State of Punjab vs Kashmir Singh

J. B. Garg, J.

Kashmir Singh son of Bakar Singh, aged 20 years, Cultivator of village Kathgarh, District Ferozepur has been acquitted by Shri S. S. Grewal, Additional Sessions Judge Ferozepur on charge for offences punishable under Sections 302/306/498A and 304B of the Indian Penal Code. Aggrieved against it, the State of Punjab has preferred this appeal.

Briefly stated the story of the prosecution is that Mst. Prito Bai was married to Kashmir Singh about one year prior to the occurrence but the husband used to maltreat her. The aforesaid Prito Bai had been staying with her parents. Kashmir Singh had come to the house of his inlaws and expressed his regrets regarding the maltreatment and promised that he would not beat or treat his wife with cruelty in future and on this assurance Prito Bai accompanied Kashmir Singh in the presence of Sunder Singh, Sarpanch and Piara Singh, Panch of her village about 10 or 12 days before the occurrence. However, in the early hours of morning of 10.2.1987, Shankar Singh, father received information that his daughter was not traceable. Shankar Singh, along with his two sons Puran Singh and Lachhman Singh reached village Kathgarh and as a consequence of thorough search Prito Bai was noticed hanging on a Keekar tree amidst wheat crop in the area of village Kathgarh itself. Shankar Singh, the father lodged the report which was recorded at Police Station Jalalabad on 10.2.1987 at 10.15 a.m. The post mortem examination was conducted at Civil Hospital, Fazilka. The Medical Officer found the ligature mark between the chin and the thyroid. The Medical Officer sent viscera for chemical examination and after the receipt of the report it was found that the stomach contained aluminium phosphide. After the receipt of the report of the Chemical Examiner and Medical Officer, the report dated 10.2.1987 was given the formal shape of an F.I.R. on 13.9.1987. Shri Kashmir Singh, A.S.I. reached the village of the accused and conducted inquest proceedings and despatched the dead body for the purpose of postmortem examination.

P.W. 1 Dr. Inder Mohan Chalana, Medical Officer, Civil Hospital Fazilka conducted postmortem examination on the dead body of Prito Bai wife of Kashmir Singh on 10.2.1987. He found the ligature mark between the chin and the thyroid which was upwards along the line of lower jaw. The body was wearing one salwar, one jumper and one shawl tied on the neck towards its left side. After the receipt of the report of Chemical Examiner, the Medical Officer opined that the cause of death in this case was homicidal hanging associated with aluminium phosphide poisoning.

P.W. 2 Shankar Singh, father who has specifically deposed that Prito Bai had been complaining that her husband used to beat and maltreat her. He also wanted that his wife should bring more money from her parents. The complainantfather had also promised to meet some demands after the Kharif Crop. He has thereafter described the entire occurrence as referred to above. He has denied that his daughter had any mental disorder or that she committed suicide on account of it or that it was never abetted by Kashmir Singh.

P.W. 3 Lachhman Singh is the brother of the deceased and he has specifically deposed that his sister put forward her grievance that Kashmir Singh has been beating her and maltreating her and on receiving information then they went to the village of the accused where found Prito Bai hanging with a Kikar tree in a wheat field.

P.W. 4 Sunder Singh, Sarpanch of the village has deposed that about a month prior to the death, Prito Bai along with her father Shanker Singh had met him and specifically told him that Kashmir Singh had been beating her and maltreating her and that he was addicted to drinking. Subsequently, Kashmir Singh alongwith Sher Singh and one or two other residents of his village met him and Kashmir Singh apologised and on his assurance of good conduct Prito Bai was sent with Kashmir Singh. He has denied that Prito Bai was not mal treated or that she had any mental ailment.

P.W. 5 Krishan Lal, Patwari of village Kathgarh prepared site plan Exhibit PH on the pointing out of Shanker Singh.

P.W. 6 Kewal Krishan, Photographer took the photographs Exhibits P4 to P6 and the corresponding negatives are Exhibits P1 and P2. These pertain to the place of occurrence where Prito Bai was found hanging under a Kikar tree.

