KANWALJIT SINGH AHLUWALIA, J. (ORAL)

Hardeep Kaur consumed Aluminium Phosphide, a pesticide, in her matrimonial home and died on 18th June, 2000 at about 5.00 p.m in the area of village Bathoikalan. Hardeep Kaur was married with Didar Singh son of the appellant two years and ten months before the date of occurrence. For the death of Hardeep Kaur, the present appellant, along with her husband Mohinder Singh, son Didar Singh and three daughters namely, Sarabjit Kaur, Paramjit Kaur and Nirmal Kaur, was tried by the Court of Additional Sessions Judge (Adhoc), Patiala in a case FIR No. 468 dated 19.06.2000 registered at Police Station Sadar Patiala under Section 304-B IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as, ‘the Act’).

The trial Court, vide its judgment dated 3rd October, 2002, acquitted all the co-accused of the appellant including husband of the deceased, but held the appellant guilty of an offence punishable under Section 304-B IPC and Section 4 of the Act. Vide a separate order of even date, the trial Court sentenced the appellant to undergo rigorous imprisonment for a period of seven years under Section 304-B IPC and to undergo rigorous imprisonment for a period of two years under Section 4 of the Act. The substantive sentences were ordered to run concurrently.

In the present appeal, conviction recorded and the sentence awarded to the appellant by the trial Court is under challenge.

Mr. Ajay Pal Singh, Advocate appearing on behalf of the appellant, has submitted that the prosecution evidence could not be dissected and once the co-accused of the appellant have been acquitted, the appellant cannot be convicted by the trial Court on the same evidence. He has further submitted that the trial Court has convicted the appellant on the assumption that all mothers-in-law are normally responsible for the unnatural death of their daughters-in-law. Learned counsel has stated that such a presumption is not permissible in law.

To appreciate the arguments advanced by counsel for the appellant, it will be necessary to notice contents of the FIR, the evidence recorded and the findings returned by the trial Court.

In the present case, FIR Ex.PW7.B was lodged by Baljit Kaur. She made a statement Ex.PB to SI Anil Kumar Sharma PW-7, who was then posted as In-charge of Police Post Dakala, Police Station Sadar Patiala. As per the testimony of SI Anil Kumar Sharma PW-7, on 19 June, 2000, he along with companion police officials was present in connection with checking and patrol duty at T-point of Kurhali Road, Bathoi, where Baljit Kaur PW-2 met him and got recorded her statement Ex.PB, on the basis of which formal FIR Ex.PW7.B was registered.

In her statement Ex.PB, Baljit Kaur stated that Hardeep Kaur was daughter of her sister. She had brought her up and had married her about two years ago with Didar Singh son of Mohinder Singh according to customary rites. Didar Singh was posted in Army. In the marriage, the complainant had given dowry articles according to her capacity, including a scooter make Bajaj Chetak. Despite that, Hardeep Kaur was harassed by her mother-in-law Raj Kaur, sisters-in-law (sisters of her husband) namely Nirmal Kaur wife of Balkar Singh, Paramjit Kaur wife of Joginder Singh and Sarabjit Kaur, father-in-law Mohinder Singh and husband Didar Singh. All these accused were maltreating her for bringing less dowry. They were saying that in the marriage, Bullet motorcycle was not given. They were also saying that gas connection and generator set be also given in the marriage, as in the village electric supply is erratic. About 1 ½ years ago, on the asking of her niece, the complainant had given a gas cylinder and a stove. About one year before the occurrence, a generator set was also given. Gas cylinder and the gas stove were purchased for Rs. 3,500/- and the generator set for Rs. 10,000/-. Despite giving all these articles, the accused were demanding a Bullet motorcycle. This fact was disclosed by the deceased to the complainant on telephone. About three months before the occurrence, Hardeep Kaur came to meet the complainant and then in the presence of Baldev Singh husband of the complainant and Labh Singh, she stated that all the above said accused have told that in case she would not bring a Bullet motorcycle, then she would be finished. Hardeep Kaur was made to understand by the complainant, her husband Baldev Singh and Labh Singh, and was sent back to her matrimonial home. She was told that they were having financial constraint, therefore, they will purchase the Bullet motorcycle later-on. Hardeep Kaur stayed with the complainant for about one month and thereafter, she left for her matrimonial home. Husband of the complainant told sisters-in-law, mother-in-law and father-inlaw of Hardeep Kaur that the motorcycle will be given shortly. On 17 June, 2000, Didar Singh made a telephonic call to Dirbha and stated that he has come on leave and Hardeep Kaur be sent back to her matrimonial home. Therefore, Baldev Singh husband of the complainant left Hardeep Kaur at Bathoi Kalan. On 18 June, 2000 at about 5.00 p.m Didar Singh informed that Hardeep Kaur has consumed tablets and therefore, they should reach immediately. The complainant, along with her family members and relatives, reached there and found that the dead body of Hardeep Kaur was lying in the Verandah. Present appellant told that Hardeep Kaur had consumed some poisonous substance. It was stated that as Bullet motorcycle was not given therefore, she was harassed and she committed suicide.

