Judgment:
Criminal Appeal No.S-277-SB of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Criminal Appeal No.S-277-SB of 2003 Date of Decision: 19th June, 2014 Mehnga Singh ...Appellant Versus State of Punjab ....Respondent CORAM: HON'BLE MR.JUSTICE NARESH KUMAR SANGHI Present: Mr.Shashi Kant Gupta & Mr.R.K.Bagga, Advocates for Mr.L.M.Gulati, Advocate, for the appellant.
Mr.Sandeep Chhabra, DAG, Punjab.
*** Naresh Kumar Sanghi, J.
Challenge in this appeal is to the judgment of conviction and the order of sentence dated 14.01.2003 passed by the learned Additional Session Judge, Amritsar, whereby appellant Mehnga Singh was held guilty for the offence punishable under Section 304-B, IPC, and was ordered to undergo rigorous imprisonment for ten years besides the payment of fine of ` 2,000/- and in default thereof to undergo further rigorous imprisonment for two months.
Darshan Singh and Mohinder Kaur, parents of appellant Mehnga Singh, were Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -2- acquitted by the learned trial court.
Palwinder Kaur @ Pappi (since deceased) was the wife of Mehnga Singh (appellant).Their marriage was solemnized about 06 years and 03 months prior to the unnatural death of Palwinder Kaur @ Pappi.
Darshan Singh and Mohinder Kaur are the parents of Mehnga Singh (appellant).in other words, they were the parents-in-law of Palwinder Kaur @ Pappi (since deceased).Kulbir Singh- complainant (PW2) and Bawa Singh (PW4) are the brothers of Palwinder Kaur @ Pappi (since deceased).Jagtar Singh (PW1) and Gurdial Singh (PW7) are the co-villagers of Kulbir Singh and Bawa Singh.
The FIR in the present case was registered on the statement of Kulbir Singh (PW2) wherein he alleged that the marriage of his sister Palwinder Kaur @ Pappi was solemnized with Mehnga Singh (appellant) about 06 years and 03 months back.
The complainant side had given sufficient dowry articles to Smt.Palwinder Kaur @ Pappi.
Parabjot Kaur aged about 04 years and Navjot Singh aged about 2½ years were born out of the said wedlock.
About 2 ½ years prior to the occurrence, Mehnga Singh (appellant) raised a demand of scooter from his sister Palwinder Kaur @ Pappi and there arose a dispute.
Thereafter, Palwinder Kaur @ Pappi was turned out of the Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -3- matrimonial house by Mehnga Singh (appellant) and his parents and she had no option but to come to her parental house.
She told everything to the complainant and the other members of the family with regard to demand of scooter by the appellant and harassment on that account.
After a gap of 10- 12 days, Mehnga Singh (appellant) and his parents came to the house of the complainant and a Panchayat was convened in which in addition to otheRs.Jagtar Singh (PW1).Gurdial Singh (PW7) also participated.
As per agreement, an amount of Rs.6,000/- was paid to Palwinder Kaur @ Pappi and she was sent with the appellant and his parents.
Thereafter as and when Palwinder Kaur @ Pappi visited the house of the complainant, cash amount was paid to her as per the capacity of the complainant side but even then the appellant did not desist from making the demand of scooter.
About five months prior to the occurrence, Bawa Singh (PW4) had gone to meet his sister Palwinder Kaur @ Pappi and paid ` 5,000/- but in spite of that the appellant continued to maltreat Palwinder Kaur @ Pappi.
On 21.05.2000 at about 8.30 a.m, the complainant received a telephonic message from Amritsar that Palwinder Kaur @ Pappi had died.
Thereafter, the complainant along with his family members and co-villagers reached the matrimonial house of his sister and found that her in-laws had made all the Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -4- preparations for cremation of the dead body of Palwinder Kaur @ Pappi.
The complainant and the persons accompanying him noticed foul signs of injuries on the neck of Palwinder Kaur @ Pappi and suspected that she was murdered by way of strangulation.
After registration of the FIR (Ex.PA/2).Police Inspector Gian Singh (PW9) carried out the investigation.