P.W. 7 Puran Singh is another brother of deceased and he has also supported the entire story. He has also deposed that his sister was never a mental case and she studied in school upto 5th Class.

P.W. 8 Kashmir Singh, A.S.I. posted at Jalalabad recorded the Daily Diary report on the statement of Shanker Singh on 10.2.1987 and thereafter proceeded to the place of occurrence. He got the dead body photographed. He also prepared an inquest report Exhibit PE and then despatched the dead body for post mortem examination. He deposited the wearings of Prito Bai with M.H.C. through constable Kehar Singh.

P.W. 9 Shri Mangat Singh, A.S.I. investigated the case after formal registration of the F.I.R. on 13.9.1987. He also prepared the rough site plan and recorded the statements of some of the witnesses including Lachhman Singh. He has denied that Prito Bai was mental. He has denied that the case was registered on account of agitation.

Kashmir Singh son of Bakar Singh, accused has been examined under Section 313 of the Code of Criminal Procedure in the trial Court and he has said that Prito Bai committed suicide of her own accord and she was mental and he never abetted and that he was innocent.

The accused wanted time for production of defence and he named two witnesses but ultimately of his own accord did not produce any evidence and voluntarily closed it.

We have heard the learned counsel for the parties besides perusing the record.

The trial Court had acquitted the accusedrespondent by appraising the evidence of the witnesses in paras 17 and 18 of the judgment which read as under :

"Shanker Singh PW 2 has stated that money was being demanded by the accused, but he had not taken any panchayat or neither has protested to any relation of the accused. This conduct negatives the dowry demand story and in fact Shanker Singh has admitted that Prito Bai had been sent again to the house of Kashmir Singh. Most important fact as alleged by the prosecution is taking of Prito Bai by Kashmir Singh from Kanianwali 10/12 days before her death. Shanker Singh states that Kashmir Singh came and in the presence of Sunder Singh, Sarpanch, Piar Singh Panch and Bohar Singh admitted that he will not make any dowry demand and will not maltreat Prito Bai. On this score Shanker Singh is contradicted by his son Lachhman Singh PW 8, whereas, he stated that he cannot say if Kashmir Singh came to village Kanianwali 10/12 days before the death of Prito Bai and further stated that it is incorrect to suggest that Kashmir Singh alongwith Sarpanch Sunder Singh and Piar Singh Panch came to their house where Bohar Singh was also present and he apologised for his misconduct. Lachhman Singh was declared hostile and was cross examined by the Addl.: P.P. Sarpanch Sunder while appearing as PW4 never stated that Shanker Singh and Prito Bai informed him that any dowry demand is being made or she is being maltreated. What is stated is that Kashmir Singh beats her and maltreats her. PW 7 though attested the inquest but never made any statement to the police that his sister has been maltreated or any dowry demand has been made at the time of death of Prito Bai. In such circumstances dowry demand does not stand proved and there is no evidence of harassment as envisaged by Section 498A of the India Penal Code. Had there been any dowry demand of maltreatment of Prito Bai, then Shanker Singh would have protested through some persons at village Kathgarh. Even PW 3 did not inform his father PW 2 about the statement made by Prito Bai to him a day prior to her death. Such oral allegations can be made at any time and the prosecution has failed to bring home the guilt to the accused beyond any reasonable doubt.

