Crl. Appeal No. 638-SB of 1999 {1}
In the High Court of Punjab and Haryana at Chandigarh
Crl. Appeal No. 638-SB of 1999
Date of Decision:December 17, 2009
Joginder Singh and another
---Appellants
versus
State of Haryna
---Respondent
Coram: HONBLE MR. JUSTICE GURDEV SINGH
***
Present: Mrs. K.K.Kahlon, Advocate,
for the appellants
Mr. Raja Sharma, Assistant Advocate General,
Haryana
***
GURDEV SINGH, J.
The appellants-accused Joginder Singh and Harbans Kaur were
tried by learned Additional Sessions Judge, Kaithal. Both of them were
convicted under Section 498-A of the Indian Penal Code and were
sentenced to under go rigorous imprisonment for a period of one year and
to pay a fine of Rs. 1000/- each and in default thereof, to further undergo
rigorous imprisonment for a period of two months. Joginder Singh- accused
was also convicted under Section 307 IPC and was sentenced to undergo
rigorous imprisonment for a period of five years and to pay a fine of Rs.
Crl. Appeal No. 638-SB of 1999 {2}
6,000/- and in default thereof, to further undergo rigorous imprisonment for
a period of six months whereas Harbans Kaur was acquitted of the offence
under Section 307 read with Section 34 IPC. The present appeal has been
directed against that conviction and sentence.
The facts, in brief, are that Surjit Kaur, complainant, PW-4,
was married to Joginder Singh-accused son of Harbans Kaur-accused. At
the time of the marriage, the father of the complainant had given sufficient
dowry as per his capacity. From this wedlock, a daughter and a son were
born, but the son had died soon after the birth. Both the accused told the
complainant that they would allow her to live in their house only in case
she would bring a buffalo and Kara (bangle) of gold from her parents.
When that demand was not fulfilled, the accused started beating her. When
her brother Gurdev Singh visited her, she disclosed that fact to him, who
promised to fulfill that demand of the accused in near future. The accused
were given Rs. 10,000/- by her father for purchasing a buffalo, who
promised to give kara of gold after arranging for the money. After that, the
behaviour of the accused was good for some time and thereafter,they
started beating her on the plea that the kara of gold had not been provided
by her father. On 22.10.1997, at about 6.00 p.m., on the asking of both the
accused, she started cooking the meals. Joginder Singh, who was already
under the influence of liquor, brought a container of kerosene and poured
the same on her and then set her on fire with the help of match stick. She
raised alarm which attracted some of the villagers, who put off the fire
with the help of water. On the asking of those persons, Joginder Singh-
accused brought him to a private hospital at Kaithal, and admitted her at
that place. Both the accused threatened her that in case she would make a
Crl. Appeal No. 638-SB of 1999 {3}
statement against them, they would not allow her to live in their house,
even if she survives. About all these facts, Jagat Singh, PW-6, father of the
complainant, had made a statement, Ex. PH, before Mewa Singh ASI, PW-
7, who after recording the police proceedings, Ex. PH/1, sent the same to
the police station and on the basis thereof, formal FIR Ex. PH/2 was
recorded against the accused under Sections 307/34 and 498-A IPC. The
complainant was medically examined by the doctor, who found superficial
and deep burns on her neck, face, chest and left arm. The ASI went to the
place of occurrence and after inspecting the same, prepared the rough site
plan, Ex. PK, with correct marginal notes. He recovered one empty
container of kerosene from the spot, which was taken in possession vide
memo Ex. P.A. He went to the hospital and made application, Ex. PF, to
the doctor for enquiring about the fitness of the complainant/injured to
make her statement. She was declared fit by the doctor as per endorsement
Ex. PF/1. Thereafter, the statement of the complainant was recorded. In the
course of investigation, statements of the witnesses were recorded and the
relevant documents were taken into possession. The map of scale, Ex. PB,
was got prepared from Ram Niwas, Draftsman, PW-5. After completion of
the investigation, challan was put in before the court for the trial of the
accused.
After the case was committed to the court of Session, the same
was entrusted to learned Additional Sessions Judge, Kaithal, who charged
the accused for the offences under Sections 307 read with Section 34 and
498-A IPC. They pleaded not guilty to the charge and claimed trial.
To prove the guilt of the accused, prosecution examined
Banarsi Singh SI, PW-1, Ajaib Singh, PW-2, Dr. Ram Kirti Garg, PW-3,
Crl. Appeal No. 638-SB of 1999 {4}
Surjit Kaur, PW-4, Ram Niwas, PW-5. Jagat Singh, PW-6 and Mewa Singh
ASI, PW-7.
After the close of the prosecution evidence, the accused were
examined by the learned Addl. Sessions Judge under Section 313 Cr.P.C..
