Crl.Appeal No.536-DB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.536-DB of 2001 Date of decision: 15.1.2010 Baldev Singh @ Ghugga and another ... Appellants versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mrs.Baljit Kaur Mann, Advocate, for the appellants. Mr. Gurveen H.Singh, Addl.AG, Punjab. ... JORA SINGH, J. Through the instant appeal, Baldev Singh @ Ghugga and Balbir Kaur have impugned the judgment dated 21.9.2001 rendered by Sessions Judge, Jalandhar, in Sessions Case No.32/99 arising from FIR No. 105 dated 5.6.1999 under Sections 304-B/498-A/34IPC, PS Shahkot. By this judgment, appellants were convicted under Sections 302/316/34 IPC and were sentenced to undergo imprisonment for life and to pay fine of Rs.5000/-, and in default of payment of fine, to further undergo RI for six months each under Sections 302/34 IPC, and to undergo RI for three years and to pay fine of Rs.1000/- and in default of payment of fine, to further undergo RI for two months each under Sections 316/34 IPC, whereas Gurdeep Kaur @ Deepo was acquitted of the charge levelled against her. Against acquittal of Gurdeep Kaur @ Deepo, no appeal has Crl.Appeal No.536-DB of 2001 2 been preferred by the State. Prosecution story, in brief, is that on 1.6.1999, chit (Ex.PD) was received from PHC, Shahkot, to the effect that Baljit Kaur was brought to PHC, Shahkot, with burn injuries and she was referred to Civil Hospital, Nakodar. On receipt of the chit, SI Mohan Singh had gone to PHC, Shahkot, but he did not find Baljit Kaur there in the hospital. After that, SI Mohan Singh had gone to Civil Hospital, Nakodar, and moved application (Ex.PX). Then the doctor reported that Baljit Kaur was not admitted in the hospital. On 5.6.1999, SI Mohan Singh came to know that Baljit Kaur was lying admitted in Civil Hospital, Jalandhar. Then he along with police party had gone to Civil Hospital, Jalandhar, where Baljit Kaur was found lying admitted. Judicial Magistrate was contacted to record the statement of Baljit Kaur. Application (Ex.PJ) was moved. CJM, Jalandhar, deputed Duty Magistrate to visit the hospital and record the statement of Baljit Kaur. Shri K.K.Goel, JMIC, Jalandhar, had gone to Civil Hospital, Jalandhar, and recorded statement (Ex.PL) of Baljit Kaur. In her statement, she stated that at the time of her marriage with Baldev Singh, her parents had given dowry. But, Baldev Singh, Deepo and Balbir Kaur had been harassing her for bringing more dowry and were asking her to bring fridge, scooter and coloured television from her parents. They had even given her beating several times. On 1.6.99 at about 11.00 in the morning, she came after taking a bath when her husband Baldev Singh and sister-in-law Balbir Kaur were lying together on the same cot. They had illicit relations. On her seeing them lying together, they got enraged and caught hold of her. Her mother-in-law Deepo also came there in the room itself. Her husband Crl.Appeal No.536-DB of 2001 3 Baldev Singh poured kerosene oil on her and Balbir Kaur and Deepo lit fire with match stick. On catching fire, she ran outside the house raising shrieks and then became unconscious. She has been set ablaze by Baldev Singh, Deepo and Balbir Kaur collectively. Action be taken against them. After making endorsement, statement was sent to the Police Station, on the basis of which, formal FIR (Ex.PY/1) was recorded. Initially, FIR was recorded under Sections 307/498-A/34 IPC. SI Mohan Singh along with party visited the spot. After inspecting the place of occurrence, rough site plan with correct marginal notes was prepared. One plastic can of kerosene oil and a match stick were noticed and the same were taken into police possession vide memo (Ex.PG), attested by the witnesses. On 11.6.1999, Baljit Kaur had succumbed to her injuries. On receipt of chit (Ex.PBB), DDR No.40 dated 11.6.1999 was recorded. Offence under Section 302 IPC was added. SI Mohan Singh along with party had gone to Civil Hospital, Jalandhar. Inquest report was prepared. Statements of witnesses were recorded. Dead body of Baljit Kaur was handed over to the police officials for postmortem examination. On 16.6.1999, Baldev Singh and Balbir Kaur were arrested. As per enquiry by Harjit Singh, DSP, Shahkot, Gurdeep Kaur @ Deepo was found to be innocent. She was not challaned. Vide order dated 20.9.1999 by JMIC, Nakodar, case was committed to the Court of Session for trial. After recording statement of Nahar Singh, father of Baljit Kaur, Gurdeep Kaur @ Deepo was directed to face trial along with co-accused. After appearance of Gurdeep Kaur @ Deepo, accused were charged under Crl.Appeal No.536-DB of 2001 4 Sections 302/304-B/498-A/316/34 IPC, to which they pleaded not guilty and claimed trial. Prosecution examined