CASE NO.: Appeal (crl.) 81 of 1998
PETITIONER:
Sakatar Singh & Ors.
RESPONDENT:
State of Haryana
DATE OF JUDGMENT: 13/04/2004
BENCH:
N.Santosh Hegde & B.P.Singh.
JUDGMENT:
J U D G M E N T
SANTOSH HEGDE,J.
The first appellant before us is the father of the second
appellant and the third appellant is the wife of the first appellant.
These appellants and three others who are sisters of second
appellant herein were charged for offences punishable under
Sections 306 and 498A read with Section 34 IPC before the
Additional Sessions Judge, Ambala who after trial acquitted
accused Nos. 4 to 6 while convicted the appellants herein for
offences punishable under Sections 306 and 498A of the IPC
read with Section 34 IPC. The first appellant Sakatar Singh was
sentenced for offence punishable under Section 306 for four
years RI and a fine of Rs.500/- and in default in payment of
fine to undergo further RI for three months, while he was
sentenced for an offence punishable under Section 498A for
two years RI and a fine of Rs.200/- and in default in payment of
fine to undergo further RI for one month. The second appellant
Kirpal Singh was sentenced for seven years RI for offence
punishable under Section 306 IPC and a fine of Rs.500/- and in
default of payment of fine to undergo further RI for three
months, he was also sentenced to two years RI under Section
498A IPC and a fine of Rs. 200/- and in default in payment of
fine to undergo further RI for one month. The third appellant
Smt. Joginder Kaur was sentenced to undergo three years RI for
offence under Section 306 and a fine of Rs.200/- and in default
in payment of fine to undergo further RI for one month. While
for offence under Section 498A IPC, she was sentenced to
undergo RI for two years and a fine of Rs.100/- and in default
in payment of fine to undergo RI for one month.
The appellants herein preferred an appeal before the High
Court of Punjab and Haryana at Chandigarh against the
judgment and conviction of the learned Addl. Sessions Judge,
Ambala being Criminal Appeal No. 322-SB/87 and the said
appeal having been dismissed confirming the conviction and
sentence awarded on the appellants by the Sessions Court the
appellants are now before us in this appeal.
The prosecution case briefly stated is as follows:-
Deceased Devinder Kaur was married to second appellant
Kirpal Singh in the year 1982 and they had two issues from the
aid marriage a girl by name Gurdip Kaur who was two years
old and a boy named Bablu aged nine months on the date of
incident. The accused persons with their unmarried daughters
and said Devinder Kaur with her children were living at
Layalpur Basti in Ambala City. The prosecution alleges within
two months of the marriage of the second appellant to said
Devinder Kaur the appellants and their daughters started making
unlawful demand for TV, scooter and fridge which was not
fulfilled by the parents of said Devinder Kaur. It is also stated
that after the birth of the second child none from the family of
her in-laws i.e. family of the accused had come to see her at her
maternal home situated at Landran because they were not happy
with the family of Devinder Kaur for not satisfying their
demands. The prosecution further alleges about nine months
prior to the date of incident which happened to be on 21.5.1986
father of said Devinder Kaur died and on his death the
appellants were forcing said Devinder Kaur to make a
demand for share in the family property and this having not
acceeded to by said Devinder Kaur she was subjected to
harassment and cruelty. It is the further case of the prosecution
that mother of said Devinder Kaur (PW-7) had visited the house
of the appellants on 18.5.1986 when she found said Devinder
Kaur in tears and during her said visit she did not speak to PW-7
since her mother-in-law would not allow her to do so. The
further case of the prosecution is that on 21.5.1986 between 9
and 10 a.m. in the house of the appellants said Devinder Kaur
committed suicide along with her two minor children by
pouring kerosene and burning herself and the children. The
prosecution alleges that A-1 took the burnt bodies of the
deceased to the hospital and information in regard to this
incident was conveyed to the family of Devinder Kaur through
PW-12 (Ajmer Singh). On hearing the said news, PW-7 and
other members of the family rushed to Ambala and on coming to
know that her daughter and grand children were murdered by the
appellants, the mother of the deceased (PW-7) lodged a
complaint at about 4.00 p.m. on 21.5.1986. The bodies in
question were then taken to Landran the village of PW-7 and
cremated there. It is also alleged that no member of the
appellants family attended the last rites of the deceased.
