of the victim has taken place otherwise than normal circumstances. The words burns or bodily injury are only illustrations.

(2) The second ingredient of Section 304B is that such death in abnormal circumstances should be within seven years of her marriage.

(3) The third is that it should also be proved by the prosecution that soon before death the deceased was subjected to cruelty or harassment by her husband or relative for or in connection with demand of dowry.

Before I enter into actual discussion, I would like to incorporate the provisions of Section 113B of the Indian Evidence Act, 1872. According to this section when the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. The Legislature has introduced section 113B with the specific purpose realising that burn deaths are caused in the house of inlaws of the victims. To prove such deaths by direct evidence may perhaps become impossible because such deaths may occur in privacy or secrecy. To cover this difficulty, the Legislature introduced the provisions of Section 113B of the Indian Evidence Act, 1872 so as to make the burden of the prosecution a little bit lighter. Now it has to be seen what has been proved by the prosecution and against whom. It is common case of the parties that death of Smt. Surinder Kaur alias Jaswinder Kaur took place within seven years of her marriage. It also stands proved and it has also not been challenged by the appellants that she died under abnormal circumstances. The only dispute which was raised by the learned counsel for the appellants that it has not been proved by the prosecution that the deceased was subjected to cruelty or harassment for demand of dowry soon before her death. In support of this contention Mr. Deol had relied upon the judgment of the Hon''ble Supreme Court titled as Sham Lal v. State of Haryana, 1997 Criminal Law Journal 1927. I am not in agreement with this submission of Mr. Deol. The question "before death" will remain question of fact in every case. The Legislature has not used the word in Section 304B "immediately" before death nor it has used the word after marriage and before death. Soon before death has to be determined in the light of the evidence which is led by the prosecution. In such like cases it will be difficult for the prosecution that the deceased was subjected to cruelty or harassment within 15 days or 20 days in connection with demand of dowry before her death. This was not the intention of the Legislature in view of Section 113B of the Indian Evidence Act. In such like cases if the victim is going to be harassed by the husband or his relative, she is not likely to be harassed daily. From the evidence led by the prosecution a reasonable inference can be drawn that the deceased was harassed in the family of her inlaws in connection with demand of dowry and there had been occasions when the husband or his relatives had been tensing mind of the victim to bring articles of dowry or costly articles. Thus a reasonable inference can be drawn that the deceased was subjected to cruelty or harassment for demand of dowry. In the opinion of the court, clear meaning has to be given to "soon before her death" though this question will also remain question of fact depending upon the facts of each case. Now the story of the prosecution at the trial was that the deceased was subjected to cruelty firstly after about 6 months of her marriage by the appellants and there was alleged demand of scooter and colour television. It is further alleged that last time the deceased was subjected to cruelty in the month of August, 1995 when ceremony of Rakhi (Raksha Bandhan) was there. In the present case the deceased died on 3.10.1995. A gap of two months between the death and last demand has a direct nexus. Therefore, it can be reasonably inferable that the victim was subjected to cruelty in connection with demand of dowry soon before her death, otherwise there was no occasion on the part of the deceased to commit suicide. Though an effort was made by the learned counsel appearing on behalf of the appellants that the deceased might have committed suicide of her own not connected with the demand of dowry but because of her past life and existing relations with her relatives. According to Mr. Deol, the deceased was unfortunate lady. Firstly she could not pull over properly with her first husband primarily for the reason that she could not gave birth to a child. Second time also she could not give birth to a child from the present matrimonial alliance and for that reason she had been taken to the hospital of Dr. Parshotam Lal somuchso inspite of the fact that the deceased conceived a child but the foetus could not develop properly. Learned counsel submitted that these incidents could lead to deep depression upon the mind of the victim as a result of which she might have committed suicide not due to demand of dowry. The learned counsel went to the extent by saying that the accused would be the last person to demand for dowry because they know that the deceased was earlier married and in these circumstances the appellants would be the last person to raise demand of dowry and therefore the allegations of demand of scooter and colour television are created one on the part of Dalip Singh.

I am not totally impressed with the submissions raised by Shri Deol. If the statement of Dr. Parshotam Lal (DW.1) is read in depth, he is categorical in stating that there is nothing to suggest that the deceased was not capable of conceiving a child. The deceased was a young girl of 28 years and even she could not conceive child from her first husband or from the second husband. It is not believable that she would commit suicide nor there can be an occasion on the part of the family of her inlaws to give taunts and harassment as to why she could not conceive a child inspite of the fact that she was twice married. While dealing cases of dowry death relations of the victim or friends of the victim are best witnesses. The case of the prosecution is categorical that the deceased had been telling to her brothers that she was being subjected to cruelty in connection with demand of scooter and colour television. This Court fully realises that after the death of the victim the relations between the two family becomes strained. Exaggerations are always made so as to rope all the members of the family and I am of the opinion that in the present case also, there was some exaggeration on the part of Dalip Singh when he implicated parentsinlaw of the deceased and Angrej Singh (devar of the deceased) who is young boy of 20 years at the time of incident and was student of plus two. The case of the prosecution is that there was demand of a scooter and colour television. While appreciating the evidence in a criminal case, the broad human probabilities are best yardstick on which the criminal court can always rely is as to who can be beneficiary of such type of alleged dowry articles. There is no evidence on the side of the prosecution that the family members of the appellants were not having colour television. In the modern days it is not such a costly item which cannot be arranged by family members. If the alleged demand of colour television on the part of the appellants is taken out from the record as not reliable then the only demand is of a scooter the beneficiary of which at the most can be the husband appellant No. 1 who also caused harassment and cruelty to the deceased on the ground firstly she had not brought adequate dowry. Secondly she had brought old clothes and thirdly she could not give birth to a child. Thus there is remote possibility that in these circumstances inlaws of the deceased would join hands with their son for the purpose of causing cruelty etc. All pointers go against appellant No. 1 Shri Tarsem Singh. In this view of the matter I extend the benefit of doubt to appellants Gurnam Singh, Agya Kaur and Angrej Singh and acquit them of the charge framed against them. So far as appellant No. 1 Tarsem Singh is concerned, his appeal is hereby dismissed.

Resultantly this appeal is partly allowed. The order of conviction and sentence is hereby affirmed with regard to Tarsem Singh who shall suffer the imprisonment imposed on him by the trial Court. It has been stated at the Bar that Gurnam Singh and Agya Kaur are in custody. They are directed to be released forthwith, if not required in any other case.