I have given considerable thought to the arguments of the learned counsel for the accused and the Addl : P.P. The authority cited by the learned Addl, P.P. is not applicable to the facts of this case as in that case the deceased could not tie the rope to the beams of the roof and in this case, hanging has taken place from a tree which the deceased would very well climb. The fatal dose of poison is about 70 Mgs. and it is clear from the report of the Chemical Examiner that no poison was found in the blood taken from the heart. As such, it is apparent that the poison has not taken the full effect when the deceased committed suicide as there is no evidence of other possibility of being hanged. The dowry demand is not supported by PW 4 Sarpanch Sunder Singh who never stated that the accused made any statement that he will not make dowry demand in future as alleged by PW 2 and PW3. PW 3 does not even support the coming of Kashmir Singh 10/12 days before the occurrence to take Prito Bai to his house after making the abovesaid admissions. This statement of PW 3 in fact shatters the whole prosecuting story. If Kashmir Singh has not gone to take Prito Bai from Kanianwali, then Prito Bai must be living with him at Kathgarh. PW 3 even does not mention the fact that Prito Bai told him about the maltreatment to her by Kashmir Singh a day prior to her death. If such statement had been made by Prito Bai then Lachhman Singh was bound to tell his father and the police about the same at the time of death of Prito Bai. Nonmentioning of this fact only suggests that there was no complaint at all from the side of Prito Bai. Puran Singh though attested the inquest report Ex. PE, but never made any statement to the police regarding any maltreatment or dowry demand at that time and stated for the first time in the Court. Such statement cannot be believed at all."

A bare perusal of the above referred finding of the trial Court leaves no doubt that it has not only wrongly appraised the evidence of the witnesses but also ignored the evidence of Sunder Singh Sarpanch PW4 as well as Shanker father of the deceased that the accused used to maltreat the deceased under the influence of liquor and she was rehabilitated only 10/12 days prior to this occurrence on the assurance of the husband that he will treat her nicely. No doubt in such like cases where a married woman dies unnatural death at the house of her inlaws, her parents and other relations are bound to play upon their imagination in exaggerating the fault of the accused on the basis of his past conduct yet all the same the maxim falsus inunofalsusinomnibus being not applicable in India for appraisal of the witnesses but on the other hand a heavy duty is cast upon the Courts to shift truth from falsehood, thus the approach of the trial Court in discarding the evidence of Shanker Singh (PW2) father of the deceased as well as her brother Lachhman Singh (PW3) and Puran (PW7) on the ground that their oral assertion qua the demand of dowry are not corroborated from the evidence of Sunder Singh Sarpanch (PW4) is erroneous because the trial Court had altogether ignored the evidence of the witness qua the harassment given to the deceased by her husband as a result whereof she was forced to leave the shelter of her matrimonial home and reside with her parents. It is the consistent version of all these witnesses that she was taken by Kashmir Singh accused from her parents'' village Kanianwali about 10/12 days before her death on the assurance that he will treat her nicely. Sunder Singh Sarpanch (PW4) is an independent person and not in any manner inimical towards the accused or friendly towards the parents of the deceased. Simply because he happens to be a covillager of the parents of the deceased it cannot be said that he had deposed falsely specially when he has not supported the case of the father and brother of the deceased that on that occasion they had promised to give some money after harvesting of Hari crop. Thus, the real dispute between the husband and the wife pertains to the heavy drinking habit of the former as told by Mst. Prito Bai to Sunder Singh (PW 4). It was natural on the part of Shanker Singh to seek the help of the village Sarpanch after taking the latter in confidence of the maltreatment of Mst. Prito Bai by her husband. Thus, it cannot be said that there was no occasion for Mst. Prito Bai to disclose the above referred facts before the Sarpanch. The conduct of the Sarpanch in conveying to Shanker Singh (PW4) that the dispute should be settled if some respectables approach him, is natural and probable and as a matter of fact Kashmir Singh accused did not approach them after associating two or three other persons. Simply because according to Sunder Singh PW the above referred rapprochement took place about one month before the death of Mst. Prito Bai whereas according to Shanker Singh PW this happened about 1012 days prior to her murder. It appears that the rustic villagers had no precise sense of number of days and time. Thus, this minor discrepancy is of no consequence. During crossexamination Sunder Singh (PW4) frankly conceded having not apprised anybody of this episode till his statement was recorded by the police. The above referred conduct of this witness cannot be said to be unnatural as the settlement of such like tender dispute between the husband and wife is not disclosed to the public at large. Thus, the approach of the trial Court in appraising the evidence of Sunder Singh (PW4) is not appreciable.