Complainant Baljit Kaur appeared in the trial Court on 20 April, 2001 as PW-2 and reiterated as to what was stated in the FIR. No specific allegation has been leveled in her statement against the appellant. However, there is another aspect of this case, which is required to be noticed by this Court. On 20 April, 2001, when complainant Baljit Kaur was examined as PW-2, an application under Section 319 Cr.P.C was moved by the prosecution to summon Nirmal Kaur, Paramjit Kaur and Didar Singh, who were earlier placed in column No. 2. The application was allowed on 20 April, 2001 and accused Nirmal Kaur, Paramjit Kaur and Didar Singh were ordered to be summoned to face trial. The order dated 20 April, 2001 passed by the trial Court reads as under:

“One PW is present and examined. No other evidence of the prosecution is present.

2. An application has been moved on behalf of the prosecution to summon Nirmal Kaur wife of Balkar Singh, Paramjit Kaur wife of Joginder Singh and Didar Singh son of Mohinder Singh in this case as accused because a specific participation in the commission of offence has been attributed to them by the PW2. Deposition of PW2 Baljit Kaur has been perused and it has been found that in her chief-examination she has stated that Raj Kaur mother-in-law, Mohinder Singh father-in-law, Sarabjit Kaur, Nirmal Kaur and Paramjit Kaur sisters-in-law and Didar Singh husband of deceased Hardeep Kaur used to scoff and maltreat her on account of insufficient dowry and they demanded bullet motorcycle, generator set, gas connection etc. It has also come in her statement that on account of non-fulfillment of their demands the aforesaid persons subject Hardeep Kaur to cruelty. In these circumstances the application is allowed and Nirmal Kaur, Paramjit Kaur and Didar Singh are ordered to be summoned to face their trial. Non-bailable warrants of arrest of Paramjit Kaur, Nirmal Kaur and Didar Singh be issued for 25.5.2001”

Thereafter, fresh charges were framed against the appellant on 12 June, 2001 and the case was fixed for prosecution evidence on 7 September, 2001. After the fresh charges were framed, complainant Baljit Kaur and her husband Baldev Singh had not appeared as prosecution witnesses. On 20 September, 2002, the trial Court passed the following order:

“None of the PWs were present when the case was listed for remaining PWs for 16.9.2002 and the case was adjourned for today. PWs namely Baljit Kaur & Baldev Singh are present in Court but they slipped for reasons best known to them. Neither the counsel for the complainant nor the defence counsel is available. They were called several times. It is nearing 1.00 p.m PW Baljit Kaur complainant was earlier examined on 20.4.01 The evidence of both these PWs namely Baljit Kaur & Baldev Singh is closed by order. Remaining PWs be summoned for 3.10.2002 for prosecution evidence.”

