Full Judgment Text
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PETITIONER:
THE STATE OF PUNJAB
Vs.
RESPONDENT:
BIMAL KAUR
DATE OF JUDGMENT: 24/10/1996
BENCH:
M.K. MUKHERJEE, S.P. KURDUKAR
ACT:
HEADNOTE:
JUDGMENT:
J U D G M E N T
S.P. KURDUKAR, J.
The two appellants alongwith Bimal Kaur (acquitted)
were put up for the trial for committing the murder of
Surinder Kaur, an offence punishable under Section 302/34
of the Indian Penal Code. Surinder Kaur was the wife of
Amarjit Singh (A-1) whereas Bimal Kaur (acquitted accused)
happens to be the wife of Prem Singh (A-2). The trial court
vide its judgment and order dated 28-7-1986 convicted that
appellants under Section 302/34 of the Indian Penal Code and
sentenced them to suffer life imprisonment and to pay a fine
of Rs. 3,000/-. Bimal Kaur, however, was given the benefit
of doubt and acquitted. The appellants aggrieved by the
order of conviction and sentence passed by the trial court
preferred an appeal to the Punjab & Harayana High Court at
Chandigarh. The Division Bench of the High Court on re-
appraisal of materials on record vide its judgment and order
dated April 5, 1988 dismissed the appeal and confirmed the
order of conviction and sentence passed by the trial court.
It is this judgment and order passed by the High Court which
is the subject matter of challenge in these two criminal
appeals filed by A-2 and A-1 respectively.
2. Briefly stated the prosecution case is as under :-
Surinder Kaur (since deceased) was the resident of village
Mithumajra in Patiala district. She was married to Amarjit
Singh (A-1) on March 10, 1985. Prem Singh is the brother of
Amarjit Singh. Both the brothers were staying together in
their house at village Mehma Walian. About seven and a half
month’s after the marriage, on October 27, 1985, at about
7.50 p.m, A-2 brought the corpse of Surinder Kaur in the
emergency department of Rajinder Hospital Patiala. Dr.
Mohinder Singh (PW 1), Emergency Medical Officer,
immediately conveyed a telephonic message to Police Station,
Civil Lines, Patiala, which thereupon was passed over by
wireless to the Station House Officer, Police Station,
Jhulkan, as the death was suspected to be due to poisoning.
3. It was alleged by the prosecution that on October 27,
1985, A-2 accompanied by his wife Bimal Kaur went to the
parental house of Surinder Kaur at village Mithumajra and
informed the inmates that Surinder Kaur was suddenly taken
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ill and was admitted to Rajinder Hospital, Patiala, however
she died there. Jaspal Singh (PW 3) and Sahib Singh (PW 4)
as also some other relatives of Surinder Kaur reached the
hospital where the dead body of Surinder Kaur was lying in
the emergency ward. ASI Jhanda Singh (PW 9) attached to the
Police Station, Jhulkan came to the hospital on October 28,
1985, at about 12.05 p.m. and recorded the statement of
Sahib Singh (PW 4) which was treated as an FIR (Ex. PF). It
was stated in the complaint that Surinder Kaur was
complaining that she was being harassed because A-1
(husband) was not given as promised a Rajdoot Motor Cycle in
dowry. It was further stated in the complaint that some of
the family members of A-1 and A-2 had administered the
poison which caused her death. The dead body of Surinder
Kaur was sent for post mortem examination and thereafter it
was taken to village Mithumajra for cremation.
4. It was alleged by the prosecution that since the
brothers suspected a foul play in the death of Surinder
Kaur, on October 29, 1985, Jaspal Singh (PW 3) went to
village Mehma Walion with a view to get the correct
information as regards the cause of her death. SI Gurnam
Singh (PW 8), Station House Officer, Police Station,
Jhulkan, during investigation recorded the statements of
various persons. Since the death of Surinder Kaur was
suspected due to poisoning, the viscera was sent to the
Chemical Analyser for examination. After completing the
investigation, SI Gurnam Singh (PW 8) opined that on offence
was made out against the appellants and, therefore,
submitted his report accordingly.
