Punjab-Haryana High Court
Babbi Singh And Another vs State Of Punjab on 7 October, 2013
            CRA NO. S-1136-SB OF 2003 (O&M)                                  -1-



                     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                    CHANDIGARH

                                          CRA NO. S-1136-SB OF 2003 (O&M)
                                          DECIDED ON : 07.10.2013


            Babbi Singh and another
                                                                   ...Appellants
                               versus

            State of Punjab
                                                                   ...Respondent

                                    and

                                          CRA NO. S-1173-SB OF 2003 (O & M)

            Balwant Kaur
                                                                   ...Appellant
                               versus

            State of Punjab
                                                                   ...Respondent


            CORAM : HON'BLE MR. JUSTICE K. C. PURI


            Present : Mr. Daldeep Singh, Advocate,
                      for appellant (s)

                               Mr. S. S. Chandumajra, Senior DAG, Punjab.


            K. C. PURI, J. (ORAL)

Vide this common judgment, I intend to dispose of two criminal appeals bearing No. S-1136-SB of 2003 titled as, “Babbi singh and another vs. State of Punjab” and No. S– 1173-SB of 2003 titled as, “Balwant Kaur vs. State of Punjab“, as the same have arisen out of the same FIR. However, for convenience, the facts are being taken from CRA No. S-1136-SB of 2003.

Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -2-

The facts as gathered from the record are that on 04.07.1999, Darshan Singh son of Pirthi Singh made a statement to the effect that he was a labourer. His brother Gurjant Singh had expired about five years ago and daughter of Gurjant Singh was married to accused Babbi Singh about four years ago. The marriage was performed according to the status of complainant. After some time of their marriage, all the accused started maltreating Bhinder Kaur d/o Gurjant Singh on account of bringing insufficient dowry. They raised demand of more dowry. About 1-1/2 years ago, Bhinder Kaur gave birth to a son and the accused raised demand of ‘shushak’. Two days before 04.07.1999, he received a message from Bhinder Kaur, in this regard. On 03.07.1999, he along with his nephew Lakha Singh went to the house of accused. Bhinder Kaur told them that marriage of maternal grand daughter of her father-in-law was to be performed and they had to give gifts to them on that account and as such, the accused were compelling her to bring utensils and clothes from her parents. The complainant along with Lakha Singh persuaded the accused not to make such demands as they belong to a poor family. At about 7:00 P.M, when they were going on the metalled road just near the house of Bhinder Kaur, they heard cries of Bhinder Kaur. At the door steps they learnt that the accused had bolted the gate of the courtyard from inside. They saw over the gate that accused Babbi Singh had caught hold of both the arms of Bhinder Kaur and accused Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -3-

Gurdev Singh sprinkled kerosene oil from the canny on the body of Bhinder Kaur and Balwant Kaur @ Gukho-mother of accused Babbi Singh set the body of Bhinder Kaur on fire with the help of burning matchstick. They tried their best to open the bolted gate but in vain. They then scaled over the wall and entered the house. They extinguished fire on the body of Bhinder Kaur with the help of blanket which was taken from the house of accused. By that time Bhinder Kaur had been completely burnt. On the basis of his statement, formal FIR was recorded. Investigation was carried out. The accused were arrested and on completion of investigation, challan against the accused was presented in Court.

On presentation of challan, copies of same were supplied to all the accused free of costs, as envisaged under Section 207 Cr.P.C.

Charge under Section 304-B of the Indian Penal Code was framed against all the three accused, to which they pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined Dr. S.L.Thukral as PW-1, Dr. Pawan Kumar Bansal as PW-2, Dr.Surinder Pal Kaur as PW-3, Darshan Singh (complainant) as PW-4, Lakha Singh (eye witness) as PW-5, ASI Kaur Singh as PW-6, SI Bhupinder Singh as PW-7, C.Jarnail Singh as PW-8, SI Gurdip Singh as PW-9, HC Narvir Singh as PW-10 and closed the evidence.

Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -4-

All the accused were examined under Section 313 Cr.P.C., wherein all the incriminating evidence was put to them to which they pleaded innocence and false implication. Accused Lakha Singh took a stand that Darshan Singh and Lakha Singh have concocted a story of pouring kerosene oil and burning Bhinder Kaur (deceased) and in their family ties they spent some money. Bhinder Kaur committed suicide of her own as she was insisting him to live separately but he ignored her request, as he was to feed his old parents being their only son.

Accused Gurdev Singh and Balwant Kaur also adopted the same plea as that of accused Babbi Singh.

The accused were called upon to lead their defence evidence and they examined Jaila Singh as DW-1, Mithu Singh as DW-2, Dr. M. S. Chaudhary as DW-3 and closed the evidence.

The learned trial Court, after appraisal of the evidence, convicted all the three accused under Section 304-B IPC vide judgment dated 27.03.2003 and vide order dated 28.03.2003, sentenced them to undergo rigorous imprisonment and fine as under :-

01. Babbi Singh RI for ten years and to pay fine of u/s 304-B IPC `2500/- or in default of payment of fine to further undergo RI for two months;

02. Gurdev Singh RI for seven years and to pay fine of Balwant Kaur `1500/- each or in default of u/s 304-B IPC payment of fine to further undergo RI for one month each.

Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -5-

Feeling dissatisfied with the above said judgment of conviction 27.03.2003 and order of sentence dated 28.03.2003 passed by Shri Karnail Singh, Additional Sessions Judge, Bathinda, appellants Babbi Singh and Gurdev Singh have preferred joint appeal, whereas appellant Balwant Kaur has preferred separate appeal.

I have heard learned counsel for the parties and have gone through the records of the case.

Learned counsel for the appellants has submitted that the case of prosecution is that Lakha Singh and Darshan Singh went to the house of in-laws of Bhinder Kaur (deceased). On 03.07.1999, Bhinder Kaur told them that marriage of maternal grand-daughter of her father-in-law Gurdev Singh was to be performed and the accused party had to give gifts on that account and as such, the accused compelled her to bring utensils and clothes from her parents. The case of prosecution is that about 7:00 PM, Lakha Singh and Darshan Singh were going on the metallic road just near the house of Bhinder Kaur, they heard cries of Bhinder Kaur. At the door steps they learnt that the accused had bolted the gate of the courtyard from inside. They saw over the gate that accused Babbi Singh had caught hold of both the arms of Bhinder Kaur and accused Gurdev Singh sprinkled kerosene oil from the canny on the body of Bhinder Kaur and Balwant Kaur @ Gukho-mother of accused Babbi Singh set Bhinder Kaur on fire with the help of burning matchstick. Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -6-

They tried their best to open the bolted gate but in vain. They then scaled over the wall and entered the house. They extinguished fire on the body of Bhinder Kaur with the help of blanket which was taken from the house of accused. During the cross-examination, they have admitted that their hands suffered burn injuries. However, no medicolegal report of Lakha Singh and Darshan Singh has been placed on file. Both of them have stated that they got treatment from a private practitioner and that has also not been examined.

It is further submitted that the story put forward by the prosecution regarding forcibly putting kerosene oil and litting the fire is unnatural.

According to Darshan Singh and Lakha Singh, they removed Bhinder Kaur (deceased) to Civil Hospital, Gonian and then to Civil Hospital, Bathinda. However, there is no evidence on file in this regard. In fact father-in-law, mother-in-law have removed Bhinder Kaur (deceased) to the hospital. Their names were mentioned in the head note of the bed head ticket but the prosecution has peeled off the upper portion of the bed head ticket Exhibit P-D in order to destroy the evidence of presence of mother-in-law and father-in-law of Bhinder Kaur (deceased). It is further submitted that otherwise also, the said finding is against the charge, as no charge under Section 302 IPC has been framed against the appellants. Even the prosecution has not filed any appeal for convicting the appellants under Section 302 IPC. So Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -7-

the story of prosecution regarding sprinkling kerosene oil and liting the fire by the accused/appellants is against the charge and against records and the said finding is required to be set-aside.

In respect of charge under Section 304-B IPC, learned counsel for the appellants has submitted that the trial Court has given a wrong finding that the appellants are guilty for an offence punishable under Section 304-B IPC. In fact the accused are very poor persons. Bhinder Kaur had committed suicide due to poverty and not on account of demand of dowry.

Learned counsel for the appellants has further submitted that even if the prosecution story is taken as it is, in that case also, ingredients of offence under Section 304-B IPC are not made out against the appellants.

The basic ingredient for an offence punishable under Section 304-B IPC is that soon before the death, there was demand of dowry articles. The said evidence is totally missing in the present case. It is further submitted that in case the testimony of Darshan Singh and Lakha Singh, who are material witnesses, is taken into account in that case they have stated about the demand of ‘shushak’ at the time of birth of his son which has taken place about 1-1/2 years prior to the death of Bhinder Kaur. The said demand cannot be said to be soon before the death and moreover, the demand of ‘shushak’ does not fall within the ambit of dowry demand.

The other allegations against the appellants are that Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -8-

they have demanded utensils and clothes for giving the same as gift to grand-daughter of Gurdev Singh (father-in-law) of the deceased. The said demand also cannot be said to be demand in connection with dowry demand. There is no other demand attributed to the appellants. So, it is submitted that the ingredients of offence punishable under Section 304-B IPC are not made out.

Learned counsel for the appellants has relied upon authorities :-

(1) “Appasaheb and another vs. State of Maharashtra” 2001 (1) RCR (Criminal) 747; (2) “Modinsab Kasimsab Kanchagar vs. State of Karnataka and another” 2013 (2) Crl. C.C. 139 and (3) “Rajesh Kumar and another vs. State of Punjab” 2009 (2) RCR (Criminal) 483.

Learned counsel for the appellants has further submitted that as per the conviction slip, appellant Babbi Singh has undergone incarceration for a period of 05 years 05 months and 25 days and appellant Balwant Kaur @ Ghuko has undergone incarceration for a period of 04 years 07 months and 13 days including remissions. Appellant Gurdev Singh has died.

