Mohinder Singh & Another vs State Of Punjab on 11 November, 2008

Punjab-Haryana High Court
Mohinder Singh & Another vs State Of Punjab on 11 November, 2008

                          Crl. Appeal No. 92-SB of 1997
                          Date of decision : 11-11-2008

Mohinder Singh & another                           ...    Appellants

State of Punjab                                    ...    Respondent.


Present:    Mrs. Baljit Mann, Advocate,
            for the appellants.

            Mr. B.S. Sra, DAG Punjab


This appeal is directed against the judgment and order dated
20.1.1997 passed by the Additional Sessions Judge, Gurdaspur, whereby the
accused-appellants have been convicted under Section 304-B IPC and
sentenced to undergo rigorous imprisonment for ten years each and to
pay a fine of 3000/- each and in default of payment of fine, to undergo
further RI for three months.

Brief facts of the case are that Shamsher Singh lodged an FIR
on 2.11.1990 alleging that his sister Kamlesh Kumari was married to
Parveen Singh six months prior to the present occurrence. After marriage,
whenever Kamlesh Kumari came to meet them, she used to tell about the
maltreatment meted out to her at the hands of the accused for bringing
insufficient dowry. The matter was taken to the Panchayat, in whose
presence, it was decided that Kamlesh Kumari would go to the house of her
in-laws and she would not be maltreated by her husband for dowry and, in
case Parveen Singh made any demand for a scooter, the matter would be
taken up with his parents. It was further decided that a scooter would be
given after sale of ‘Sauni’ crop. On 2.11.1990, i.e. the date of occurrence, a
person came from village Kanpur and told the complainant that his sister
has died. The complainant along with others, went to village of his sister
and found her dead-body in the fields. He alleged in his complaint that his
sister was killed by strangulation and that blood was oozing out from her
Crl. Appeal No. 92-SB of 1997 -2-
nose. It was further reported that death of Kamlesh Kumari had taken place
due to non-providing of scooter to Parveen Singh and that she had been
killed by Parveen Singh, Mohinder Singh and Shubh Lata. On the
statement, Exhibit PE, of the complainant Shamsher Singh, the present case
came to be registered vide FIR, Ex. PE/B. The investigating Officer
prepared the inquest report and sent the dead-body for post-mortem
examination. He then took into possession blood-stained earth, which was
sealed into a parcel with seal bearing impression ‘TR’, which was taken into
possession, vide memo. Ex. PK. A rough site plan Ex. PL was then
prepared. The clothes, after post-mortem examination, were taken into
possession vide recovery memo. Ex. PM. The blood-stained earth was
sent to the Chemical Examiner who vide his report Ex.PL found blood on
the exhibit. Scaled plan, Ex.PF, of the place from where the dead body was
recovered, was prepared by the Halqa Patwari. After completion of
investigation, the accused were challaned. After the case was committed to
the court of Session for trial, the accused were charge-sheeted under Section
304-B 34 IPC, to which they pleaded not guilty and claimed trial.

Prosecution had examined as many as 10 witnesses in support
of their case. The accused in their statements under Section 313 Cr.P.C.
denied the allegations and pleaded false implication. In defence, they
examined Naik S.P.Kondal as DW-1, Sardar Singh as DW-2 and Harnam
Singh as DW-3 and .

Upon appreciation of evidence, the learned Additional Sessions
Judge, Gurdaspur , vide his judgment and order dated 20.1.1997 convicted
the accused-appellants in the manner indicated above. Hence, the present

Counsel for the parties have been heard.

Section 304-B of the Indian Penal Code lays down that where
the death of a woman is caused by any 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 in
connection with any demand of dowry, such death shall be called “dowry
death” and such husband or the relative shall be deemed to have caused her
death. Section 113-B has also been inserted in the Evidence Act. It deals
Crl. Appeal No. 92-SB of 1997 -3-
with the presumption of “dowry death” and proclaims that when the
question is whether a person has committed a dowry death of a woman and
it is shown that soon before her death, such woman had been subjected by
such person to demand of dowry, the Court shall presume that such person
had caused “dowry death”. It can, therefore, be seen that irrespective of the
fact whether the accused has any direct connection with the death or not, he
shall be presumed to have committed the “dowry death” provided the other
requirements mentioned above are satisfied. The present appellants are
Jeth and Jethani of the deceased Kamlesh who died in the matrimonial home
within six months of the marriage. The husband is a proclaimed offender.
The allegations are of demand of scooter. PW-4 Shamsher Singh, brother of
the deceased, PW-1 Gurmej Singh, a family friend and PW-5 Milkha Singh,
have stated that she used to complain that her husband used to press her for
dowry and the demand was of scooter. It is not in dispute that appellant,
Mohinder Singh is serving in Armed Forces and during the relevant time, he
along with his family was posted at Pathankot. He as such would hardly be
interested with the demand of scooter which was to be used exclusively by
the husband, i.e. Parveen Singh who as stated above, is a proclaimed
offender. In Jai Singh v. State of Haryana, 1999(1) RCR(Criminal) 259
(P&H), on a demand of scooter the husband was held to be the beneficiary
of the scooter and the other accused were acquitted. Jai Singh’s case
(supra) has been duly followed in Shanti Devi and another v. State of
Haryana, 2004(3) RCR(Criminal) 717. Their case if taken from other
angle, no doubt PW-1 Gurmej Singh, PW-4 Shamsher Singh and PW-5
Milkha Singh have stated that the present appellants-accused harassed the
deceased for demand of scooter but they all of them made improvements in
their statements as the said version was never mentioned in their statements
made before the police for which PW-1 Gurmej Singh was confronted with
police statement and so as PW-4 Shamsher Singh with his earlier statement
Exhibit PE and PW-5 Milkha Singh with his earlier statement Exhibit DA.
When they were confronted with their earlier statements, they could not
give any explanation for not having recorded the same at the first instance,
with the result that by way of improvements, their credibility is certainly
impeached. In Tarun alias Gautam Mukherjee v. State of West Bengal,
2003 Supreme Court Cases (Crl.) 1052, the allegation was that the
Crl. Appeal No. 92-SB of 1997 -4-
accused used to assault the deceased almost daily on instigation of his sister
but in cross-examination it had been elicited that the witness had not stated
so in her statement under Section 161 Cr.P.C. and it was held that such an
omission would discredit her version in Court.

There is another feature which negatives the case of the
prosecution. Harnam Singh is the father of the deceased Kamlesh.
Obviously, he is equally aggrieved. He has been examined as DW-3. He
has categorically stated in his statement that at the time of death of his
daughter, Mohinder Singh(appellant) who was serving in the Army, was
living in Pathankot along with his children. He stated that he had no
complaint against Mohinder Singh and Shubh Lata his wife. His daughter
used to complain that only accused Parveen Singh used to harass her and
make demand of dowry and not the present appellants-accused. The
evidence of defence witnesses cannot always be termed to be a tainted one.
The defence witnesses are entitled to equal treatment and equal respect as
that of the prosecution. The issue of credibility and the trustworthiness
ought also to be attributed to the defence witnesses on a par with that of the
prosecution. As stated above, Harnam Singh, DW-3, who was father of the
deceased, would be the last person to spare the accused-appellants had they
indulged in any demand or harassment to the deceased.

In view of the discussion made above, the prosecution has not
been able to prove the case against the present appellants-accused.
Accordingly, the appeal of the present appellants-accused is allowed. They
are acquitted of the charge framed against them. Their bail bonds stand

                                                   ( ARVIND KUMAR )
November 11, 2008                                          JUDGE

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