5. It appears that the superior police officers did not,
prima facie agree with the opinion given by SI Gurnam Singh
(PW 8) and therefore, further investigation was entrusted to
DSP Ajit Singh (PW 12) attached to the City Police Station,
Patiala. After conducting necessary investigation, he
submitted his report to the contrary and on the basis of the
said report, the appellants and the acquitted accused came
to be charge sheeted for the aforesaid offences.
6. The appellants in their statements recorded under
Section 313 Cr. P.C. denied the accusations and pleaded that
they are innocent and were not responsible for the death of
Surinder Kaur. They pleaded that it was a pure and simple
case of suicide. They, therefore, prayed that they be
acquitted.
7. The prosecution case entirely rested on the
circumstantial evidence and to proved the guilt of the
accused, it relied upon five circumstances which are set out
herein below :-
i) Motives ;
ii) On October 27, 1985 at about
4.00 p.m., Surinder Kaur was beaten
by A-1, A-2 and the acquitted
accused;
iii) Extra judicial confession made
by the accused to Bharpur Singh
which was overheard by Bagicha
Singh (PW 7);
iv) Medical evidence proved the
death of Surinder Kaur due to
violence and poisoning; and
v) No explanation was forthcoming
from the accused as to under what
circumstances Surinder Kaur died.
8. The prosecution mainly relied upon the evidence of
Jaspal Singh (PW 3) and Sahib Singh (PW 4) the de facto
complainant, who are brothers of Surinder Kaur and Amar
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Singh (PW 6) a neighbour who deposed to the beating to
Surinder Kaur. To prove the extra judicial confession, which
was alleged to have been made by the accused, the
prosecution examined Bagicha Singh (PW 7). In addition to
the above witnesses, the prosecution examined formal
witnesses i.e. Dr. Mohinder Singh (PW 1) and Dr. O.P.
Agarwal (PW 2), who conducted the post-mortem examination
and the report of the chemical analyst.
9. The trial court on appraisal of the oral and
documentary evidence on record found that the prosecution
had successfully established all above circumstances which
completed the chain of circumstantial evidence which was
pointer to the guilt of the appellants (accused) excluding
any other hypothesis of their innocence, however, gave
benefit of doubt to Bimal Kaur and acquitted her of all the
charges. The trial court consistent with its findings vide
its judgment and order dated July 28, 1986, convicted the
appellants under Section 302/34 of the Indian Penal Code and
sentenced both of them to suffer imprisonment for life and
to pay a fine of Rs. 3,000/-; in default of payment of fine,
further RI for six months.
10. Being aggrieved by the order of conviction and
sentence passed by the trial court, the appellants (A-1 and
A-2) preferred an appeal to the High Court of Punjab and
Haryana at Chandigarh. The State of Punjab also preferred an
appeal against the order of acquittal in respect of Bimal
Kaur. Both these were heard together and the learned
Division Bench of the High Court vide its judgment and order
dated April 5, 1988 dismissed both the appeals. Feeling
aggrieved by the judgment and order passed by the high
Court, Prem Singh-appellant (A-2) has filed criminal appeal
No. 556 of 1988 whereas Amarjit Singh-appellant (A-1) has
preferred criminal appeal No. 618 of 1988 to this Court. The
State of Punjab has also filed criminal appeal Nos. 305-306
of 1989 to this Court challenging the order of acquittal of
Bimal Kaur. Since these three appeals arise out of a common
judgment passed by the High Court, they are being disposed
of by this judgment.
11. Mr. M.S. Gujral, learned Senior Counsel appearing in
support of the appeals filed by A-1 and A-2 assailed the
impugned judgment on several grounds. He urged that there is
no convincing evidence on the record to come to the
conclusion that the appellants meted out an ill treatment to
Surinder Kaur. The evidence of Jaspal Singh (PW 3) and Amar
Singh (PW 6) is totally artificial and it would not be safe
to rely upon their evidence for proving the ill treatment.
