Crl.Appeal No.1055-SB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1055-SB of 1998 Date of decision: 6.7.2010 Bhagwan Singh @ Bhama and another ... Appellants versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.A.P.S.Deol, Sr.Advocate, with Ms.Manpreet Kaur, Advocate, for the appellants. Mr.Arshvinder Singh, DAG, Punjab. ... JORA SINGH, J. Bhagwan Singh @ Bhama and Gurjiwan Singh @ Girja preferred this appeal to impugn the judgment of conviction and order of sentence dated 2.12.1998 rendered by Additional Sessions Judge, Bathinda, arising out of FIR No. 24 dated 15.3.1996, under Sections 306/506/354/34 IPC, PS Rampura. By the said judgment, appellant Bhagwan Singh @ Bhama was convicted under Sections 306 and 506 IPC, whereas appellant Gurjiwan Singh @ Girja was convicted under Section 506 IPC only. Bhagwan Singh @ Bhama was sentenced to undergo RI for five years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for one year under Section 306 IPC, and to undergo RI for one year under Section 506 IPC. Gurjiwan Singh @ Girja was sentenced to undergo RI for one year under Section 506 IPC. Prosecution story, in brief, is that SI Balwinder Singh received ruqa (Ex.PC) from Civil Hospital, Rampura, regarding admission of Birpal Crl.Appeal No.1055-SB of 1998 2 Kaur. On receipt of ruqa (Ex.PC), SI Balwinder Singh had gone to Civil Hospital, Rampura. Statement of Birpal Kaur (Ex.PD) was recorded after getting opinion from the doctor regarding fitness of the patient as to whether she was fit to make statement or not. Birpal Kaur reported to the Investigating Officer that about 10 years back, she was married with Bhola Singh and out of this wedlock, she has three children. Bhola Singh was employed by Sukhdev Singh as a driver. 15 days earlier, Bhola Singh had gone to Village Sukhchain along with tractor to level the land. 4 days earlier, Bhagwan Singh @ Bhama of her village had some altercation with her. Matter was reported to the police. Both the parties were summoned to the police station. Before going to police station, Gurjiwan Singh @ Girja had threatened her in the presence of her mother-in-law by saying that she should enter into a compromise. She had gone to the police station and had effected compromise with Bhagwan Singh. On the day of occurrence, she along with her mother-in- law Surjit Kaur was present in her house. In the meantime, Bhagwan Singh and Gurjiwan Singh came to her house and stated that complainant failed to harm them by going to police station. Bhagwan Singh had lifted front portion of his shirt and by exhibiting so, both the accused had threatened her and went away. She cannot tolerate her previous insult and the insult on that day. So, by pouring kerosene, she set herself on fire despite the intervention of her mother-in-law. Her mother-in-law had tried her best to extinguish the fire, but despite that, her entire body was burnt. Raula was raised by her mother-in-law. Then some persons had come to the spot. Bhagwan Singh and Gurjiwan Singh wanted to insult and defame her and she was fed up of them. She was brought to the hospital by Crl.Appeal No.1055-SB of 1998 3 her mother-in-law and Sukhdev Singh, Lambarder. In the hospital, she was treated by the doctor. After recording statement (Ex.PD), same was sent to the concerned police station, on the basis of which, formal FIR was recorded. Birpal Kaur had succumbed to her burn injuries while lying admitted in the hospital. After death, inquest report was prepared by SI Balwinder Singh. After postmortem examination, dead body was handed over to the relatives of the deceased. Investigating Officer had gone to the spot and from the scene of crime, one bottle of kerosene and one match box were recovered. Recovered articles were taken into police possession vide memo (Ex.PE), attested by the witnesses. Some burnt pieces of clothes and one bucket were also recovered from the spot and taken into police possession vide memo (Ex.PF) attested by the witnesses. Rough site plan with its correct marginal notes was prepared. Bhagwan Singh was produced by Harbans Singh on 20.3.1996 before the Investigating Officer. Gurjiwan Singh was also arrested. After completion of investigation, challan was presented in Court. Accused were charged under Sections 306/506/354/34 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined PW1 Dr. Krishan Gopal. He stated that on 15.3.1996 at 10.00 AM, he had medico legally examined Birpal Kaur. 100% burn injuries were noticed. Patient was brought to the hospital by Surjit Kaur at 9.30 AM. Injuries were dangerous to life and probable duration of injuries was within 6 hours. PW2 Surjit Kaur, mother-in-law of the deceased, has supported the prosecution story by saying that in her presence, Bhagwan Singh and Crl.Appeal No.1055-SB of 1998 4 Gurjiwan Singh came to her house. Bhagwan Singh had lifted his shirt from front side by saying that both of them should be ashamed of as nothing has happened to them. Both the accused had abused them. Birpal Kaur had set herself on fire by pouring kerosene because she failed to bear the insult. She tried to extinguish the fire. Raula was raised. Despite her best effort to extinguish the fire, Birpal Kaur had received sufficient burn injuries. PW3 SI Balwinder Singh had partly investigated the case. PW4 Dr.S.S.Oberoi had conducted postmortem examination on the dead body of Birpal Kaur. He stated that body was of moderately built female having epidermal to