All the incriminating circumstances appearing against them in the
prosecution evidence were put to them in order to enable them to explain
the same. They denied all those circumstances and pleaded their false
implication. It was stated by them that Harbans Kaur-accused, had gone to
village Rajoli, District Ambala, in connection with the demise of her sister-
in-law, Thakur Kaur and stayed there from 20.10.1997 to 24.10.1997.
The accused were called upon to enter in their defence. They
examined Ishwar Singh Constable, DW-1 and Ghasita Singh, DW-2 in
their defence.
After hearing the Public Prosecutor for the State and learned
defence counsel for the accused and going through the records of the case,
Additional Sessions Judge convicted and sentenced the accused as
aforesaid.
Notice of the appeal was given to the State.
I have heard learned defence counsel for the accused and
Assistant Advocate General, Haryana and have carefully gone through the
records of the case.
It has been submitted by learned defence counsel for the
accused that the complainant was under depression on account of death of
his newly born son and received the burn injuries accidentally while
cooking food. That fact stand proved from the evidence produced on the
record and still the learned trial court did not take cognizance of that fact. It
Crl. Appeal No. 638-SB of 1999 {5}
cannot be concluded from the evidence produced by the prosecution that the
complainant was being treated with cruelty in connection with the demand
of dowry and that an attempt was made on her life by setting her on fire with
the help of kerosene. She also submitted that from the evidence produced
by the accused in their defence, it stands proved that Harbans Kaur –
accused, was not present at the time of alleged occurrence as she was away
to the village of her sister-in-law to console her death. The alibi taken by
that accused firmly stand proved on the record. She has prayed for their
acquittal.
On the other hand, learned counsel for the State has contended
that the positive evidence has been produced by the prosecution for proving
the guilt of the accused which consists of the statement of Surjit Kaur-
complainant and that finds corroboration from the other evidence, including
the medical evidence. Each and every fact required for proving the
conviction of the accused under Sections 307 and 498-A IPC has been
proved by cogent and convincing evidence. The accused have failed to
prove the alibi of Harbans Kaur-accused.
The husband or the relative of the husband of a woman is said
to have committed an offence under Section 498-A IPC, if he or she
subjects such woman to cruelty which means the harassment of the woman
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. To prove
all the facts which constitute the said offence, complainant-Surjit Kaur, PW-
4, made a categorical statement in the Court. She stated that after the birth
of the girl child, both the accused told her that she shall be allowed to reside
Crl. Appeal No. 638-SB of 1999 {6}
with them in case she would bring a buffalo and a kara of gold from her
parents. She conveyed that demand of the accused to her brother-Gurdev
Singh, who came to meet her four months prior to this occurrence. She
had written a letter, Ex. PG, to her parents that the accused were raising a
demand of Rs. 10,000/- as additional dowry. Her father arranged for Rs.
10,000/- and gave that amount to the accused. She was being mal-treated
by both the accused on account of the non-meeting of their demands. This
statement of the complainant has been supported by her father-Jagat Singh,
PW-6. He has also deposed that the letter, Ex. PG, written by the
complainant was received by him. This letter, Ex. PG, which is an inland
letter card, bears the postal stamp and seal. This letter creates confidence in
the genuineness of the statement of the complainant and her father. The
demand made by the accused was projected in this letter also. In spite of the
lengthy cross examination of both these witnesses, the accused have not
been able to extract any such circumstance or fact, on the basis of which it
may be concluded that they have not made correct statements in the court or
that they are not worthy of belief. The accused produced evidence in their
defence. That evidence is only regarding the false involvement of Harbans
Kaur in the other incident in respect of which, FIR was recorded under
Section 307 IPC. That evidence has nothing to do with the evidence under
Section 498-A IPC. There is nothing on the record for concluding that the
above discussed evidence produced by the prosecution is not worthy of
reliance. From that evidence, it stand proved that Joginder Singh-accused
husband and Harbans Kaur-accused, mother of that accused, harassed the
complainant with a view to meet their unlawful demand of buffalo,
Rs. 10,000/- and a kara of gold and on account of failure of her relatives to
Crl. Appeal No. 638-SB of 1999 {7}
meet those demands. A correct finding was recorded by learned Additional
Sessions Judge that both the accused committed offence under Section 498-
A IPC and the same is hereby affirmed.
Regarding the other incident, it was stated by Surjit Kaur,
complainant- that on 22.10.1997 at about 6-00 p.m., as per the instructions
of her mother-in-law, she was cooking food. Joginder Singh-accused started
taking liquor and after some time he went inside and brought a small tin
containing kerosene, which was sprinkled on her. He lit a match stick and
throw the same on her body setting her ablaze. At that time Harbans Kaur
was also present. She started crying and on hearing those screams, many
persons rushed to that place, who extinguished the fire by pouring water on
her body. They asked her husband to shift her to a hospital and
accordingly, she was taken to the hospital. She also deposed that about this
fact when she made a report before the police.
