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Thursday, November 14, 2013

Sec. 304 B of I.P.C. and sec.113 B of Evidence Act = Suicide was committed soon after 5 days of demand of dowry, with in 7 years of marriage, burden lies on the accused to disprove the case - he can not depend on minor latches of prosecution with out proper foundations - High court rightly convicted the husband and confirmed the acquittal of lower court in respect of other accused = SUKHWINDER SINGH …APPELLANT Versus STATE OF PUNJAB …RESPONDENT = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40964

Sec. 304 B of I.P.C. and sec.113 B of Evidence Act = Suicide was committed soon after 5 days of demand of dowry, with in 7 years of marriage, burden lies on the accused to disprove the case - he can not depend on minor latches of prosecution with out proper foundations - High court rightly convicted the husband and confirmed the acquittal of lower court in respect of other accused =

Minor discrepancies like she said at room , at varanda does not change substance of the case=
 It is true that there can be no compromise  on  basic
legal principles, but, unnecessary weightage should not be  given  to  minor
errors or lapses.  If courts get carried away by every mistake or  lapse  of
the  investigating  agency,  the  guilty  will  have  a  field   day.    The
submissions relating to alleged overwriting  and  discrepancies  in  timings
and dates, therefore, are rejected
Thereafter, he has  described  his  visit  to
the appellant’s house along with PW-3 Surjit Singh on  25/06/1991  when  the
deceased, who was in tears, told him about the dowry demand of the  accused.
 The appellant was present there.  PW-3 Surjit Singh,  who  had  accompanied
PW-2 Labh Singh, corroborates PW-2 Labh Singh  on  this  aspect.   
They  are rustic  witnesses.   
Their  evidence  must  be  read  bearing  their  simple
background in mind.  PW-2 Labh Singh had lost his daughter.   Besides,  they
were deposing in 1994,  almost  three  years  after  the  incident.  
 Hence,
allowance must be made for minor discrepancies, if any, in  their  evidence.
In any case, by and large, their evidence is consistent.   
Only  discrepancy
which is pointed out by the appellant’s counsel  is  that  while  PW-2  Labh
Singh stated that the deceased told them about the demand in the room,  PW-3
Surjit Singh stated that she talked to them in the  verandah.  
 Evidence  of
witnesses cannot be rejected on such minor inconsistencies.

  after the marriage there is a hostile attitude is enough to cover single incident as burden lies on Accused =
  One wonders  whether  she  would  have
been allowed to share some  moments  with  the  father  alone.  Pertinently,
shortly thereafter, she took poison.  It is not correct  to  say  that  from
the date of marriage till the date of incident there was  no  harassment  to
the deceased.  PW-2 Labh Singh stated that after the marriage  the  attitude
of the accused towards the deceased was hostile.  
Besides,  the  demand  was
made  on  25/06/1991  and  the  deceased  died  on  01/07/1991.   Thus,  the
harassment for dowry was soon before the death of Karnail Kaur, as  required
by Section 304B of the IPC and Section 113B of the Evidence Act, 1872.
 In the absence of suggestions, no court hold that the records are tampered with out any basis =
  It  is  contended  that
since PW-1 Dr. Gurmit Singh stated that case property was handed over to PW-
7 Angrej Singh on 01/07/1991, then, it remained in the personal  custody  of
PW-7 Angrej Singh for a day.  Therefore, the case property might  have  been
tampered with.  No suggestion was put to PW-1 Dr. Gurmit  Singh  that  post-
mortem was not conducted on 01/07/1991.  PW-1 Dr. Gurmit  Singh  has  stated
that all the parcels were sealed and handed over to PW-7 Angrej Singh.   PW-
7 Angrej Singh has confirmed that all the parcels  were  sealed,  they  were
deposited  in  Malkhana  and  then  taken  to  the  laboratory.   There  is,
therefore, no question of any tampering with the case property.  We  do  not
see any foul play in this.  There  appears  to  be  mistake  in  giving  the
dates.  It is too much to presume that the doctor and the Chemical  Analyser
would conspire and fabricate a false report.  Similarly, the overwriting  in
the inquest report is inconsequential.   It  could  be  a  mere  inadvertent
lapse.  It could also be purposeful lapse.  But, if such mistakes or  lapses
are given undue importance  every  criminal  case  will  end  in  acquittal.