dermo epidermal burns all over the body except sols of feet, premium and lower half of abdomen. Burns were ante mortem in nature. All the abdominal and thoracic organs were congested. Cause of death was shock due to burns, which were sufficient to cause death in the ordinary course of nature. PW5 Constable Harinder Singh tendered his affidavit (Ex.PT). After close of prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that case is false. Opportunity was given to lead defence but no defence was led. After hearing learned Public Prosecutor for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. I have heard learned counsel for the appellants and learned State counsel and gone through the evidence on the file. Learned counsel for the appellants argued that parties have Crl.Appeal No.1055-SB of 1998 5 effected compromise and this fact is clear from copy of order dated 10.12.2003 (Annexure P-1) and copy of judgment dated 29.1.2002 (Annexure P-2), which were produced on file by filing Crl.Misc. No.50939 of 2001 in Crl.Appeal No.474-SB of 2001. Gurjiwan Singh was convicted and sentenced under Section 506 IPC. Under Section 320 Cr.P.C., offence punishable under Section 506 IPC is compoundable with the consent of person intimidated. After the death of person intimidated, legal representatives of the deceased are competent to compound the offence. Requested that as per compromise, Rs.1,50,000/- was paid to the representatives of the deceased and that is why execution application pending before Civil Judge (Junior Division), Phul, was got dismissed in view of compromise before Lok Adalat, therefore, Gurjiwan Singh may be acquitted. Further argued that judgment of lower court is not challenged on the point of conviction and requested that lenient view may be taken because second appellant Bhagwan Singh has already undergone six months. Occurrence was in the month of March, 1996. At that time, Bhagwan Singh was 32 years' old. After commission of crime, he has not committed any such crime. He is the first offender and belongs to a poor family. Requested that sentence of Bhagwan Singh may be reduced to already undergone and fine be increased. Learned counsel for the complainant states that no objection if lenient view is taken because parties have effected compromise. In view of compromise, legal representatives of deceased have received payment and execution application was dismissed. Learned State counsel argued that offence punishable under Crl.Appeal No.1055-SB of 1998 6 Section 506 IPC is compoundable but co-accused Bhagwan Singh was convicted under Sections 306 and 506 IPC. Offence punishable under Section 306 IPC is not compoundable. No objection if lenient view is taken provided fine is increased. Birpal Kaur (deceased) was married with Bhola Singh about 10 years earlier to the present occurrence and from this wedlock, she has three children. Bhola Singh was employed as tractor driver by Sukhdev Singh. 15 days earlier to the occurrence, he had gone to Village Sukhchain Singh to level the land. Few days earlier to the occurrence, Bhagwan Singh had some altercation with Birpal Kaur. Matter was reported to the police and before police, there was a compromise. Before going to police station, Gurjiwan Singh had pressurized Birpal Kaur to effect compromise, failing which, to face the consequences. After compromise, Birpal Kaur along with her mother-in-law was present in the house. Bhagwan Singh and Gurjiwan Singh had gone to the house of Birpal Kaur and threatened her that complainant party failed to harm them by going to police Station. Bhagwan Singh had lifted front portion of his shirt and threatened the complainant party. After that, both the accused came out of the house of Birpal Kaur. Birpal Kaur failed to tolerate insult. She had set herself on fire by pouring kerosene. After the incident, Birpal Kaur was shifted to the hospital, where she was medico legally examined. Doctor had sent ruqa to the concerned police station and on receipt of ruqa, Investigating Officer had gone to Civil Hospital, Rampura, and after getting opinion from the doctor regarding fitness of patient to make statement, statement of Birpal Kaur (Ex.PD) was Crl.Appeal No.1055-SB of 1998 7 recorded. Case is based on dying declaration (Ex.PD), but question is whether statement (Ex.PD) inspires confidence or not. Dr. Krishan Gopal while appearing in Court stated that after admission of Birpal Kaur, ruqa was sent to police station and in his presence, statement of Birpal Kaur was recorded. Doctor had no enmity with the appellants. He categorically stated that Birpal Kaur remained mentally fit throughout her statement. So, nothing to disbelieve Dr. Krishan Gopal. PW2 Surjit Kaur is the mother-in-law of the deceased, and stated on oath that Birpal Kaur had some altercation with the appellants. Matter was reported to the police. Then before going to the police station, Birpal Kaur was threatened by Gurjiwan Singh to effect compromise. In view of the threat, they had effected compromise. On the day of compromise, she alongwith Birpal Kaur was present in the house, then both the appellants came and abused them by saying that they failed to harm them by going to police station. Private parts were exhibited by lifting front portion of his shirt by Bhagwan Singh. Birpal Kaur failed to bear the insult and by pouring kerosene, she (Birpal Kaur) had set herself on fire. She made effort to extinguish fire. Raula was raised. Number