It was deposed by Mewa Singh ASI, PW-7 that this statement
Ex. PH, was made before him by the complainant and on the basis thereof ,
FIR Ex. PH/2 was recorded. According to him, it was on 31.10.1997, he
was informed about this incident by Jagat Singh, PW-6, and thereafter he
had gone to the hospital, where the statement of the complainant was
recorded. Thus, there is a delay of nine days in reporting the matter to the
police.
Question to be determined is :-
“whether the prosecution has been able to give any reasonable
explanation for that delay”.
According to Surjit Kaur-complainant, PW-4, when she was
being shifted to the hospital, the accused had told her that in case she dared
Crl. Appeal No. 638-SB of 1999 {8}
to lodge a report against them, she will not be allowed to reside with them.
Her parents came to see her after 8/9 days and only then she lodged the
report with the police.
According to Dr. Ram Kirti Garg, PW-3, the complainant was
admitted in her hospital, namely, Kirti Hospital, Kaithal, on 22.10.1997
with 20% burn injuries on her neck, face, anterior chest part/wall and left
arm, which were superficial and deep burns. She has stated during her
cross-examination that the injured had told her that she had suffered those
injuries while cooking food and had no grudge against any one and did not
want to take legal proceedings of any kind against any one. She proved
that statement of the injured as EX. DB. She was re-examined by the
prosecution and at that time it was suggested to her that the injured never
disclosed any such fact to her.
A perusal of Bead Head Ticket Ex. PE, containing the
statement Ex. DB, makes it very much clear that the said statement and the
history of receipt of burn injuries while cooking food in the kitchen have
been written subsequently with a different ink. That statement does not
bear the thumb mark or signature of the injured. The same is in Hindi
script, whereas the remaining part of Bead Head Ticket is in English script.
That statement even does not bear the attestation of the said doctor. From
the circumstances and the evidence produced on the record, the stand taken
by the complainant becomes very much probable. It appears that on account
of the threats having been given by the accused, she did not report the
matter to the police. After the doctor found the burn injuries on her person,
she was required to report the matter to the police, but the same was not
done. In all these circumstances, she was bound to support the version of
Crl. Appeal No. 638-SB of 1999 {9}
the accused that the injured had disclosed to her that the injuries were
received accidentally while cooking food in the kitchen. It was only after
the father of the complainant appeared on the scene, that the police came in
action and recorded the statement of the complainant. The delay in lodging
the FIR, in the present case, stands explained.
To prove his alibi, Harbans Kaur-accused examined Ishwar
Singh, Constable, DW-1, who proved on record carbon copy of the
application Ex. DC, which was given by this accused to the Superintendent
of Police Kaithal. In that application, she had made a prayer that on the date
of the occurrence, she was away to village Rajoli and that an enquiry be
conducted into that aspect. The above said Constable deposed during his
cross examination that an enquiry was conducted by Ajaib Singh ASI,
who submitted his report on 6.12.1997, and the contents of the application
were not found to be true. Thus, the version put forward by Harbans Kaur-
accused regarding her non-presence at the time of occurrence in the house,
was not found to be correct by the police.
This accused also examined Ghasita Singh, DW-2, who is
Sarpanch of village Rajoli. He produced in court the original resolution
dated 16.11.1997 and proved on record copy thereof Ex. DD. In this
resolution it was mentioned that on 20.10.1997, Harbans Kaur accused had
come to village Rajoli and she had to stay there up to 24.10.1997. It is
important to note as to how this resolution was passed. According to the
above said Sarpanch, an affidavit was given by Makhan Singh, brother of
this accused and thereafter, the Panchayat assembled and passed the
resolution. This evidence produced by the accused regarding her alibi
cannot be treated as a direct evidence. She could have examined some
Crl. Appeal No. 638-SB of 1999 {10}
witness from that village that she remained present in that village from
20.10.1997 to 24.10.1997 but no such person was examined by her. On the
basis of this defence evidence, it cannot be concluded that she was away to
that village at the time of the occurrence. Moreover, this contention stands
falsified from the statement of Dr. Ram Kirti Garg, PW-3, who stated that
when the injured was admitted in the hospital, her husband and mother-in-
law were present. Her statement inspires confidence in the evidence
produced by the prosecution that Harbans Kaur-accused was very much
present in the house on 22.10.1997, when the occurrence took place.
In view of what has been said above, this appeal is dismissed.
The conviction and sentence of the accused are upheld.
In case, they are on bail, they be taken into custody for
undergoing the remaining sentence of imprisonment imposed upon them.
(GURDEV SINGH)
JUDGE
December 17, 2009
PARAMJIT