PW1 Dr.Surveshwar Chander Sood, who had conducted postmortem examination on the dead body of Baljit Kaur on 11.6.1999 at 1.30 PM and observed as under:- “Approximately 90% body was burnt. Burns with grade 1 to grade 3 were present on different parts of the body. Area of face hair, feet neck was spared. Thorax: in burns and ribs healthy. Pleurae right and left lung were congested. Larynx and trachea were healthy. Heart was healthy and both chambers were full of blood. Bladder was empty and healthy. Other organs were healthy. Organ of generation:- External parts were burnt, internal:- Upon dissection of uterus showed menstrual blood. The cause of death in this case in my opinion was due to shock arising out of 90% burns which were sufficient to cause death in the ordinary course of nature. The burns were ante mortem in nature. The probable time between burns and death was approximately ten days and between death and postmortem was eight hours.” PW2 Dr. Davinder Kumar, MO, PHC, Shahkot, stated that on 1.6.1999, Baljit Kaur was brought to PHC, Shahkot, with 70% burns. She was in serious condition. Patient was referred to Civil Hospital, Nakodar. Ruqa (Ex.PD) was sent to the Police Station, Shahkot, at 1.05 PM. PW3 Dr. Gurpal Singh stated that on 1.6.1999 at 3.20 PM, Baljit Kaur was admitted in the Emergency Ward of Civil Hospital, Crl.Appeal No.536-DB of 2001 5 Jalandhar, with 85% burns. Baljit Kaur had expired on 11.6.1999 at 12.20 AM. On 4.6.1999, there was premature delivery of dead male child at 9.30 AM. Patient was attended by Dr. Kamaljit. Entry (Ex.PE/1) to this effect was made in the bed head ticket. PW7 Dr. Kamaljit stated that Baljit Kaur was admitted in Civil Hospital, Jalandhar, and was under her treatment on 4.6.1999. On that day, patient had expelled a pre-mature dead male fetus. Entry in this regard was made in her bed head ticket. PW16 Dr. Parveen Kumar stated that on 5.6.1999, Baljit Kaur was lying admitted in the hospital. Judicial Magistrate came to the hospital to record her dying declaration. Application (Ex.PK) was moved to enquire about the fitness of Baljit Kaur. Then he made endorsement (Ex.PK/1) and the patient was declared fit to make statement. Dying declaration of Baljit Kaur was recorded by the Judicial Magistrate. Baljit Kaur remained fit and conscious throughout her statement. After completion of statement, he had made endorsement (Ex.PL/1) to the effect that patient remained fit and conscious throughout the period of recording her statement. PW8 Sh. K.K.Goel, JMIC, Jalandhar, stated that on 5.6.1999, as per request of the police, he had gone to Civil Hospital, Jalandhar. Opinion of the doctor was obtained to the effect as to whether Baljit Kaur was fit to make statement. The doctor declared her fit to make statement. After that, statement of Baljit Kaur was recorded. Statement was read over and explained to Baljit Kaur, who put her right thumb impression on the same in token of its correctness. Again opinion of the doctor was obtained and the doctor reported that the patient remained fit and conscious throughout the period of recording her statement. Statement was made Crl.Appeal No.536-DB of 2001 6 voluntarily by Baljit Kaur. Except the doctor, no one was present when statement of Baljit Kaur was recorded. PW4 Dalip Singh, Draftsman, had prepared scaled site plan (Ex.PF). PW5 HC Surinder Singh stated that on 5.6.1999, from the place of occurrence, one plastic can and one match box were taken into police possession by SI Mohan Singh in his presence. Memo (Ex.PG) was attested by him. PW6 Constable Sukhwinder Singh tendered his affidavit (Ex.PH). PW9 Constable Sukhbir Singh tendered his affidavit (Ex.PN). PW10 Sadhu Singh r/o Kotli Kamboian, Tehsil Shahkot, stated that Nahar Singh is from his village. Daughter of Nahar Singh was married with Satnam Singh. After the death of Satnam Singh, Baljit Kaur came to the house of her parents. Then Baljit Kaur was again married with Baldev Singh. Nahar Singh did not complain at any stage that Baljit Kaur was ever harassed by her in-laws for want of dowry. Sadhu Singh was declared hostile and was cross-examined by the Public Prosecutor for the State. PW11 Satnam Singh stated that while coming from his fields at about 11.00 AM, he was near the house of Baldev Singh. Baljit Kaur was found burnt. Many persons were present there and they requested him to shift Baljit Kaur to the hospital. Satnam Singh was declared hostile. PW12 Jarnail Singh stated that earlier Baljit Kaur was married with Satnam Singh, but after his death, Baljit Kaur was again married with Baldev Singh in the year 1998, Nahar Singh, father of Baljit Kaur, did not disclose at any stage that Baljit Kaur was being harassed by her in-laws. Crl.Appeal No.536-DB of 2001 