    NO DELAY IN SENDING F.I.R.  
 The  FIR  was
lodged promptly on 01/07/1991 at 2.10 p.m. after  PW-2  Labh  Singh  got  to
know about his daughter’s death.  It reached the Magistrate at 7.00 p.m.  on
02/07/1991.  We do not think that in the facts of this case  this  time  lag
could be termed as delay.  
In  any  case,  requirement  of  sending  special
report to the Magistrate is an external  check  on  the  working  of  police
agency but not in all cases  that  delay  will  make  the  prosecution  case
doubtful.  We do not find any indication in this case from any  evidence  on
record that the prosecution case is untrue or fabricated.   We  reject  this
submission.

 The mother and brother of the appellant have been acquitted by  giving
them  benefit  of  doubt.   So  far  as  the  appellant  is  concerned,  the
prosecution has established it’s case beyond reasonable  doubt.   The  trial
court fell into a grave error in acquitting him.  The  trial  court’s  order
is indeed perverse.  The High Court rightly interfered with  it.   The  view
taken by the High Court, which is confirmed by us, is the only possible  and
correct view  in  the  facts  of  this  case.   The  appeal  is,  therefore,
dismissed.  The appellant is on bail.  His bail bonds stand  cancelled.   He
shall surrender before the concerned court.

                                                REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO. 1023 OF 2008



SUKHWINDER SINGH                        …APPELLANT

                                   Versus

STATE OF PUNJAB                             …RESPONDENT



                               J U D G M E N T


(SMT.) RANJANA PRAKASH DESAI, J.


1.    In this appeal judgment and order dated 16/17-05-2007  passed  by  the
Punjab and Haryana High Court is under challenge.

2.    The appellant is original accused no. 4.   He  was  tried  along  with
Gurdev Singh, Surjit Kaur and Jaswinder Singh, original accused  nos.  1,  2
and 3 respectively, by the Additional Sessions Judge, Ludhiana  in  Sessions
Trial No. 16 of 1994 for offence punishable under Section 304B of  the  IPC.

Learned Sessions Judge  by  judgment  dated  31/08/1995  acquitted  all  the
accused.
The State of Punjab carried an appeal from the said order  to  the
High Court of Punjab and Haryana.
By the impugned judgment and order  dated
16/17-05-2007 the High Court set aside the order of acquittal so far as  the
appellant is concerned.  He was convicted under Section 304B of the IPC  and
sentenced  to  undergo  RI  for  seven  years.   He  was  directed  to   pay
compensation of Rs.20,000/- to the father of the deceased.   In  default  he
was directed to suffer RI for one year.
 The High Court noted  that  accused
no. 1 Gurdev Singh was dead.  So far  as  accused  no.  2  Surjit  Kaur  and
accused no. 3 Jaswinder Singh  are  concerned,  the  High  Court  gave  them
benefit of doubt and confirmed their  acquittal.   Being  aggrieved  by  his
conviction and sentence the appellant has approached this Court.

Case of the Prosecution

3.    The appellant was married to deceased Karnail Kaur (“the deceased”  or
“Karnail Kaur”)  in May, 1989.  Accused no. 1 Gurdev Singh was  his  father.
Accused no. 2 Surjit Kaur is his mother and accused no.  3  Jaswinder  Singh
is his brother.  The prosecution story  is  unfolded  by  PW-2  Labh  Singh,
father of the deceased.  He stated that on 25/06/1991 he went  to  meet  the
deceased to the house of the appellant along with PW-3  Surjit  Singh.
  The
appellant who was employed  in  the  Army  had  come  home  on  leave.   The
deceased was in tears.  She told PW-2 Labh Singh that the appellant and  the
other accused were demanding a scooter and a refrigerator and that her  life
was in danger.
PW-2 Labh Singh told her  that  he  would  meet  the  demand
after the Sauni Crop.  
On  01/07/1991  he  was  told  by  Pritam  Singh,  a
resident  of  Dehlon,  that  Karnail  Kaur  had  died  on  30/06/1991.    On
01/07/1991 when he was proceeding to the police station  to  lodge  FIR,  he
met PW-4 ASI Mohinder Singh, who recorded his statement.  
PW-4 ASI  Mohinder
Singh forwarded it to the police station and a formal FIR was registered  at
P.S. Samrala under Section  304B  of  the  IPC  against  the  accused.   The
accused were arrested.  After completion of investigation they were sent  up
for trial.