He prepared the inquest report, autopsy was got conducted from Dr.Jagdish Singh Gill (PW5) medical officer of the Civil Hospital Baba Bakala; the clothes of Palwinder Kaur @ Pappi were handed over to the police by the doctor, which were taken into possession vide recovery memo (Ex.PW8/A).rough site plan (Ex.PW9/A) of the place of occurrence was prepared.
The appellant and his co-accused were arrested.
Mehnga Singh (appellant) suffered a disclosure statement that he could get recovered the rope which was used by him for committing the murder of Palwinder Kaur @ Pappi.
At the instance of the appellant, the said rope was taken into police possession vide memo (Ex.PW9/F).Rough site plan (Ex.PW9/G) of the place of the recovery of the rope was prepared.
On completion of the investigation, the charge-sheet (report under Section 173, Cr.P.C.) was presented before the learned Area Judicial Magistrate.
The copies of the charge-sheet along with the Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -5- accompanying documents were supplied to the appellant and his co-accused free of costs as per the mandate of Section 207, Cr.P.C.Since the offence under Section 304-B, IPC, was exclusively triable by the Court of Session, therefore, the learned Area Judicial Magistrate committed the case to that court for trial, in accordance with law.
Finding a prima facie case for the offence punishable under Section 304-B, IPC, charge for the said offence was framed against the appellant and his co-accused to which all the three accused pleaded not guilty and claimed trial.
In order to substantiate its allegations, the prosecution examined the following witnesses:- PW-1 Jagtar Singh: He is the resident of village Rahon.
He fully supported the prosecution version and deposed that the marriage of Palwinder Kaur @ Pappi was solemnized with Mehnga Singh (appellant) about 06 years and 03 months prior to the death of Palwinder Kaur @ Pappi.
He also deposed about the demand of scooter by the appellant and consequent mal-treatment of Palwinder Kaur @ Pappi at the hands of the appellant.
PW-2 Kulbir Singh: He is the brother of Palwinder Kaur @ Pappi (since deceased).He too fully supported the prosecution version and, inter-alia, deposed that the marriage Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -6- of his sister Palwinder Kaur @ Pappi was solemnized with Mehnga Singh (appellant) about 06 years and 03 months prior to the occurrence.
Jewellry and clothes were given to the accused at the time of marriage of Palwinder Kaur @ Pappi.
About 2 ½ years prior to the death of Palwinder Kaur @ Pappi, the appellant and his parents started maltreating Palwinder Kaur @ Pappi and demanded scooter from her.
She (Palwinder Kaur @ Pappi) was turned out of her matrimonial home and she came to the village Rahon and narrated the whole incident to the witness and other family membeRs.He also deposed about the visit of the appellant and his parents to their village and thereafter a Panchayat was also convened where a compromise was effected.
He also deposed about the payment of ` 6,000/- to the appellant.
He also deposed about the further payment of ` 5,000/- to Palwinder Kaur @ Pappi by her brother Bawa Singh (PW4).He also deposed about the continuous demand of scooter, mal-treatment and harassment of his sister even after payment of cash amount.
He also deposed about the receipt of the telephonic message with regard to the death of his sister and thereafter going to her matrimonial house and after seeing the dead body noticed the marks of strangulation on her neck.
He further deposed about the report of the matter to the police.
PW-4 Bawa Singh: He is yet another brother of Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -7- Palwinder Kaur @ Pappi (since deceased).He too fully supported the prosecution version and deposed about the marriage of his sister with the appellant about 06 years and 03 months prior the death of Palwinder Kaur @ Pappi.
He also deposed regarding the demand of dowry raised by the Mehnga Singh (appellant) and the payment of cash amount.
He further deposed that an amount of ` 5,000/- was paid by him to his sister before her death.
PW-7 Gurdial Singh: He is the resident of village Rahon and he also deposed in favour of the prosecution and narrated about the illegal demands raised by the appellant and payment of cash amount by the complainant side.
PW-3 ASI Surjit Singh: While posted at Police Station, Jandiala, he had received the police memo (Ex.PA) from Gian Singh, the then Station House Officer along with endorsement (Ex.PA/1) and on the basis thereof, formal FIR (Ex.PA/2) was recorded.
PW-5 Dr.Jagdish Singh Gill: He is the Medical Officer of Civil Hospital, Baba Bakala.