Based on the complaint lodged by PW-7 though originally
a crime under Section 302 IPC was registered against the
appellants, after investigation a chargesheet was filed for
offences under Sections 306 and 498A read with Section 34
IPC and during the course of the trial the prosecution examined
as many as 16 witnesses out of whom it relied on the evidence
of PW-7 mother of the deceased, PW-8 the brother of the
deceased, PW-12 a family friend of the deceased and PW-14
the maternal uncle of the deceased to establish the case of
cruelty and harassment meted out to said Devinder Kaur
because of which she was forced to commit suicide by burning
herself along with her minor children. The trial court accepting
the evidence of the said prosecution witnesses found the
appellants guilty as charged while it acquitted accused Nos. 4 to
6 who were the daughters of appellant No.1 on the ground that
the prosecution had not established its case as against these
appellants. In appeal as stated above the High Court has agreed
the findings of the trial court.
Shri Jaspal Singh, learned senior counsel appearing for the
appellants contended that the trial court has proceeded on the
mere ipse dixit of the four witnesses examined by the
prosecution to establish the case of alleged cruelty and
harassment meted out by the appellants to the deceased without
really there being any legal material to prove the guilt of the
appellants. He pointed out as per explanation to Section 498A of
the Indian Penal Code, 'cruelty' has been defined which
definition also holds good for establishing the guilt under
Section 306 IPC and in the instant case except the fact that
these witnesses have orally stated that there was some demand
for TV, scooter and fridge as also demand for share in the
property of the deceased father, no acceptable material
whatsoever has been produced by the prosecution to either
establish those facts or to prove that pursuant to the said demand
the appellants in any manner committed any act which would
have driven the deceased to commit suicide or harassed the
deceased in any manner with a view to coerce her to meet the
unlawful demand of the appellants. He submitted that the trial
court did not look into the necessary ingredients of Section 498A
and 306 IPC while coming to the conclusion that the appellants
were guilty of the offence charged. It was the argument of the
learned counsel for the appellants that the trial court obviously
was under an impression that even a legal demand, by itself
without anything more would constitute cruelty which the learned
counsel submits is wholly erroneous. The learned counsel also
pointed out that whatever evidence was produced by the
prosecution to establish the so-called illegal demand was
merely hear say and not even admissible under Section 32 of the
Evidence Act, and none of the witnesses who spoke as to the
demand made by the appellants had any personal knowledge
about the said demand. Therefore, even in regard to the alleged
demand accepted by the trial court the learned counsel
submitted the same cannot be sustained because the same is based
on inadmissible evidence.
Coming to the judgment of the High Court which has
confirmed the conviction and sentence awarded by the trial
court, the learned counsel submitted that there has been no
application of mind whatsoever by the High Court which is the
first appellate forum and which is duty bound to re-appreciate
the evidence. He pointed out that a bare reading of the judgment
of the High Court would show that the same is nothing but a
copy of the judgment of the trial court both in regard to the
narration of facts as also in regard to the findings.
Shri Vinay Kumar Garg, learned counsel appearing for the
State however contended that it is clear from the evidence of PWs
7, 8, 12 and 14 that the appellants had made certain unlawful
demands because of which the deceased committed suicide. It is
the contention of the learned counsel that once an unlawful
demand is established nothing more is required to be proved that
pursuant to the demand there was any other action or overt act
of cruelty. On the said basis, learned counsel submitted that the
findings of the courts below being concurrent this appeal is liable
to be dismissed.
Having heard the learned counsel and perusing the records,
we notice that since it is the contention of the appellants that the
High Court being the first court of appeal on facts, has not applied
its mind independently to the facts of the case and it has blindly
copied the findings of the trial court, the appellants have lost the
benefit of right of appeal because of which their case is
prejudiced, we assuming for the time being it to be so, think at this
belated stage a remand is not an appropriate remedy. Therefore,
we will consider the material on record ourselves to re-appreciate
the evidence adduced in this case and determine the guilt or
innocence of the appellants.