The trial

4.    The prosecution examined PW-1 Dr. Gurmit Singh, who had conducted  the
post-mortem, PW-2 Labh Singh, PW-3 Surjit Singh and  police  witnesses  PW-4
ASI Mohinder Singh, PW-5 HC Kalmit Singh, PW-6 SI Manminder Singh  and  PW-7
Constable Angrej Singh.  The appellant and  the  other  accused  denied  the
prosecution case.

The view taken by the trial court

5.    The trial court acquitted all the accused on the ground that 
 evidence
of PW-1 Dr. Gurmit Singh, PW-4 ASI Mohinder Singh and affidavit filed by PW-
7 Constable Angrej Singh indicate  that  the  case  property,  that  is  the
contents of stomach of the deceased and other material, handed over by  PW-1
Dr. Gurmit Singh to him remained in his personal custody for  one  day  and,
therefore,  the  possibility  of  its  tampering  cannot   be   ruled   out.
Therefore, the Chemical Analyser’s report stating that poison  was  detected
therein cannot be relied on.  
The trial  court  also  held  that  there  was
delay in sending special report to the Magistrate from  which  it  could  be
inferred that the FIR was ante timed.  
The trial  court  further  held  that
while PW-2 Labh Singh stated that the deceased  told  him  about  the  dowry
demand in the room, 
PW-3 Surjit Singh stated that  the  deceased  talked  to
them in  the  verandah.   
Thus,  there  is  variance  in  their  statements.

Moreover, the deceased could not have told them about the  dowry  demand  in
the presence of the accused.  
The trial  court,  thus,  concluded  that  the
prosecution had not proved it’s case beyond reasonable doubt  and  acquitted
the accused.

The High Court’s view

6.    The High Court held that the inference drawn by the trial  court  that the case property might have been tampered with is without any  basis.   
The
High Court held that the evidence of PW-2 Labh Singh and PW-3  Surjit  Singh
established that the deceased was subjected  to  harassment  for  dowry  and
that the time taken to forward the special report to the Magistrate did  not
make the prosecution case suspect.  Taking note of  the  fact  that  Karnail
Kaur had died within seven years of marriage, the High Court  convicted  the
appellant as aforesaid.  The High Court confirmed the  acquittal  of  mother
and brother of the appellant by giving them benefit of doubt.

Submissions of the counsel

7.    We have heard learned counsel for the parties  at  some  length.   Mr.
Vishal Yadav, learned counsel for the appellant reiterated  all  the  points
which the trial court had taken  into  consideration  while  acquitting  the
accused which we have quoted hereinabove and  stated  that  the  High  Court
erred in disturbing the trial court’s well reasoned judgment.  He  submitted
that the trial court’s view was a reasonably possible view  which  the  High
Court should not have disturbed even if it felt that  another  view  of  the
matter was possible.
Counsel submitted that the  deceased  was  married  to
the appellant in May, 1989.  PW-2 Labh Singh stated that on  25/06/1991  the
deceased told him about the harassment and demand for dowry.   There  is  no
evidence to show that from May, 1989 to 25/06/1991 there was harassment  for
dowry.
Counsel submitted that in  the  FIR  PW-2  Labh  Singh  stated  that
Pritam Singh told him that Karnail Kaur had  died.   But,  he  improved  his
story in the court and stated that Pritam Singh told him on 01/07/1991  that
Karnail Kaur had been killed a day earlier.  Thus,  he  is  not  a  reliable
witness.
Counsel pointed out that  there  is  overwriting  in  the  inquest
report Exhibit-PC with the intention to match it  with  time  given  in  the
FIR.
Counsel submitted that post-mortem  notes  do  not  show  presence  of
cyanosis.  
Therefore,  the  prosecution  case  that  Karnail  Kaur  died  of
poisoning is doubtful.
In the circumstances, impugned judgment deserves  to
be set aside.
Ms. Anvita Cowshish, learned counsel for the State  of  Punjab
submitted that the evidence of PW-2 Labh Singh and  PW-3  Surjit  Singh  and
the Chemical Analyser’s report bear out the  prosecution  story   and  hence
the appeal be dismissed.