of persons came on the spot. Then Birpal Kaur was shifted to the hospital. PW3 SI Balwinder Singh is the Investigating Officer, and stated that on receipt of ruqa, he had gone to Civil Hospital, Rampura, and after getting opinion from the doctor regarding fitness of patient to make statement, had recorded statement of Birpal Kaur (Ex.PD). Investigating Officer was not inimical towards the appellants. So, there was no idea to Crl.Appeal No.1055-SB of 1998 8 concoct the story. PW4 Dr. S.S.Oberoi had conducted postmortem examination on the dead body of Birpal Kaur. 100% burn injuries were noticed. Burn injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. Dying declaration is a weak type of evidence, but if dying declaration finds corroboration from some independent evidence, then on the basis of dying declaration, conviction can be based. In the instant case, before present occurrence, there was some altercation amongst the parties. Matter was reported to the police and before police, there was a compromise. After compromise, appellants had gone to the house of deceased. Deceased was insulted by showing private parts by lifting front portion of his shirt by Bhagwan Singh. Only ladies were present in the house and if private parts are shown by lifting front portion of the shirt, then definitely ladies are to feel insulted. Before compromise when lady was pressurized to effect compromise otherwise to face consequences and as per threat at the hands of the accused, there was a compromise, and after compromise, if the ladies were again insulted by showing private parts, then naturally ladies were to feel insulted. Action of the appellants abetted the deceased to commit suicide. Evidence on the file was rightly scrutinized by the trial Court. So, judgment of trial Court on the point of conviction is upheld. After conviction, appeal was preferred but during the pendency of the appeal, there was a compromise amongst the parties. Legal representatives of the deceased had filed civil suit to recover compensation qua the death of Birpal Kaur and the suit was decreed. Appellants were directed to pay Rs.1,50,000/- as compensation on the basis of decree. Crl.Appeal No.1055-SB of 1998 9 Execution application was filed by the legal representatives of the deceased. When execution application was pending, then there was a compromise amongst the parties before Lok Adalat. As per compromise before Lok Adalat, execution application was got dismissed, as fully satisfied, and this fact is clear from the order of Lok Adalat (Annexure P-2). Annexure A-1 is the copy of affidavit of Surjit Kaur, mother-in-law of the deceased. Gurjiwan Singh was convicted under Section 506 IPC. Offence punishable under Section 506 IPC is compoundable. Under Section 320 Cr.P.C. offence is to be compounded with the consent of person intimidated. Under Section 320 (4)(b) Cr.P.C., when the person, who was competent to compound the offence is dead, then his legal representatives with the consent of Court are competent to compound such offence. After commission of present crime, appellants have not committed any such crime. They are the first offenders. Occurrence was in the year 1996. Gurjiwan Singh has already undergone four months and one day out of actual sentence of one year. Gurjiwan Singh was serving in Jail Department and he is to lose his job if conviction is maintained. So, in view of the compromise with legal representatives of deceased Birpal Kaur, as per Section 320(4)(b) Cr.P.C., permission to compound offence punishable under Section 506 IPC is granted because after compromise, parties are to reside peacefully and no further chance of litigation. Otherwise, there are chances of further litigation because complainant party belongs to a poor family. As per compromise, Gurjiwan Singh is acquitted of the charge levelled against him punishable under Section 506 IPC. Appeal qua him is allowed. Crl.Appeal No.1055-SB of 1998 10 Bhagwan Singh was 32 years' old at the time of occurrence in the year 1996. He is the first offender and belongs to a poor family. After the present occurrence, he has not committed any such type of act. As per custody certificate, Bhagwan Singh has already undergone six months out of actual sentence. He is to become hard criminal if again sent to jail to undergo remaining portion of sentence as per order of trial Court. In 2004 (1) RCR (Crl.) 697, Mohan Singh and another versus State of Punjab, conviction was under Section 306 IPC. Suicide by a woman. Father-in-law and mother-in-law were the accused. Father-in-law already died. Mother-in-law was about 73-74 years' old. Incident was 13 years old. Sentence of mother-in-law was reduced to already undergone (one month). In the present case, appellant has already undergone six months out of actual sentence. Occurrence is about 14 years' old. At present, appellant is near about 46 years' old, having three children to support. In view of all discussed above, I am of the opinion that ends of justice would be fully met if lenient view is taken. Hence, sentence of Bhagwan Sikngh is reduced to already undergone (six months). Fine enhanced. Bhagwan Singh is directed to deposit Rs.10,000/- more as compensation within two months before the trial Court, payable to Bhola Singh, husband of deceased Birpal Kaur. For the reasons recorded above, appeal qua Bhagwan Singh is dismissed with modification on the point of sentence. 6.7.2010 ( JORA SINGH ) pk JUDGE