7 Jarnail Singh was also declared hostile. PW13 Nahar Singh is the father of Baljit Kaur (deceased). He stated that Baljit Kaur, aged about 24 years, was earlier married with Satnam Singh and from this wedlock, she had a daughter. After the death of Satnam Singh, Baljit Kaur came to her parental house along with the daughter. In the year 1998, Baljit Kaur was again married with Baldev Singh, adopted son of Gurdeep Kaur. He had given dowry as per his capacity. Nahar Singh was also declared hostile, when he failed to support the prosecution story. PW14 Kashmir Kaur is the mother of Baljit Kaur and stated that after the death of first husband of Baljit Kaur, namely, Satnam Singh, Baljit Kaur was again married with Baldev Singh. Sufficient dowry was given at the time of marriage. Kashmir Kaur was also declared hostile, when she failed to support prosecution story. PW15 SI Mohan Singh is the Investigating Officer. After close of prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. The accused denied all the prosecution allegations and claimed to be innocent. Defence version of Baldev Singh was that:- “I am innocent and have been falsely implicated in the present case. I was living happily with my wife Baljit Kaur. I never demanded anything from her or from her parents. I never maltreated her. On the day of occurrence, my wife received burn injuries accidentally while preparing tea on stove. I took her to the hospital and informed my in-laws. My in-laws came to civil hospital on 1.6.1999 and enquired from Baljit Kaur as Crl.Appeal No.536-DB of 2001 8 to how she had received burn injuries. Baljit Kaur told them that she had got burns accidentally while preparing tea on the stove. Baljit Kaur made simple statement to the police on 1.6.99. Later on, Baljit Kaur was tutored by the police and villagers and she made statement against us. I and my wife were living separately from my mother and sister. Gurdip Kaur, my mother, was found innocent during investigation. My sister Balbir Kaur is still unmarried.” Defence version of Gurdeep Kaur @ Deepo is that she is innocent and has been implicated in this case. Her daughter Balbir Kaur is still unmarried. She along with her daughter is residing separately from Baldev Singh and his wife Baljit Kaur. Defence version of Balbir Kaur is to the effect that she is unmarried. She is residing separately with her mother. In defence, DW1 H.S.Brar, DSP, Shahkot, stated that in view of the application moved by Baldev Singh, after investigation, Gurdeep Kaur @ Deepo was found innocent. DW2 Joga Singh stated that on 1.6.1999, Gurdeep Kaur @ Deepo was in the house of Jagir Singh, r/o Village Kalewala. One month before the present occurrence, Gurdeep Kaur came to her parental house. After hearing learned PP for the State, defence counsel for the appellants-accused and from the perusal of evidence on the file, appellants Baldev Singh @ Ghugga and Balbir Kaur were convicted and sentenced as stated above, whereas Gurdeep Kaur @ Deepo was acquitted of the charge levelled against her. We have heard learned counsel for the parties and perused the Crl.Appeal No.536-DB of 2001 9 record. Learned counsel for the appellants argued that there is a delay in lodging the FIR. Delay was not fully explained and is fatal. Alleged dying declaration recorded by the JMIC is without any evidentiary value because the deceased was tutored by her parents. No corroboration, particularly when Sadhu Singh, Satnam Singh, Jarnail Singh, Nahar Singh and Kashmir Kaur did not support the prosecution story. There was no motive to commit the crime. Deceased along with her husband was residing separately, whereas Balbir Kaur and Gurdeep Kaur @ Deepo were residing separately. No evidence on the file that before the present occurrence, the appellants ever demanded dowry or harassed the deceased for want of dowry. Baldev Singh is the adopted son of Gurdeep Kaur. Real mother of Baldev Singh is the sister of Gurdeep Kaur. Balbir Kaur is the daughter of Gurdeep Kaur. Baldev Singh is the cousin brother of Balbir Kaur. No question of illicit relations of Baldev Singh with Balbir Kaur. Occurrence was on 1.6.1999, whereas dying declaration was recorded on 5.6.1999. Deceased was attended by different doctors, but no doctor opined that smell of kerosene oil was noticed. Recovery of plastic can and match box was on 5.6.1999. If the appellants had committed the crime, then there was no idea to keep the can and match box in the same position. According to the story, kerosene was poured by Baldev Singh. Balbir Kaur and Gurdeep Kaur @ Deepo had let the fire with match stick. 