Our view and conclusion

8.     Admittedly,  Karnail  Kaur  died  within  seven  years  of  marriage,
therefore, presumptions under Section 304B of the IPC and  Section  113B  of
the Indian Evidence Act, 1872 are attracted to this case.
 It  is  for  the
appellant to rebut it, which, in our opinion the  appellant  has  failed  to
do.
9.    We have already noted the gist of PW-2 Labh Singh’s evidence.  He  has
given the details of articles given to  the  appellant  and  his  family  as
dowry and stated that  after  marriage  the  attitude  of  the  accused  was
hostile towards the deceased.
Thereafter, he has  described  his  visit  to
the appellant’s house along with PW-3 Surjit Singh on  25/06/1991  when  the
deceased, who was in tears, told him about the dowry demand of the  accused.
 The appellant was present there.  PW-3 Surjit Singh,  who  had  accompanied
PW-2 Labh Singh, corroborates PW-2 Labh Singh  on  this  aspect.   
They  are rustic  witnesses.   
Their  evidence  must  be  read  bearing  their  simple
background in mind.  PW-2 Labh Singh had lost his daughter.   Besides,  they
were deposing in 1994,  almost  three  years  after  the  incident.  
 Hence,
allowance must be made for minor discrepancies, if any, in  their  evidence.
In any case, by and large, their evidence is consistent.   
Only  discrepancy
which is pointed out by the appellant’s counsel  is  that  while  PW-2  Labh
Singh stated that the deceased told them about the demand in the room,  PW-3
Surjit Singh stated that she talked to them in the  verandah.  
 Evidence  of
witnesses cannot be rejected on such minor inconsistencies.  We also do  not
find any substance in the  contention  that  the  deceased  could  not  have
talked about the dowry demand in the presence of the accused.  The  deceased
appears to have reached a point of desperation.  She stated  that  her  life
was in danger.  It appears that she had no option  but  to  tell  PW-2  Labh
Singh about her miserable existence.
 One wonders  whether  she  would  have
been allowed to share some  moments  with  the  father  alone.  Pertinently,
shortly thereafter, she took poison.  It is not correct  to  say  that  from
the date of marriage till the date of incident there was  no  harassment  to
the deceased.  PW-2 Labh Singh stated that after the marriage  the  attitude
of the accused towards the deceased was hostile.  
Besides,  the  demand  was
made  on  25/06/1991  and  the  deceased  died  on  01/07/1991.   Thus,  the
harassment for dowry was soon before the death of Karnail Kaur, as  required
by Section 304B of the IPC and Section 113B of the Evidence Act, 1872.
10.   PW-1 Dr. Gurmit Singh  did  the  post-mortem  of  the  deceased.   The
stomach contents were sent to the Chemical Analyser.   The  finding  of  the
Chemical Analyser reads thus:

      “Aluminium phosphate a pesticide  was  detected  in  the  contents  of
      exhibit NO. 1.  Phosphine a constituent  of  aluminium  phosphide  was
      detected in the contents of exhibits No. II and  No.  III  poison  was
      detected in the contents of exhibit NO. IV”

      Thus, the deceased died  of  poisoning.  She  had  consumed  Aluminium
Phosphate, a pesticide.