Learned State counsel has supported the judgment passed by the trial Court and has opposed the prayer made by learned counsel for the appellants.

It is submitted that all the accused have put kerosene oil and have committed murder of Bhinder Kaur. Although Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -9-

prosecution has not filed appeal. However, this Court can enhance the sentence by giving notice. It is submitted that offence under Section 304-B IPC is clearly made out. The demand of dowry articles was there. So, the appellants have been rightly convicted under Section 304-B IPC.

I have given my thoughtful consideration to the rival contentions made by both the sides and have gone through the records of the case.

The learned trial Court has given a finding that all the accused have put kerosene oil on Bhinder Kaur (deceased) and lit the fire. However, strange enough that the trial Court has not framed charge under Section 302 IPC. Even the prosecution has not filed any appeal for sentencing the appellants under Section 302 IPC. No doubt this Court can enhance the sentence after giving notice but in my view the finding of trial Court that the appellants have committed the murder of Bhinder Kaur, is not proved beyond reasonable doubt. It is not possible that in the presence of two near relatives, the appellants can commit the murder of Bhinder Kaur by putting kerosene oil. The village of Lakha Singh and Darshan Singh was about 45 kms away from the village of deceased Bhinder Kaur and that distance can be covered within one hour by using a private vehicle. Bhinder Kaur died at 9:00 P.M in the hospital at Bathinda. The FIR was registered at 12:15 PM. The case of appellants is that they have informed the relatives of Bhinder Kaur and as such, they could Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -10-

have reached the hospital before lodging the FIR.

According to the case of prosecution, Bhinder Kaur was removed to hospital by Lakha Singh and Darshan Singh, however, the record of hospital does not support the said fact. None of the witness from the hospital has stated that Bhinder Kaur (deceased) was brought to hospital by Lakha Singh and Darshan Singh. Rather doubt has been created by the prosecution. The upper portion of the bed head ticket of Bhinder Kaur (deceased) Exhibit P-D had been peeled off so the possibility cannot be said to be that the said portion has been peeled off as names of mother-in-law and father-in-law of Bhinder Kaur (deceased) might have appeared. Otherwise also, the prosecution has to stand on its own legs and has to prove that Bhinder Kaur was removed to hospital by Lakha Singh and Darshan Singh and that evidence is missing.

In these circumstances, the findings of trial Court that the accused/appellants put kerosene oil and then lit fire on the body of Bhinder Kaur (deceased) stands set-aside.

Now reverting to the fact, whether from the facts of the present case, the offence under Section 304-BIPC is made out or not, the witnesses of prosecution namely Lakha Singh and Darshan Singh (material witnesses) have stated about two demands specifically : (1 ) demand of articles in the form of “shushak” on the birth of son of Bhinder Kaur (deceased). The said demand was raised about 1-1/2 years prior to the death of Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -11-

Bhinder Kaur. So, the said demand cannot be taken as dowry demand as the same was not soon before the death. Moreover, demand of “shushak” cannot be said to be a demand in connection with dowry articles. This Court in Rajesh Kumar and another’s case (supra), has held that demand of dowry articles at the time of “shushak” does not come within the definition of dowry demand.

The second demand according to the above said material witnesses was in respect of giving utensils and clothes as gifts on the occasion of marriage of grand-daughter of Gurdev Singh (father-in-law of deceased Bhinder Kaur).

The Hon’ble Apex Court in Appasaheb and another’s case (supra) has held that demand of `1000/1200/- for domestic expenses is not a demand regarding dowry. The Hon’ble Apex Court again in Modinsab Kasimsab Kanchagar’s case (supra) has held that demand of `10,000/- for repayment of loan cannot be taken as dowry demand.

However, taking into consideration whole of the circumstances and the fact that death had taken place in the house of appellants and there are allegations of harassment, the stand taken by the appellants that Bhinder Kaur (deceased) died due to poverty, has rightly been rejected by the trial Court. In these circumstances, both the appellants stand acquitted under Section 304-B IPC. However, they stand convicted under Section 306 IPC.

Bhatia Shalini 2013.10.23 15:52 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1136-SB OF 2003 (O&M) -12-

Now reverting to the quantum of sentence, from the conviction slip, it is revealed that appellant Babbi Singh has undergone incarceration for a period of 05 years 05 months and 25 days and Balwant Kaur @ Ghuko has undergone incarceration for a period of 04 years 07 months and 13 days including remissions. So, in these circumstances, both the appellants are sentenced to undergo the period already undergone by them under Section 306 IPC. However, they shall pay fine of `2000/- each and in default of payment of fine, they shall undergo rigorous imprisonment for a period of 03 months.

The appeal stands disposed of accordingly. A copy of this judgment be sent to the trial Court for compliance.

            OCTOBER 07, 2013                             (K. C. PURI)
            shalini                                         JUDGE




Bhatia Shalini
2013.10.23 15:52
I attest to the accuracy and
integrity of this document
High Court Chandigarh

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