He inter-alia deposed that on 22.05.2000 he being a member of Medical Board had conducted autopsy on the dead body of Palwinder Kaur @ Pappi wife of Mehnga Singh (appellant).aged about 32-33 yeaRs.and found as follows:- Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -8- “1.
Reddish blue abraded bruise 2.5 x 2 cm present on left malar region of face, 4 cm above angle of mouth.
2.
Reddish brown abrasion 1 x 0.5 cm present on left side chin, 4 cm below left angle of mouth.
3.
10 x 5 cm reddish brown coloured abrasion with reddish blue bruise on front of neck at the level of thyroid cartilage, horizontally placed.
Intervening area of skin found having pealing off skin and on left side of neck.
Reddish blue dis-colouration present on back of neck.
On dissection of neck, infiltration of blood present in sternocleidomastold mastoid muscles on both side of neck, thyroid and carotid vessels found lacerated on right side of neck below injury no.3.
Trachea and larynx found congested.
Lower lips mucosa found having laceration on its internal surface.
Brain, pleurae, larynx trachea, lungs, liver, spleen and kidney found congested.
Uterus was enlarged and found having 30 cm long dead female foetus in it.”
.
All the injuries were ante-mortem in nature.
The cause of death was asphyxia as a result of strangulation and the same was sufficient to cause death in ordinary couRs.of Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -9- nature.
The probable time between the injury and death was immediate while between death and postmortem examination was about 24-36 houRs.PW-6 Rishi Ram: He deposed that on 10.08.2000, he had prepared the scaled site plan, Ex.PW6/A, of the place of occurrence at the instance of Kulbir Singh (PW2).PW-8 Shamsher Jang Bahadur, Deputy Superintendent of Police: He deposed that he had verified the investigation conducted by Inspector Gian Singh, Station House Officer, and found the same to be correct.
He further deposed about taking into possession of the clothes of the deceased which were handed over to C.Ranjit Singh by Dr.Jagdish Singh Gill (PW5) after autopsy.
He further deposed that after visiting the police station, the articles which were taken into possession were handed over to Moharrir Head Constable.
He also deposed regarding recording of the statements of few witnesses as per Section 161, Cr.P.C.PW-9 Inspector Gian Singh: He was the Station House officer of Police Station, Jandiala, at the time of registration of the present case.
He himself conducted the investigation.
He fully supported the prosecution version.
After completion of the prosecution evidence, statements of appellant and his co-accused, in terms of Section Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -10- 313, Cr.P.C., were recorded.
The appellant denied the incriminating evidence appearing against him and in response to penultimate question replied as under:- “I am innocent.
The allegation against me are false.
I was married in the year 1992.
I do the work of binding electric motors at Jandiala Guru.
On 20.5.2000, I had gone to Jandiala for my work.
As the work was highly excessive, I kept working in the night.
On the next morning, when I came back, I saw the dead body of my wife.
I informed the Sarpanch of the village and police.”
.
In defence evidence, the appellant examined Lakhwinder Singh (DW-1).He deposed that the accused were known to him being his co-villagers and his house was adjoining to the house of the appellant.
Mehnga Singh (appellant) was residing separately from his parents.
He further deposed that before death of Palwinder Kaur @ Pappi, Mehnga Singh and his wife were residing separately.
Mehnga Singh was married in the month of May, 1992.
He further deposed that he did not hear any dispute of Mehnga Singh with his wife.
After completion of the evidence of both the sides, the learned trial court heard the arguments and held the appellant guilty for the offence punishable under Section 304-B, Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -11- IPC, and ordered him to undergo the sentence as has been described in the intial part of the judgment.
In the pre-lunch session, Mr.R.K.Bagga, Advocate, had advanced the arguments but in the post-lunch session.
Mr.Shashi Kumar Gupta, Advocate, came forward to make submissions on behalf of the appellant.
Mr.Sandeep Chhabra, learned Deputy Advocate General, Punjab, appeared and argued on behalf of the respondent-State.
Learned counsel for the appellant submitted that the prosecution witnesses had wrongly suffered the statement to the effect that the marriage of Palwinder Kaur @ Pappi with Mehnga Singh was solemnized in the year 1994, in fact, the said marriage was solemnized in the year 1992.