The allegations against the appellants of cruelty is primarily
based on the following facts :
(1) That the accused started harassing and ill treating
Devinder Kaur two or three months after the
marriage by demanding Television, Scooter and
Fridge;
(2) The family of the deceased has been paying
money to the deceased in instalments to satisfy
the demands of the appellants. Sometime
Rs.2000/- and sometimes Rs.3000/- were paid for
this purpose;
(3) After the death of the father of the deceased, the
family of the deceased were compelling the
deceased to make a demand for her share in the
family property.
(4) That after the birth of the second child the
appellants did not take back the deceased and the
children from her maternal home for nearly 7
months.
(5) The appellants were not permitting the deceased
to talk to her family members.
(6) When PW-8 brother of the deceased visited her,
the deceased had asked him to arrange funds to
meet the demands of her in-laws and that they
were harassing her because of which she was sad.
In law, the prosecution has to prove the fact that the victim
was subjected to cruelty or harassment, and such cruelty should
be one which comes within the explanation to Section 498A
which defines "cruelty".
In the above background, we will now consider the
evidence led by the prosecution to establish the charge levelled
against the appellants. In this process, we will first examine the
letter written by the deceased to her mother. Though this letter
does not mention the date, there is no dispute that the same was
posted on 20.5.1986 which is evident from the postal seal found
on the envelope which would be a date prior to the incident
leading to the death of Devinder Kaur and the children. The
contents of the letter indicates what transpired during her
mother's visit to her in-laws house and does not anywhere even
remotely indicate any demand made by her in-laws. It only
reflects the attitude of the deceased towards her in-laws and that
she entertained a feeling that her mother was not properly treated
by her mother-in-law during her last visit. The letter also
indicates that while the deceased did not wish that her mother
should visit her in-laws' place, her brother could do so which is
clear from the following statement in the said letter : "Mother do
not worry about me. I have make up my will power. When I go
angry then I also utter a few things. Mother send brother here,
you need not come because they are after your blood." In the said
letter she also complained against her brother's wife accepting a
Shagun of Rs.20/- from her mother-in-law and says that the same
should be returned. A reading of the above letter does indicate
that her relationship with her mother-in-law was not good but at
the same time she herself was prone to get angry at times and was
prepared to retort. In our considered opinion, this letter does not,
in any manner, indicate either there was any unlawful demand
from her in-laws or pursuant to such demand there was any
harassment leading to cruelty.
In this context, it will be appropriate for us to consider the
contents of two other letters brought on record by the defence.
One such latter is dated 10.3.1986 marked at Ext.DA written by
PW-8 to the husband of the deceased (A-2). Of course, this is a
letter written about two months before the death of the deceased.
At this stage, we must note the fact that PW-8 has denied having
written this letter but PW-7 the mother admits the letter being that
of her son PW-8. This letter refers to the arrangement of the
marriage of deceased's brother and requests the appellants to
attend the marriage function. The relevant portion of the letter
reads thus: "You will glad to know that the marriage of Paramjit
has been fixed for 23.3.1986, Sunday. You may keep ready. We
will drop letter. Pay my respect to Maserji and Massiji." It also
asked A-2 to bring his sister (the deceased) and her children. This
letter indicates two facts that as on 10.3.1986 the relationship
between the parties was still cordial and as on that date deceased
and her children were in her in-laws house. The next letter which
is also relied upon by the defence is marked Ex.DB dated
20.2.1986 is from the deceased to her husband (A-2) written
about three months prior to the date of incident. The contents of
this letter show that A-2 was corresponding with her and she was
replying his letter though belatedly because of the illness of her
daughter. She also requested him to reply and indicates that she
was eagerly waiting for his reply. She also indicates in the said
letter that she was planning to come back on Wednesday or
Thursday next. The said letter further indicates that A-2 wanted
her to come back within 4 or 5 days but she had overstayed in her
paternal home. Ex.DA and DB prove one other fact that between
20.2.1986 and 10.3.1986 the deceased and her children had
returned to the matrimonial home and the prosecution case that
for 7 months after the birth of the second child, the deceased was
not brought to her matrimonial home is wholly false. That apart
none of these letters indicate that there was any demand from the
appellants for TV, scooter or fridge.
It is in this background, the prosecution primarily relies on
the evidence of PWs.7 and 9, that is, the mother and brother to
establish the prosecution case.
We will now examine whether such allegations stand
proved by the evidence of these two witnesses.