Simply because Puran Singh (PW7) had not stated the above referred maltreatment of his sister by her husband in his statement recorded during the inquest proceedings is of no consequence because this version had already figured in the FIR recorded on the statement of Shanker Singh father of the deceased. At the most, it appears to be a lapse on the part of the investigating officer in not questioning this witness qua the maltreatment of his sister.

The trial Court had also placed uncalled for reliance on the testimony of Lachhman Singh PW3 brother of the deceased on the assumption that since he was got declared hostile and crossexamined by the Public Prosecutor his evidence has been rendered tainted. On the other hand, the appraisal of his evidence coupled with his demeanour noticed by the trial Court during his testimony clearly spell out that for some reason or the other he is trying to help the accused. It would be worthwhile to reproduce his testimony in entirety. He has deposed as under :

"Prito Bai, my sister, was married to Kashmir Singh of Kathgarh about 21/2 years back. About 11/2 years before her death, Prito came and told us that Kashmir Singh is beating her and maltreating her. (The learned A.P.P. has asked the witness when her sister died. (The witness does not answer the question straightforwardly and is thinking) Prito had died about 11/4 or 11/2 years ago. Prito came to us for the last time 11/2 months before her death. She did not tell anything at that time. After that she never returned and I went to her. About 20 days before her death, there was Mela at Kathgarh and I went there. She told me that Kashmir Singh is beating her and maltreating her and is demanding money and dowry. I returned to my village after meeting my sister Prito Bai. My father had gone out and I could not tell him.

Some person from Kathgarh came and informed us that Prito Bai is missing. I and my father and my brother Puran Singh went to V. Kathgarh. We searched for Prito Bai in the village. We found Prito Bai hanging from a Kikar tree in the wheat field. We suspected that either Prito Bai has been killed or she committed suicide. I and my father went to lodge a report to the police. My statement was not recorded by the police (At this stage the learned A.P.P. stated that the witness is concealing the truth and has resiled from his statement. As such he may be allowed to crossexamine him. Request allowed).

By A.P.P.

My statement was recorded by A.S.I. Mangat Singh about 8/9 months after the occurrence at Village Kathgarh (The witness has taken time to answer the question) I have stated in that statement that about 8 months before, my sister was beaten by Kashmir Singh and he has told her that if she wants to live with him, she should bring money. It is correct that after that Prito Bai came to village Kahnian Wali and narrated us the incident. Prito Bai resided in the house of my father. I cannot say if Kashmir Singh came to V. Kahnian Wali 10/12 days before the death of Prito Bai. I did not state in my statement that Kashmir Singh came to our village 71/2 months earlier (Attention of witness is drawn to portion A of Ex P.G. where it is so recorded). It is incorrect to suggest that Kashmir Singh along with Sarpanch Sunder Singh, Piara Singh Panch came to our house where Bohar Singh was also present. He apologised and Sarpanch and members Panchayat told us that daughters are not to be kept in the house and on the asking of Sarpanch and Panches we sent Prito Bai with Kashmir Singh (Attention of witness is drawn to portion B to B of Ex. PG where it is so recorded). I have stated so to the police. One day prior to death of Prito Bai, I had gone to meet her. She told me that Kashmir Singh is harassing her even more. I told her that I will talk at home. It is wrong to suggest that I have deposed falsely to help the accused on the fact that he did not visit our village 10/12 days before the death of Prito Bai.

By counsel for the accused.

We reached the village Kathgarh along with the police at 10 a.m. Jalalabad is at a distance of 9/10 miles from V. Kathgarh. We reached Jalalabad at about 9 a.m. I did not inform the police that I visited Kathgarh a day earlier. I did not tell my father what my sister told me a day earlier when we learnt about her disappearance. I had told to my father about this 8/10 days after the death of Prito Bai. It is wrong to suggest that my sister was mental and ill. It is wrong to suggest that I am deposing falsely."