It was further submitted that just to bring the case within the four corners of Section 304-B, IPC, the prosecution came up with the stand that the marriage was solemnized in the year 1994.
It was also argued that Lakhwinder Singh (DW-1).co-villager of the appellant, was very specific in his deposition that the marriage of Mehnga Singh with Palwinder Kaur @ Pappi was solemnized in the month of May, 1992, therefore, there was no occasion for the learned trial court to hold that the marriage was solemnized in the year 1994.
It was also argued that the prosecution had failed to Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -12- substantiate that there was demand of dowry soon before the death of Palwinder Kaur @ Pappi and, as such, the basic ingredient of the offence punishable under Section 304-B, IPC, was missing.
It was also argued that the prosecution evidence was contradictory and the benefit of the same should have been extended to the appellant by the learned trial court.
In support of his contentions, learned counsel for the appellant had placed reliance on the judgments in the matters of Sakatar Singh and Others versus State of Haryana, (2004) 11 Supreme Court Cases 291; State versus Lal Mani, 2012(6) R.C.R.(Criminal) 1018; Subimal Sarkar versus Sachindra Nath Mandal and Others (2003) 2 Supreme Court Cases 566; Rani versus State of NCT of Delhi and otheRs.2011(6) RCR(Criminal) 1492; Nachhatar Singh and others versus State of Punjab, 2004(4) RCR(Criminal) 580; M.Srinivasulu versus State of A.P., 2007(4) RCR(Criminal) 146; Chandrama Singh and Others versus The State of Bihar, 2006(3) R.C.R.(Criminal) 105; Madhavrao versus State of Maharasthra, 1998(5) BCR206 and Saasikumar versus State, 2007(2) HLR728 On the other hand, learned counsel for the State vehemently controverted the submissions made by the learned counsel for the appellant and submitted that from the material available on record, it was abundantly clear that the prosecution had been able to substantiate its allegations Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -13- against the appellant.
It was fully proved that the marriage of Palwinder Kaur @ Pappi with Mehnga Singh (appellant) was solemnized 06 years and 03 months prior to the death of Palwinder Kaur @ Pappi; the appellant raised illegal demand of scooter from Palwinder Kaur @ Pappi (since deceased) and in continuation thereof harassed and mal-treated Palwinder Kaur @ Pappi and as a result thereof, she was forced to leave her matrimonial house and had to take shelter at the house of her parents.
It was also argued by the learned counsel for the State that in spite of effecting a compromise, the appellant did not mend his ways and continued to raise the illegal demand of scooter and the complainant side was paying the cash amount to the appellant so that Palwinder Kaur @ Pappi (since deceased) was not harassed or mal-treated by the appellant.
I have heard the learned counsel for the parties and with their able assistance gone through the material available on record.
Before dealing with the facts of the case, it is deemed appropriate to discuss the judgments cited by the learned counsel for the appellant.
In Sakatar Singh's case (supra) Hon'ble the Supreme Court held that the High court, being a fiRs.court of appeal on facts must independently applied its mind to the facts of the case and record its own Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -14- findings on the basis of its own assessment of evidence.
The paraphrasing of the judgment of the learned trial court by the High Court is not sufficient.
In Lal Mani's case (supra).Hon'ble Division Bench of Delhi High Court dismissed the appeal of the State filed challenging the order of acquittal passed by the learned trial court on merits.
In Subimal Sarkar's case (supra).Hon'ble the Supreme Court held that after perusing the facts of the case, High Court was justified in reversing the findings of the acquittal recorded by the learned trial court.
In Rani's case (supra).Hon'ble Delhi High Court held that every suicide after marriage cannot be presumed to be a suicide due to dowry demand.
It was further held that when death takes place within the four walls of matrimonial home, the husband and in-laws should come forward and explain as to what was the real cause of death and trial courts must intervene in all those cases where intervention is necessary for the ends of justice.
In Nachhatar Singh's case (supra).this Court on the facts of the said case held that Section 304-B, IPC, was not made out rather the mischief of Section 306, IPC, was attracted.
It was further held that no women, after marriage, Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -15- having a small child, would commit suicide without there being extreme reasons.