1/3rd of the dying declaration was found to be not genuine one and that is why Gurdeep Kaur @ Deepo was acquitted. Allegation of the prosecution that Baljit Kaur was set on fire for want of dowry was also found to be incorrect. That is why, the appellants were not convicted under Sections 304-B/498-A IPC. Either the dying Crl.Appeal No.536-DB of 2001 10 declaration is to be accepted or rejected. If partly, dying declaration is found to be not genuine one, then entire story is to be brushed aside. When two versions are possible, then the version favouring to the accused is to be accepted. Without corroboration, dying declaration being weak type of evidence is not safe for conviction of the appellants. Learned counsel for the appellants placed reliance on (i) Smt. Madhu Bala vs. State (Delhi Administration), 1990 Crl.L.J. 790, (ii) Uka Ram vs. State of Rajasthan, 2001(2) AICLR 308 and (iii) Mohan Lal vs. State of Haryana, 2007(2) RCR (Crl.) 88. Learned State counsel argued that there is no delay in lodging the FIR. According to defence version, deceased had caught fire accidentally, but no one had witnessed the occurrence. The appellants are not right to state that the deceased caught fire accidentally. Statement of Baldev Singh under Section 313 Cr.P.C. is to the effect that Baljit Kaur caught fire accidentally while preparing tea and he had shifted her to the hospital, whereas DW2 Joga Singh stated that one month earlier to the occurrence, Gurdeep Kaur @ Deepo had gone to her parental house. That means, Gurdeep Kaur @ Deepo was not present at the spot. Allegation of Balbir Kaur and Gurdeep Kaur is that they were residing separately from Baldev Singh. PW11 Satnam Singh stated that on the day of occurrence, he was present near the house of Baldev Singh, then Baljit Kaur was found burnt. Number of persons were present there and they requested him to shift Baljit Kaur to the hospital, but record is to the effect that on 1.6.1999, after occurrence, Baljit Kaur was shifted to PHC, Shahkot. The doctor had sent ruqa at 1.05 PM to the Police Station. Patient was referred to Civil Hospital, Nakodar, but keeping in view the condition of the patient, she was Crl.Appeal No.536-DB of 2001 11 brought to Civil Hospital, Jalandhar. Investigating Officer as per ruqa, had gone to PHC, Shahkot, and then Civil Hospital, Nakodar, but the patient was not found admitted in Civil Hospital, Nakodar. Police party and parents of the deceased were in the hospital. In case, deceased caught fire accidentally, then Baldev Singh or Satnam Singh should have reported the matter to the police. There was no idea to remain silent. Parents of the deceased did not report the matter to the police because they had not seen the occurrence. When police party came to the hospital on 5.6.1999, then after contacting the Judicial Magistrate, dying declaration of Baljit Kaur was got recorded. If deceased was tutored or parents of the deceased were to implicate the appellants-accused, then they could easily contact the police. Parents of Baljit Kaur did not inform the police upto 5.6.1999 because they were not intending to implicate the appellants. The JMIC was not inimical towards the appellants. So nothing to disbelieve the JMIC. Occurrence is an admitted fact. Only question is whether the deceased caught fire accidentally or was set on fire, as per prosecution story. Father of the deceased was produced before the Magistrate. His statement was recorded under Section 164 Cr.P.C. Before summoning of Gurdeep Kaur @ Deepo, Nahar Singh had supported the prosecution story, but after appearance of Gurdeep Kaur @ Deepo, Nahar Singh and his wife Kashmir Kaur did not support the prosecution story. Sadhu Singh, Satnam Singh and Jarnail Singh have also failed to support the prosecution story. If parents of the deceased had the intention to implicate the appellants, then Sadhu Singh and Jarnail Singh, who were from the village of Nahar Singh, father of the deceased, were not expected to resile from their statements. Father and mother of the deceased did not support the prosecution story. All this Crl.Appeal No.536-DB of 2001 12 shows that parents of the deceased had no intention to implicate the appellants by tutoring the deceased. No doubt, dying declaration is a weak type of evidence. Without corroboration, dying declaration alone is not sufficient for conviction of the appellants, but dying declaration can be ignored if the Court is of the opinion that the deceased was tutored to name the appellants. In the present case, after the occurrence, parents of the deceased remained in the hospital. No effort was made by them to involve the appellants. If the intention was to implicate the appellants, then parents of the deceased could easily name the appellants. Appellants were named by the deceased when she was dying. While dying, the deceased was not expected to falsely name the appellants. In case the