PW-7 the mother in her evidence states that her daughter
was married to A-2 about 4 years prior to the date of her evidence
and the accused started harassing and ill treating the deceased two
to three months after the marriage by demanding TV, scooter and
fridge. She also says that the deceased was asked by the accused
to arrange for funds and pursuant to such demand she had been
sending money in instalments of Rs.2000/- sometimes and some
other time Rs.3000/-. She further says that when her elder son
PW-8 visited the house of the accused he had to assure them that
he would arrange for their every demand item by item after the
crop matured for harvesting. She then makes an omnibus
statement that Devinder Kaur (the deceased) was being harassed
by her husband Kirpal Singh accused, by father-in- law Sakatar
Singh, by mother-in-law Joginder Kaur and by her sister's-in-
law, namely, Palvinder, Jasvinder and Kulvinder. She also makes
a statement that the accused person had demanded the deceased
to stake a claim for a share in her father's property which the
deceased refused to do.
In the cross-examination when she was asked how she came
to know of these demands of the appellants for TV, scooter,
fridge and money, she stated that she came to know the same
from the letters written by her daughter but she failed to produce
those letters because of which an adverse inference will have to
be drawn. Further nowhere in her entire evidence she has stated
that the deceased at any point of time had personally told her
about these demands. In the absence of such material, more so
because of the fact this witness herself does not say that the
deceased told her orally about these demands, and the alleged
letters having not been produced, this part of her evidence will
have to be treated as not based on personal knowledge but as an
opinion of hers, and as such the same is inadmissible in evidence.
Therefore, the prosecution cannot rely upon such evidence to
base a conviction. Even the demand of the in-laws in deceased's
father's property was not told to PW-7 by the deceased but PW-7
was allegedly told about this by Ajmer Singh PW-12, but PW-12
does not support PW-7 in this regard. That apart in the cross-
examination when it was pointed out to her that she had not
mentioned in her previous statement about this demand for
inheritance in deceased father's property, she stated that she had
told the Investigating Agency, but the same was not found in the
said statement of hers. It is also clear from her evidence in the
cross-examination that she had not even told the Investigating
Agency about the demand for money in instalments as spoken to
by her in her examination-in- chief. It is to be noticed further that
even though she in her examination-in-chief stated that when
PW-8 visited the deceased a few days before the incident in
question and the deceased had complained to PW-8 about the
demand by her in-laws, PW-8 in his evidence does not support
PW-7 in this regard. From the above it is clear
that the evidence of PW-7 is of no assistance to the prosecution
to establish the fact that there was any demand, much less an
unlawful demand at all by the appellants on the deceased.
The trial court, in our opinion,
seriously erred in placing reliance on inadmissible part of PW-7's
evidence and ignoring the omissions and improvements established
by the defence in the course of cross examination of PW-7.
We will now consider the evidence of PW-8 who is the
brother of the deceased who in his evidence has stated that the
accused had started harassing and mal-treating the deceased for
more dowry and that they were complaining that she had not
brought anything significant in the dowry and they expected TV,
scooter and fridge in the dowry. While considering this part of his
evidence, it is necessary to note that he in the latter part of his
evidence has stated that these demands were made by the accused
persons after his father died which was on 21.7.1985 (20 days
before the birth of second child of the deceased Devinder Kaur
which was on 10.8.1985). Whereas PW-7 in her evidence had
stated that the demands for TV, Scooter and Fridge was made two
months after the marriage of the deceased. We have noticed that
the marriage of the deceased took place sometime in the year
1982 and the deceased died on 21.5.1986 and father of the
deceased had died 9 months prior to the death of the Devinder
Kaur which was on 21.7.1985. If the statement of PW-7 in regard
to these demands for TV, Scooter and Fridge is true the same was
sometime in the year 1982 itself, whereas as per PW-8 the said
demand was after August, 1985, that is, after the death of the
father. This contradiction in regard to the timing of the demand is
a material contradiction which goes to the root of the prosecution
case and the same is not considered by the trial court. This
witness then states that none of the appellants, including A-2 the
husband of the deceased, visited the deceased for nearly 7 months
after the birth of her second child. This allegation which indicates
neglect or a mental torture of the deceased by the indifferent