Mr. Gujral also assailed the evidence of Amar Singh (PW 6)
who deposed about the beating to Surinder Kaur by the
appellants on October 27, 1985, at about 4.00 p.m., being
concocted and totally unreliable. The evidence of Bagicha
Singh (PW 7) who claimed to have overheard the extra
judicial confession is totally untrustworthy especially when
the prosecution had failed to examine Bharpur Singh to whom
the appellants alleged to have confessed their guilt. As
regards non explanation by the appellants as to how Surinder
Kaur died, Mr. Gujral urged that prosecution had led no
evidence on the record to show that Amarjit Singh was
present at the time of the incident in question. Explanation
given by the appellant (A-2) that Surinder Kaur might have
swallowed the poison for committing suicide deserved to be
accepted in view of the failure of the prosecution to prove
that the appellants meted out any ill treatment to Surinder
Kaur. Learned Counsel, therefore, urged that the prosecution
had failed to prove the most vital circumstances against the
appellants and in view of thereof, both the appellants be
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acquitted.
12. Ms. Rupinder Kaur, learned Advocate appearing for the
State of Punjab supported the impugned judgment of
conviction. She urged that both the courts below have
concurrently held that the prosecution has proved all the
circumstances, it would not be appropriate for this Court to
interfere with the said findings in an appeal under Article
136 of the Constitution of India. In support of an appeal
filed by the State of Punjab, she urged that on the proved
circumstance, even Bimal Kaur ought to have been convicted
alongwith other co-accused and no distinction could have
been made. She, therefore, prayed that the order of
acquittal of Bimal Kaur be set aside and she be punished in
accordance with law.
13. We have given our careful thought to the submissions
urged before us. We are also conscious that the two appeals
filed by the appellants (A-1 and A-2) are on obtaining
Special Leave under Article 136 of the Constitution and
ordinarily the findings recorded by the courts below are
not disturbed by this Court. In the present case, motive is
a vital issue and evidence adduced by the prosecution in
that behalf is not satisfactory and there are certain
inherent improbabilities which were overlooked by the courts
below. Jaspal Singh (PW 3) in his evidence has stated that
about 20/22 days prior to the death of Surinder Kaur, she
had come to his house on a condolence call accompanied by
her husband Amarjit Singh (A-1). Both of them went back and
neither of them then visited his house when Bhog ceremony
was held. His brother Sahib Singh went to the house of
Surinder Kaur to enquire as to why she did not attend the
Bhog ceremony ? At that time, she alleged to have told that
she had a quarrel with her husband and Bimal Kaur (acquitted
accused) taunted her. Surinder Kaur then told him that her
husband and Prem Singh (A-2) were not satisfied with Rajdoot
Motor Cycle and that A-1 wanted a Bullet motor cycle which
was promised. He admitted that he did not receive any letter
or oral complaint from Surinder Kaur as regards the ill
treatment meted out to her for Bullet Motor Cycle at
anytime. The omission was brought on record as regards the
Bullet Motor Cycle which was promised in dowry and was not
given. This is a very vital omission being suggestive of the
fact that it was an improvement at the trial. Same is the
evidence of Sahib Singh (PW 4) who testified to have come
to know about the demand of Bullet Motor Cycle, there is no
other evidence adduced by the prosecution to prove the ill
treatment meted out to Surinder Kaur. There is no dispute
that the parents of Surinder Kaur (deceased) had given
Rajdoot Motor Cycle.
14. It is wholly unnecessary to reproduce the evidence of
Sahib Singh (PW 4) on this issue because he had first time
heard the alleged demand of Bullet motor cycle from his
brother. In this view of the matter, it is very difficult to
accept the evidence of Jaspal Singh (PW 3) and Sahib Singh
(PW 4) on the issue of ill treatment meted out to Surinder
Kaur and a cause for administering the poison to her.
Surinder Kaur was studied upto Matriculation and a
knowledgeable girl. During the period of seven and a half
month of her marital life, at no stage such a demand of
Bullet Motor Cycle was ever insisted by A-1 or any other
accused. If this be so, in our opinion, motive sought to be
relied upon by the prosecution cannot be said to have been
proved.