In M.Srinivasulu's case (supra) Hon'ble the Supreme Court on the facts of the said case held that the ingredients of Section 304-B, IPC, were not attracted, however, the accused could be convicted for the offence punisbable under Section 498-A, IPC, only.
In Chandrama Singh's case (supra).Hon'ble Patna High Court ruled that mere demand of dowry without any mental or physical torture would not attract the provisions for holding a person guilty of dowry death.
In Madhavrao's case (supra).Hon'ble Division Bench of Bombay High Court on the basis of the facts of the said case allowed the appeal while setting aside the order of conviction and sentence by holding that there was no clear, sufficient and reliable evidence to hold that the deceased was being treated with cruelty or was being harassed soon before her death on account of non-payment of dowry.
In Saasikumar's case (supra) Hon'ble Madras High Court allowed the appeal and acquitted the accused while holding that absolutely no evidence with regard to cruelty or harassment of the deceased was produced by the prosecution.
Besides, relevant statutory provisions relating to the Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -16- controveRs.involved herein are also reproduced here.
Sections 113-A and 113-B of the Indian Evidence Act read as under:- 113-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.
113-B Presumption as to dowry death: 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 has 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.”
.
Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -17- Section 304-B(1) IPC, deals with Dowry Death and is stated as follows:- (1) 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 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.”
.
Perusal of the above provisions would reveal that in order to prove dowry death, the follwing circumstances are required :- (I) that the marriage of the deceased had been solemnized within seven years of her death; (ii) the death of a woman was caused by any burns or bodily injury or occurs otherwise than under normal circumstances; (iii) 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 Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -18- with, any demand for dowry.
In view of the above statutory provisions, if we analyze the facts of the case in hand then it is made out that the marriage of Palwinder Kaur @ Pappi (since deceased) was solemnized 06 years and 03 months prior to her death; she had suffered her death otherwise than under normal circumstances; and that there was a demand of dowry by the appellant from the deceased and she was subjected to cruelty or harassment by her husband soon before her death.
Kulbir Singh (PW2).Bawa Singh (PW4).brothers of the deceased, are very emphatic in their depositions that the marriage of their sister Palwinder Kaur @ Pappi (since deceased) was solemnized about 06 years and 03 months prior to her abnormal death.
It has also emerged on record in their depositions that there was consistent demand of two wheeler by the appellant and in connection with the said demand Palwinder Kaur @ Pappi (since deceased) was mal-treated or harassed by him (appellant).On account of harassment or mal-treatment, Palwinder Kaur @ Pappi (since deceased) was forced to leave her matrimonial home and she had to take shelter at the house of her brother, i.e.the complainant (PW2).A panchayat was also convened by the complainant side and the appellant along with his parents assured the complainant Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -19- side that Palwinder Kaur @ Pappi would be kept nicely and on such assurance, Palwinder Kaur @ Pappi was sent to her matrimonial house after making payment of cash amount of ` 6,000/- by Kulbir Singh-complainant (PW2).but the appellant did not desist from his making illegal demand of scooter and continued to mal-treat or harass Palwinder Kaur @ Pappi (since deceased).Bawa Singh (PW4) yet another brother of Palwinder Kaur @ Pappi paid ` 5,000/- to the appellant so that Palwinder Kaur @ Pappi might not be harassed or mal-treated by her husband, i.e., the appellant, but still Palwinder Kaur @ Pappi had to face the miseries of her life at the hands of the appellant.
On receipt of a telephonic message on 21.04.2000, the complainant side came to know about the death of Palwinder Kaur @ Pappi and when Jagtar Singh (PW1).Kulbir Singh (PW2).Bawa Singh (PW4) and Gurdial Singh (PW7) along with other prosecution witnesses arrived at the matrimonial house of Palwinder Kaur @ Pappi, then they saw that the appellant and his other relatives had made all the preparations to cremate Palwinder Kaur @ Pappi, but when the complainant side noticed the injuries on the neck of Palwinder Kaur @ Pappi then they insisted upon the appellant and his relatives not to cremate Palwinder Kaur @ Pappi before the police was informed.
The matter was reported to the police, inquest Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -20- proceedings were effected and the autopsy was got conducted.