attitude of A-2, in our opinion, is per se unbelievable because of
the letter Ex.DA to which we have already referred wherein this
witness himself wrote to A-2 requesting him and other members
of the family to attend the wedding of his brother Paramjit. This
letter was addressed on 10.3.1986 and in the said letter he
specifically says to convey his respect and love to his sister and
children and to bring them to the wedding which means by that
time the deceased was already in her in-laws house and the
allegation of PW-8 that the deceased was not taken back from her
maternal home for 7 months after the delivery of the second child
by A-2 stands falsified. Then again this witness is not very sure
whether various demands made by the appellants were towards
dowry or towards the birth of a male child because in one part of
his examination he states : "The reason for their in-difference was
that on the birth of the male child, they should be given
something by the parents of Devinder Kaur. We asked the
accused party to have patience and that we would give something
after the crop ripens and the harvests done". From this part of the
evidence of PW-8, we get an impression that demand for TV,
scooter and fridge was because of the birth of a male child and
not as a part of dowry. This discrepancy between the evidence of
PW-7 and PW-8 is also not considered by the courts below. It is
to be seen from the evidence of this witness that he was on
regular visiting terms with his sister and practically every Sunday
or alternate Sunday he used to visit her. We find it extremely
difficult to accept the post death allegation of these witnesses for
the unlawful demands when the relationship between them was
such that the appellants were invited for every function in the
house of PW-7 and they attended those functions. PW-8 was a
regular visitor to the house of the accused and inspite of all that
the appellants would indulge in such activity of cruelty and
harassment which would compel the deceased to commit suicide.
From the above discussion of the evidence of this witness, we are
unable to come to the conclusion that the prosecution has
established the allegation of demand made by these appellants.
The next witness whose evidence requires consideration by
us is PW-13, Kulwant Singh, a family friend. He in his evidence
stated that during his life time the father of the deceased used to
tell him that the deceased Devinder Kaur was sad and unhappy
after the marriage and she was being harassed and ill-treated on
account of bringing insufficient dowry. He also stated before the
court that the deceased's father used to tell him that the accused
were demanding more dowry that is TV, scooter, fridge etc. The
defence had objected to this answer of the witness on the ground
that this witness was trying to prove the statement of a deceased
person. This objection was overruled by the Court on the ground
that the witness was deposing about the fact from his knowledge
which he had acquired in his routine life. We do not agree with
the trial court that what was being spoken to by this witness in
regard to harassment and ill treatment on account of insufficient
dowry by the witness was a fact which he had known personally,
because he was actually referring to the statement of the deceased
father of Devinder Kaur and not to a fact based on his personally
acquired knowledge. After the said objection was raised, this
witness tried to import some personal knowledge by stating that
he had an occasion to meet the deceased Devinder Kaur at Banur
in Rajpura Tehsil of Patiala Distt. where per chance he met the
deceased when deceased mentioned to him that she was on way
to her in-laws but was not sure what was in store for her there.
This witness also says that the deceased further mentioned that
after the death of her father and after mutation of her father's
property was sanctioned, the bitterness between the sides had
increased. We have no doubt that this is a statement made by the
witness only to improve upon his earlier inadmissible statement. This is clear from the answer given by this witness in the cross-
examination when he states that the police did not enquire from
him in the hospital at the time of death of Devinder Kaur nor he
had volunteered to mention any of the above facts stated by him
in his examination-in-chief to the police at that time. It is also
relevant to note that his statement was recorded by the police for
the first time on 25.7.1986 nearly two months after the incident. He also admits in the cross-examination that he does not
remember the day, date or the month when father of the deceased
mentioned to him about the ill treatment of his daughter. Even the
fact of the deceased Devinder Kaur meeting this witness at Banur
in Rajpura Tehsil is also highly doubtful because in the cross-
examination he states that at the time when he met the deceased
at the said place she was accompanied by her brother Jaspal
Singh PW-8, but PW-8 does not corroborate this fact. Therefore,
in our opinion, to base a conviction on the evidence of this
witness would be highly dangerous.