doctors failed to record the smell of kerosene, then on this short point, the prosecution version is not to be disbelieved. Immediately after the occurrence, the patient was referred to Civil Hospital, Nakodar. Till 5.6.1999, the police had no information where was the patient. On 5.6.1999, police came to know about the admission of the patient in Civil Hospital, Jalandhar. After that, police had gone to Civil Hospital, Jalandhar. JMIC was contacted to record the statement of Baljit Kaur. Application was moved for the opinion of the doctor about the fitness of Baljit Kaur. The doctor reported that Baljit Kaur is fit to make statement. In the presence of the doctor, dying declaration of Baljit Kaur was recorded. After recording dying declaration, again the doctor gave certificate to the effect that the patient remained fit and conscious throughout the period of recording her statement. Doctor was not inimical towards the appellants. So, nothing to disbelieve the doctor that certificates given before and after the dying declaration are wrong. After inspecting the place of occurrence, one can and a match Crl.Appeal No.536-DB of 2001 13 box were recovered from the spot. But no evidence on the file that after the occurrence, the appellants remained in the house. Arrest of the appellants was on 16.6.1999. Allegation of Balbir Kaur and Gurdeep Kaur @ Deepo is to the effect that they were residing separately. That means, only Baldev Singh was in the house. If the deceased caught fire accidentally, then Baldev Singh should have reported the matter to the police. Baldev Singh remained silent till his arrest. In case, investigation is not conducted properly, then due to the fault of the Investigating Officer, complainant party should not suffer. Appellants were acquitted of the charges under Sections 304-B/498-A IPC, because parents of the deceased and other witnesses did not support the prosecution story that after marriage and before the present occurrence, deceased was being harassed for want of dowry. Marriage of Baljit Kaur with Baldev Singh was performed in the month of October, 1998. Occurrence is dated 1.6.1999. Death was unnatural at the in-laws' house. No explanation from the side of the appellants how the deceased caught fire accidentally, when husband and wife were residing separately. No one else was in the house. Wife is set on fire by the husband and after committing the crime, husband leaves the house and after some time, returns to the house, then very easy for the husband to state that his wife caught fire accidentally while preparing tea. Evidence on the file was rightly scrutinized. First submission of learned counsel for the appellants is that there is a delay in lodging the FIR. Delay was not explained and is fatal. We have gone through the evidence on the file and are of the opinion that submission of learned counsel for the appellants seems to be not reasonable one. Occurrence is an admitted fact. According to the Crl.Appeal No.536-DB of 2001 14 defence version, deceased caught fire accidentally, whereas as per dying declaration, deceased was set on fire by the appellants. PW11 Satnam Singh stated that at about 11.00 AM, he was near the house of appellant Baldev Singh, then noticed Baljit Kaur with burn injuries. Many other persons were also present there and on their request, he had shifted Baljit Kaur to PHC, Shahkot. No other person was seen in the house. Baldev Singh, when examined under Section 313 Cr.P.C., stated his wife Baljit Kaur received burn injuries accidentally. He had shifted her to the hospital. Intimation was given to his in-laws. In-laws came to the hospital on 1.6.1999. Baljit Kaur did not state a word that he was not in the house, whereas, PW11 Satnam Singh from his village stated that no other person was present in the house, except Baljit Kaur, who was found with burn injuries. Satnam Singh stated that he had shifted Baljit Kaur to the hospital. He has not stated a word that he along with Baldev Singh had shifted Baljit Kaur to the hospital. Dr. Davinder Kumar stated that on 1.6.1999, Baljit Kaur was brought to PHC, Shahkot, with 70% burn injuries. She was in serious condition. Patient was referred to Civil Hospital, Nakodar. Patient was brought by Satnam Singh. In case, Baldev Singh had shifted his wife to PHC, Shahkot, then why no question was put to the doctor that Satnam Singh and Baldev Singh had brought Baljit Kaur to PHC, Shahkot. From PHC, Shahkot, patient was referred to Civil Hospital, Nakodar, but instead of shifting the patient to Civil Hospital, Nakodar, she was shifted to Civil Hospital, Jalandhar. Satnam Singh did not state a word that from PHC, Shahkot, when patient was referred to Civil Hospital, Nakodar, then instead of shifting the patient to