It is a well settled law that any statement made before Section 319 Cr.P.C was invoked and the charges were framed against the appellant, is to be treated as a previous statement and is not a substantive piece of evidence. Hence, the statement made by Baljit Kaur PW-2, being a previous statement, cannot be read. After the fresh charges were framed against the appellant, no prosecution witness has appeared against her to state demand of dowry and harassment caused by the accused, thus, no incriminating evidence is coming forth. It will be pertinent to notice the statement of the appellant recorded under Section 313 Cr.P.C Question No. 1 in this statement stated that on 18 June, 2000 at about 5.00 p.m the accused committed dowry death of Hardeep Kaur after accused hatched a conspiracy. The answer to this question was that it is incorrect. Second question put to the appellant was that on the basis of a statement made by Baljit Kaur complainant, formal FIR Ex.PW7.B was registered. Third question was that after registration of the case, post-mortem was got conducted. The fourth question stated that after the post-mortem was conducted, clothes and other articles of the deceased were taken into possession by the police. Question No. 5 stated that the accused were arrested on 20 June, 2000. The sixth question was that after the postmortem, inquest and report of the Chemical Examiner, the doctor had opined the cause of death as Aluminium Phosphide poisoning. The seventh question stated that Kuldip Singh goldsmith had proved the receipts regarding preparation of gold ornaments. The eighth question was that the affidavit filed by HC Karnail Singh was a part of the evidence against appellant. Ninth question stated that Chanan Singh Draftsman had prepared the scaled site plan, other witness Hoshiar Singh proved the receipt regarding sale of generator set, Subhash Sharma proved bill of the scooter and Nazir Khan Photographer proved the photographs. The next question stated that personal search of the accused was carried and the dowry articles were recovered. No question was put to the accused that it has come in the evidence that she was ill-treating and harassing the deceased. Since after summoning of the co-accused under Section 319 Cr.P.C, complainant Baljit Kaur and her husband Baldev Singh had not appeared, no incriminating evidence has surfaced against the appellant. Therefore, the same could not be put to her in her statement recorded under Section 313 Cr.P.C Furthermore, the trial Court while acquitting the co-accused of the appellant, observed as under:

“18. With regard to the implication of Didar Singh accused the accusation is that he was demanding the Bullet motorcycle and other articles as dowry articles which he has denied. However, some articles like Gas Connection and Generator were given. As per his plea he was posted as Sephoi at Rajori in J&K during the days of occurrence. He was not shown as accused at the presentation of challan. His false implication cannot be ruled out. With regard to the implication of Paramjit Kaur and Nirmal Kaur they are grown up and married women. Much earlier to the marriage of their younger brother Didar Singh they are settled at their in-laws house at far of places namely village Didhan Tehsil Samana and Udaypur in Haryana. Their false implication cannot be ruled out. With regard to the implication of Mohinder Singh accused, he is somewhat advanced in years of about 60 years of age. He has given the impression of a person with simple outlook. His false implication cannot be ruled out. With regard to the implication of Sarabjit Kaur aged hardly less than 18 years of age at the time of occurrence and was a student. Her false implication also cannot be ruled out. Having proceeded in this manner the false implication of these five accused cannot be ruled out. At least, I am inclined to grant benefit of doubt to them. This does not mean that I have doubted the prosecution story. It is as a matter of abundant caution that benefit of doubt is extended to them.”

At the cost of repetition, it is stated that at the time when fresh charges were framed against the appellant, thereafter no witness has appeared against her. Yet, even if the FIR and the statement made by the complainant before summoning of the co-accused and framing of fresh charges, is considered, there is no specific allegation of harassment or cruelty caused by the appellant. Allegations are rather omnibus, vague and general. Thus, case of the appellant cannot be distinguished from that of her other co-accused. It has been recently held by Hon'ble the Apex Court in ‘Mankamma v. State Of Kerala’ 2010 (1) RCR (Criminal) 227 that the mother-in-law should not be made a scapegoat relying upon the age old concept of bickerings between the mother-in-law and daughter-in-law. The cruel treatment meted by the mother-in-law is to be proved. This case is a classic example, where the observations made by Hon'ble the Apex Court in Mankamma's case (supra) shall apply on all force. The trial Court has convicted the appellant considering only the fact that she is a mother-in-law, whereas, the prosecution has failed to prove any evidence against her. In these circumstances, this Court has no other option but to accept the present appeal.

Hence, the present appeal is allowed. Conviction recorded and the sentence awarded to the appellant are set aside and she is acquitted of the charges.