The next witness relied upon by the prosecution to establish
its case is PW-14 Gurbux Singh who is the maternal uncle of the
deceased. He in his evidence states that after two or three months
of the solemnization of the marriage, Devinder Kaur started
complaining that she was being harassed. This was confirmed to
him by his brother-in-law, who was the father of the deceased
Devinder Kaur. This statement again in our opinion is not
admissible because he has no personal knowledge about the
harassment meted out to the deceased Devinder Kaur but he was
only repeated what his brother-in-law had stated to him. Then
again there is a contradiction in regard to the timing of the
demand which according to the information of this witness was
two months of the marriage, while PW-8 specifically stated such
demands started coming in after the death of his father about
which we have already expressed our view herein above. PW-14
also states in his evidence that with the passage of time he learnt
that the accused had asserted for a share also in the property of
his brother-in-law which again is mere hear say notice of which
cannot be taken for basing a conviction. In the cross-examination
this witness stated that he had mentioned in his statement to the
police about the aforesaid three demands made by the accused,
but when confronted with his previous statement, it was noticed
by the court that no such statement was made. He also admits in
the cross-examination that he had no occasion to visit the in-laws
of Devinder Kaur in Ambala after her marriage and he did not
receive any letter or other message from Devinder Kaur or from
her father or her mother or any other relation of the deceased
intimating that Devinder Kaur was being harassed on account of
demand for more dowry. This admission clearly goes to show
that whatever he spoke in the examination-in-chief about the
demand made by the accused was not based on his personal
knowledge but on what he heard from others. He further admits
in his cross-examination that in the statement before the police he
did not say that Devinder Kaur committed suicide under pressure
of the accused because of the demand of dowry. In our opinion,
such evidence which is not based on personal knowledge of the
witness cannot be the foundation for basing a conviction.
Having discussed the oral evidence led by the prosecution,
we will now consider certain circumstances relied by the trial
court to hold the appellants guilty of the offences charged. These
circumstances have already been discussed briefly by us
hereinabove but since the trial court has placed considerable
reliance on these circumstances, we think it appropriate to deal
with the circumstances once again somewhat elaborately. One
such circumstance taken note of by the trial court is based on an
allegation made by PWs.7 and 8 that A-2 did not go to the
parental house of the deceased Devinder Kaur after her second
delivery for nearly 7 months which circumstance according to the
trial court, indicated the indifference of A-2 towards the deceased
because of the fact that the family of the deceased did not fulfil
his and his family's demands. In our opinion, a perusal of the
evidence led by the prosecution in this regard itself shows that
this is a non-existent circumstance. The second child was born on
10.8.1985. According to the evidence of PWs.7 and 8, A-2 did
not come to their house for 7 months after the birth of this child
which would mean that till about March, 1986 A-2 did not visit
his in-laws nor did he take his wife and children to his own
house. This statement is clearly disproved by the documentary
and other oral evidence found in the record. Ex. P.28, a letter written by deceased Devinder Kaur to A-2 which itself shows that
A-2 wanted her and the children to come back to the house of A-
2 at the earliest but she could not come because of the illness of
her first child. She indicated in the said letter that she would
come as soon as the child gets well. Thus a reading of this letter
Ex.P.28 shows that it is not because of A-2 that her stay was
prolonged in her mother's house. Ex. DA a letter written on
10.3.1986 by PW-8 to A-2 shows that by then deceased and her
children were already in the house of A-2 and PW-8 wanted A-2
and his family along with the deceased and her children to attend
the wedding of his younger brother which was fixed for
23.3.1986. If really deceased Devinder Kaur and their children
were still in the house of her mother the question of PW-8
requesting A-2 to bring them for the wedding and conveying his
love and respect to them would not have arisen. As a matter of
fact it has come in evidence that the entire family of A-2 along
with the deceased had attended the wedding of the younger
brother of PW-8. Thus it is clear from the prosecution case itself
that the allegation of neglect as made out in the evidence of
PWs.7 and 8 is wholly incorrect.