A bare glance through the testimony of Lachhman Singh PW3 leaves no doubt that he has tried to evade the answer to material questions. He does not have even a correct sense of time as in the examinationinchief he stated that about 11/2 years before her death Mst. Prito Bai came and told that Kashmir Singh is beating her and maltreating. In the next breath he stated that Mst. Prito Bai died about 11/4/11/2 years back. In the examinationin chief he stated that Mst. Prito Bai came to his house about 11/2 months before her death and that she did not tell anything at that time. Thereafter she never returned to his house. But in crossexamination by the Additional Public Prosecutor he admitted having stated in his statement Ex. PG that Sunder Singh Sarpanch, Piara Singh Panch along with Kashmir Singh accused came to his house and got the matter compromised, after Kashmir Singh had tendered his apology. Consequently, the close appraisal of evidence of Lachhman Singh clearly spells out that Kashmir Singh accused did turnout Mst. Prito Bai from his house and that thereafter, she started residing with her parents but later on she had accompanied the accused after the latter tendered unconditional apology before Sunder Singh Sarpanch and others. Thus, it cannot be said that Lachhman Singh has contradicted the version of Sunder Singh PW4 in this regard. On the other hand, his testimony supports the above referred incident of compromise between the deceased and the accused. If that is so then there is no escape but to conclude that the accused used to maltreat his wife under the influence of liquor and it is a clear case of subjecting a wife to cruelty by her husband as defined in Explanation (a) to Section 498A of the Indian Penal Code which reads as under :

"Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical of the woman;"

"The Accused having treated his wife with cruelty to the extent of abandoning her matrimonial home but there is no escape but to hold that presumption as to abetment of suicide by a married woman contained in Section 113A of the Indian Evidence Act would be attracted in this case. These provisions provide as under :

"A presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation For the purposes of this Section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860)".

The question then arises whether Kashmir Singh accusedrespondent had been able to rebut the rebuttable presumption in this regard. It is noteworthy that he has simply alleged in his statement recorded under Section 313 Cr.P.C. by the trial Court, that the deceased has committed suicide being a mental case. Strangely enough no evidence was led in this regard although there would have been no dearth of a medical evidence specially when there are adequate medical facilities available in this part of the country for treatment of mental ailments. Shanker Singh PW2, Lachhman Singh PW3 and Sunder Singh PW4 as well as Puran Singh PW5 had strongly refuted the suggestions of the defence during crossexamination that she was mentally ill. No other evidence has been led by the accused to prove this fact. Thus, there is no escape but to hold that the accused had failed to rebut the presumption available under Section 113A of the Evidence Act. If that is so then he is liable for the offence punishable under Section 306 of the Indian Penal Code for having abetted the offence of commitment of suicide by his wife. He is, therefore, held guilty for the offence under Section 498A as well as Section 306 of the Indian Penal Code by accepting this appeal and setting aside the order of acquittal of the trial Court.

The learned counsel for the appellant has referred to Gurmukh Singh v. State of Haryana, 1991(2) C.L.R. 143 where evidence of the parents of the deceasedwife was not considered sufficient for recording conviction under Sections 304B and 498A of the Indian Penal Code. In the aforesaid case of Kurukshetra Town, Niranjan Singh, Goldsmith, an independent witness had not supported the version of the prosecution, whereas in the case in hand P.W. 4 Sunder Singh, Sarpanch of the village, has supported the story of the prosecution and specifically deposed that Kashmir Singh expressed regrets and promised to behave nicely in future and it was on this assurance that Prito Bai was sent by his father but it did not bring the desired result and instead the husband continued torturing her which compelled the wife to put an end to her life.

We have heard the learned counsel for the accusedrespondent on the point of sentence. There is considerable force in his contention that the offence under Section 306 of the Indian Penal Code being graver than the one under Section 498A of the Indian Penal Code no sentence should be imposed for the latter. Under the circumstances of the case we consider that a sentence of five years rigorous imprisonment would meet the ends of justice and award the same for offence under Section 306 of the Indian Penal Code. The accused is directed to surrender to custody before Chief Judicial Magistrate, Ferozepur for undergoing the remaining portion of sentence. The detention already suffered by him during investigation and trial of the case shall be considered as set off towards the sentence of imprisonment as prescribed under Section 428 of the Code of Criminal Procedure.