11.   PW-1 Dr. Gurmit Singh is an independent witness.  He stated that post-
mortem was conducted on 01/07/1991.  There is no reason to  disbelieve  him.
He stated that he handed over the case property  to  PW-7  Angrej  Singh  on
01/07/1991.  PW-7 Angrej Singh in his affidavit appears to have stated  that
post-mortem was  conducted  on  02/07/1991  and  he  handed  over  the  case
property to PW-4 ASI Mohinder Singh on 02/07/1991.   It  is  contended  that
since PW-1 Dr. Gurmit Singh stated that case property was handed over to PW-
7 Angrej Singh on 01/07/1991, then, it remained in the personal  custody  of
PW-7 Angrej Singh for a day.  Therefore, the case property might  have  been
tampered with.  No suggestion was put to PW-1 Dr. Gurmit  Singh  that  post-
mortem was not conducted on 01/07/1991.  PW-1 Dr. Gurmit  Singh  has  stated
that all the parcels were sealed and handed over to PW-7 Angrej Singh.   PW-
7 Angrej Singh has confirmed that all the parcels  were  sealed,  they  were
deposited  in  Malkhana  and  then  taken  to  the  laboratory.   There  is,
therefore, no question of any tampering with the case property.  We  do  not
see any foul play in this.  There  appears  to  be  mistake  in  giving  the
dates.  It is too much to presume that the doctor and the Chemical  Analyser
would conspire and fabricate a false report.  Similarly, the overwriting  in
the inquest report is inconsequential.   It  could  be  a  mere  inadvertent
lapse.  It could also be purposeful lapse.  But, if such mistakes or  lapses
are given undue importance  every  criminal  case  will  end  in  acquittal.
While it is true that  the  police  should  not  involve  innocent  persons,
fabricate evidence and obtain convictions, it is equally true that cases  in
which substratum of the prosecution case  is  strong  and  substantiated  by
reliable evidence, lapses in investigation should not persuade the court  to
reject the prosecution case.  The court with its vast experience  should  be
quick to notice mischief if there is any.  Incompetent prosecuting  agencies
or prosecuting  agencies  which  are  driven  by  extraneous  considerations
should not be allowed to  take  the  court  for  a  ride.   Particularly  in
offences relating to women and children, which are on rise, the courts  will
have to adopt a pragmatic approach.  No scope must be given  to  absurd  and
fanciful submissions.  It is true that there can be no compromise  on  basic
legal principles, but, unnecessary weightage should not be  given  to  minor
errors or lapses.  If courts get carried away by every mistake or  lapse  of
the  investigating  agency,  the  guilty  will  have  a  field   day.    The
submissions relating to alleged overwriting  and  discrepancies  in  timings
and dates, therefore, are rejected.


12.   We also do not find that time taken to  send  special  report  to  the
Magistrate has any adverse impact on the  prosecution  case.   
The  FIR  was
lodged promptly on 01/07/1991 at 2.10 p.m. after  PW-2  Labh  Singh  got  to
know about his daughter’s death.  It reached the Magistrate at 7.00 p.m.  on
02/07/1991.  We do not think that in the facts of this case  this  time  lag
could be termed as delay.
In  any  case,  requirement  of  sending  special
report to the Magistrate is an external  check  on  the  working  of  police
agency but not in all cases  that  delay  will  make  the  prosecution  case
doubtful.  We do not find any indication in this case from any  evidence  on
record that the prosecution case is untrue or fabricated.   We  reject  this
submission.


13.   The mother and brother of the appellant have been acquitted by  giving
them  benefit  of  doubt.   So  far  as  the  appellant  is  concerned,  the
prosecution has established it’s case beyond reasonable  doubt.   The  trial
court fell into a grave error in acquitting him.  The  trial  court’s  order
is indeed perverse.  The High Court rightly interfered with  it.   The  view
taken by the High Court, which is confirmed by us, is the only possible  and
correct view  in  the  facts  of  this  case.   The  appeal  is,  therefore,
dismissed.  The appellant is on bail.  His bail bonds stand  cancelled.   He
shall surrender before the concerned court.



                               .…………………………..J.
                           (Ranjana Prakash Desai)






                               .…………………………..J.
                              (Madan B. Lokur)

New Delhi;
November 12, 2013.
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