During inquest proceedings, Inspector Gian Singh (PW9) noticed the legature marks on the neck of Palwinder Kaur @ Pappi and during postmortem examination, Dr.Jagdish Singh Gill (PW5) also noticed the legature marks.
According to medical opinion, the injuries found on the person of Palwinder Kaur @ Pappi were ante-mortem in nature.
She had died due to asphyxia as a result of strangulation which was sufficient to cause death in ordinary couRs.of nature.
The oral version of Kulbir Singh (PW2) and Bawa Singh (PW4) was further supported by their co-villagers Jagtar Singh (PW1) and Gurdial Singh (PW7).There is no reason muchless substantial for this Court to disbelieve the depositions of Kulbir Singh (PW2).Bawa Singh (PW4).Jagtar Singh (PW1) and Inspector Gian Singh (PW9).The oral version of the prosecution is further fortified from the medical evidence.
Once the prosecution was able to prove mischief enshrined in Section 304-B, IPC, then the presumption would arise with regard to dowry death.
In his statement under Section 313, Cr.P.C., the appellant had not denied the fact that Palwinder Kaur @ Pappi had died unnatural death.
His defence was that he was working as motor mechanic and had gone to Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -21- his work and did not come back in the night at his house and on the next day, he came to know about the death of his wife.
His further defence was that his marriage with Palwinder Kaur @ Pappi was solemnized in the year 1992, i.e.beyond 07 years of death of Palwinder Kaur @ Pappi.
In support of his stand, he did examine Lakhwinder Singh as DW-1, who deposed that the marriage of Mehnga Singh was solemnized in the month of May, 1992, but he could not give the exact date of the marriage.
This Court while dealing with this aspect is conscious of the fact that the Court has to weigh the prosecution evidence and the defence evidence with the same scale and equal importance has to be attached to the evidence of both the sides.
But the ultimate question while appreciating the evidence of both the sides has to be decided in favour of either of the party, i.e.prosecution or defence.
In the case in hand, the prosecution has been able to prove beyond the shadow of reasonable doubt from the depositions of Jagtar Singh (PW1).Kulbir Singh (PW2).Bawa Singh (PW4) and Gurdial Singh (PW7) that the marriage of Palwinder Kaur @ Pappi (since deceased) had taken place 06 years and 03 months prior to her death and, as such, the deposition of DW-1 cannot be given any Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -22- importance, therefore, this Court holds as under: (I) that the abnormal death of Palwinder Kaur @ Pappi had taken place within 07 years of her marriage; (ii) She (Palwinder Kaur @ Pappi) was being mal- treated or harassed on account of demand of dowry by the appellant As a sequel to the above discussion, the judgment of conviction of the appellant for the offence punishable under Section 304-B, IPC, is affirmed.
However, there appears to be substance in the submission of the learned counsel for the appellant when he argued that in view of the totality of the facts and circumstances of the case, taking into consideration the fact that the deceased had left behind two minor children and the appellant was maintaining them and that the appellant is neither required nor involved in any other case, the sentence of rigorous imprisonment for 10 years awarded to the appellant was on higher side.
The Constitutional Bench of Hon'ble the Supreme Court in the matter of Khem Chand versus State of Haryana, 1994(3) RCR (Criminal) 625, held that Section 304-B, IPC, only raises presumption and lays down minimum sentence of 07 Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.S-277-SB of 2003 -23- years which may be extended to imprisonment for life, awarding of extreme sentence of imprisonment for life should be in rare cases.
In the case in hand, the marriage of the appellant was solemnized in the year 1994 and thereafter two children were born out of the said marriage.
Those children are stated to be residing with the appellant.
The appellant is neither required nor involved in any other case.
In view of the totality of the facts and circumstances of the case, this Court is of the considered opinion that there is scope for awarding the minimum sentence to the appellant and, as such, the substantive sentence of the appellant is reduced to rigorous imprisonment for seven yeaRs.The amount of fine and the default clause imposed by the learned trial court shall remain undistrubed.
Resultantly, the present appeal is partly allowed with the above modification in the order of the substantive sentence only.
June 19, 2014 (Naresh Kumar Sanghi) seema Judge Sharma Seema 2014.06.19 15:46 I attest to the accuracy and integrity of this document Chandigarh