Next circumstance relied by the trial court as noted
hereinabove is that the accused had made a demand for a share in
the property of deceased Devinder Kaur's father. Like the earlier
circumstance we have dealt with this somewhat briefly while
discussing the oral evidence but at the cost of repetition we think
it necessary to further discuss this aspect once again. The material
in support of this allegation is found in the evidence of PWs.7, 8,
13 and 14. While discussing their evidence we have noted that
even according to the prosecution none of these witnesses except
PWs.8 and 12, had ever been told by Devinder Kaur personally
about this demand. So far as PW-7 is concerned she stated that
she came to know of this demand through PW-12 Ajmer Singh
but Ajmer Singh has not supported PW-7 in this regard. PW-7
had not stated to the Police also in her previous statement about
this part of the demand. Therefore it is clear that this witness is
trying to improve her case for the first time in the court. Similar
is the evidence of PW-14 Gurbax Singh, the uncle of the
deceased who also makes a reference to this demand which he
allegedly came to know from the father of the deceased. This
witness too has not stated before the Police that such a demand
was made by the accused when his statement was recorded by the
Police. Therefore, even this witness has unabashedly tried to
improve his evidence before the court. So far as PW-13 Kulwant
Singh is concerned he too did not have any personal knowledge
of this demand and says in his evidence that he came to know of
this demand through deceased Devinder Kaur herself at Banur in
Rajpura Tehsil when he met her during a chance meeting there.
This witness says that at that point of time PW-8 the brother of
the deceased was also present but PW-8 does not support this
evidence of PW-13. That apart this witness was present at the
time when the dead bodies were brought to the hospital and when
the Police arrived and registered a case but did not volunteer any
statement to the Police. His statement was recorded only on
25.7.1986 nearly 2 months after the incident hence in our opinion
it is not safe to place any reliance on his evidence also. It is of
some importance to note here PW-8 the brother of the deceased
in his evidence does not state anything about this demand for a
share in his father's property. Therefore in our opinion this
allegation of pressurising the deceased into demanding a share in
her father's property, the prosecution has failed to establish.
Hence this circumstance also does not support the prosecution
case.
The next circumstance relied by the trial court is the fact
that these accused persons did not attend the funeral of the
deceased after their bodies were released from the hospital. From
their absence at the time of the funeral, the trial court has drawn
an inference against the appellants which according to the court
indicated the guilty conscience of the appellants. The trial court
herein failed to take note of the fact that in the first information
report lodged with the police by the family of the deceased the
appellants and other members of the family who have since been
acquitted, were accused of murdering the deceased and her
children. A case in this regard was also sought to be registered.
PW-14 who is the maternal uncle of the deceased and also a
retired senior IAS Officer in his evidence stated : "My statement
before the police then was that Devinder Kaur and her two
children had been murdered by the accused by setting fire to
them. This was the information which was given to me that day."
In such a situation when a murder charge is levelled against an
accused, it is hardly possible to expect the accused to be present
at such funeral. Therefore, this circumstance also cannot be taken
as an incriminating circumstance or a circumstance which
corroborates the other evidence led by the prosecution against the
accused.
It is based on these erroneous inferences drawn on unproved
facts and placing reliance on statements of interested witnesses
whose evidence has not stood the test of cross-examination, the
trial court came to a wrong conclusion as to the guilt of the
accused persons. It is to be noted that 3 letters Ex. P-28, DA and
DB which though not very proximate in time clearly show that
there was no demand as has been alleged by the prosecution by
the accused and the contents of the said letter clearly show that
the allegation made after the death of Devinder Kaur of dowry
demand or harassment leading to cruelty is unsubstantiated. For
all these reasons we are of the opinion that the trial court
committed serious error in coming to the conclusion that the
prosecution had established its case against the appellants.
There is no need for us to discuss the reasons given by the
High Court independently because we are in agreement with the
argument of learned counsel for the appellants that there has been
no application of mind by the High Court which is evident from a
perusal of the judgment of the said court. The learned counsel has
taken us through paragraphs after paragraphs of the judgment of
the High Court including the conclusions which, in our opinion,
are nothing but paraphrasing of the judgment of the trial court
without any application of mind whatsoever. So much so even
factual errors committed by the trial court have been faithfully
copied by the High Court e.g. the trial court at one place
erroneously recorded that the deceased Devinder Kaur had given
birth to two female children (See P.19 of the trial court) This
error is also copied by the High Court in its judgment (See Page
56 of the High Court). The High Court failed to notice its legal
responsibility of discussing the evidence independently and
recording its findings on the basis of such independent
assessment of its own, because it is the first court of appeal on
facts. The reasons given by us for rejecting the findings of the
trial court, therefore, should ipso facto apply to reject the finding
of the High Court if the same could be called a finding at all.
For the reasons stated, this appeal succeeds. The judgments
and sentences passed by the courts below are set aside. If the
appellants are on bail, their bail bonds shall stand discharged. If
they are in custody, they shall be released forthwith.
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