15. Coming to the next submission of Mr. Gujral, namely,
beating to Surinder Kaur on 27-10-1985 at about 4.00 p.m.,
the only evidence on record is that of Amar Singh (PW 6)
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who was residing in a house adjacent to the house of the
appellants. He has stated in his evidence that on October
27, 1985, at about 4.00 p.m., he had gone to the house of
the appellants to borrow his Rehri for paddy crop and at the
time, he heard the rule of a girl from the house of the
appellants saying "Chachi Marti Chachi Marti". He then
stated that he climbed upon the boundary wall of the house
of appellants and from there he saw the beating given to
Surinder Kaur by the appellants and Bimal Kaur. When he
wanted to intervene, he was told that it was their domestic
matter and no one should interfere in it. He admitted in his
evidence that his statement was recorded by the police after
20 to 22 days of the incident. He also denied that his
statement was recorded by Executive Magistrate, Sh. Acharya
at Patiala on 19th December, 1985. When he was shown his
sworn statement (affidavit Ex. Dx), he denied his thumb
impression thereon and stated that he did not make such
statement. We have gone through the evidence of this witness
very carefully and we are satisfied that his evidence is not
trustworthy and cannot be accepted to prove the fact of
beating or ill treatment meted out to Surinder Kaur on
October 27, 1985.
16. Coming to the next circumstance, namely, the extra
judicial confession alleged to have been made by the
appellants to Bharpur Singh, the prosecution had not chosen
to examine him as a witness at the trial. One Bagicha Singh
(PW 7) was examined who in his evidence has stated that on
10th November, 1985 at about 11.00 a.m., he had gone to the
house of Bharpur Singh for some work and at that time both
the appellants had come to his house; they were nervous and
when he (Bharpur Singh) inquired from them the reason,
Amarjit Singh (A-1) told that they had committed the murder
of Surinder Kaur on October 27, 1985. During the cross-
examination, several material omissions were brought on
record. He had not stated before the police that he was on
visiting terms with Bharpur Singh or A-1 and A-2. The
evidence of this witness is full of material omissions. If
this witness was not close to the appellant it is extremely
doubtful whether they would confess the guilt in his
presence. The courts below have over looked this aspect and
erroneously held that the prosecution has proved the extra
judicial confession alleged to have been made by the
appellants. In our considered view, it is not safe to accept
this evidence in the absence of corroboration.
17. Coming to the medical evidence and the report of the
chemical analyser, there is no serious challenge to this
part of the evidence by the defence. Therefore, we may
safely conclude that Surinder Kaur met with a homicidal
death due to poison.
The sole question that needs to be considered in the
light of this expert’s evidence is as to whether it was a
suicidal death or homicidal. Having regard to the facts and
circumstances of the case, we are of considered view that
prosecution has failed to prove beyond reasonable doubt that
Surinder Kaur met with a homicidal death. The defence plea
of suicide cannot be ruled out.
18. It also needs to be noticed that the prosecution had
led no evidence to show that Amarjit Singh (A-1) was present
at his house at the time of incident in question. It is
really unfortunate that the marriage of Surinder Kaur which
took place seven and a half month’s before the date of
occurrence ended in such a tragic death. From the evidence
on the record we are unable to pin point the guilty person
although her death is shrouded with suspicious
circumstances. It is in these circumstances, we are
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constrained give benefit of doubt to both the appellant.
19. In the result, Criminal Appeal No. 556 of 1988 filed
by Prem Singh (A-2) and Criminal Appeal No. 618 of 1988
filed by Amarjit Singh (A-1) are allowed. The impugned order
of conviction and sentence dated April 5, 1988 passed by the
High Court against both the appellants under Section 302
read with Section 34 of the Indian Penal Code is quashed and
set aside and they are given the benefit of doubt and are
acquitted. The Criminal Appeal Nos. 305-306 of 1989 filed by
the State of Punjab and dismissed. Both the appellants are
discharged from their respective bailbonds.