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#Vague allegations, #NOdowry demand, #Material #improvements by witness, #Delayed witness recording, NO #mensrea, #No #Abetment : All accused acquitted of #498a #304B #ipc306

//// …31. It seems that PW 8 Kanwar Pal has been introduced in order to make out a case that “soon before her death”, the deceased was harassed on account of dowry demands as according to him, on 13 th January, 1996, he had gone to the house of Saroj when she informed him about the demand of Rs.10,000/-. It is pertinent to note that although the unfortunate incident has taken place on 20 th January, 1996, but statement of this witness was recorded by the Police under section 161 Cr. P.C. for the first time on 7th February, 1996.
….
60. Adverting to the facts of the case, although it is established that marriage of Saroj with Mahavir had taken place on 7 th May, 1995 and she has committed suicide within eight months of the marriage, however, none of the three material witnesses examined by the prosecution proved the allegations of demand of dowry and infact the deceased herself gave a clean chit to accused Mahavir and Shri Chand and in the suicide note she does not level any allegation even against her mother-in-law and sister-in-law.

61. It is a cardinal principle of criminal jurisprudence that the guilt of the accused is to be established by the prosecution beyond the possibility of any reasonable doubt. Even if there may be an element of truth in the prosecution story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. Similar view was taken in Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637; Anil W.Singh v.State of Bihar, (2003) 9 SCC 67; Reddy Sampath W. v. State of A.P, (2005) 7 SCC 603 and Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172.

62. In the instant case, prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt. That being so, they are entitled to benefit of doubt.

63. Under the circumstances, appeal is allowed. Impugned judgment and order on sentence dated 16 th October, 1999 and 23rd October, 1999 respectively are set aside and the appellants are acquitted of the offence alleged against them. Their bail bonds are cancelled and sureties are discharged.
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In THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: May 16, 2014

CR L.A. 611/1999
MAHAVIR KUMAR & ORS. ….. Appellants
Through: Mr.K.B. Andley, Sr. Advocate with Mr.M.L.Yadav and Mr.Lokesh Chandra, Advocates.

vErsus
STATE ….. Respondent
Through: Mr.Ravi Nayak, APP

CORAM:
HON’BLE MR. JUSTICE KAILASH GAMBHIR
HON’BLE MS. JUSTICE SUNITA GUPTA

JUDGMENT

: SUNITA GUPTA, J.

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment and order on sentence dated 16th October, 1999 and 23rd October, 1999 respectively passed by the learned Additional District and Sessions Judge, Delhi in Sessions Case Nos.161/97 arising out of FIR No.52/96, PS Tilak Nagar whereby the appellants were convicted u/s 304B IPC and were sentenced to undergo imprisonment for life and a fine of Rs.50,000/- each, in default of payment, to further to undergo Simple Imprisonment for 5 years each.

2. Background facts as projected by the prosecution in nutshell are as follows:

3. On 20th January, 1996, on receipt of DD No.15A, PW5 ASI Shekhar Lal along with Constable Umed Singh went to house No. WZ-175, Harijan Colony, Tilak Nagar where he found window of a room broken and the door of the room was locked from inside and saw a lady hanging in the room. After sending a boy through the way of window he got the door of the room opened and found the dead body of Saroj. The dead body was brought on the floor after cutting the chunni with which it was hanging. Information was sent to SDM Mr. Dahia to initiate inquest proceedings. One suicide note was found lying on a table in the room which was seized vide seizure memo Ex.PW2/A in the presence of PW3 Inderjeet and PW2 Dalip. The dead body was sent to mortuary at Sabzi Mandi. When the belongings of the room were searched, at that time father of the deceased Ved Prakash produced one letter allegedly written by the deceased to her parents which was seized vide seizure memo Ex.PW5/A. SDM conducted the inquest proceedings in respect of the dead body. After the post mortem, the dead body was given to the father of the deceased. On 22nd January, 1996, PW14 Sh. K.K. Dahia recorded the statement of Ved Prakash (Ex.PW10/B) and directed SHO PS Tilak Nagar to register the case under the appropriate provision of law and investigate the case according to law. Accordingly, FIR under Section 498A/304B IPC was registered. During the course of investigation, all the accused were arrested. After completing investigation, charge sheet was submitted against them.

4. After hearing arguments on charge, vide order dated 5th August, 1997, charge under Section 304 B IPC was framed against all the accused to which they pleaded not guilty and claimed trial.

5. In order to bring home the guilt of the accused, prosecution, in all, examined 16 witnesses. All the incriminating evidence was put to the accused persons wherein factum of marriage of the deceased Saroj with accused Mahavir on 7th May, 1995 was admitted. It was also admitted that the remaining accused Shri Chand, Chameli and Sarla are father-in-law, mother-in-law and sister-in-law respectively of the deceased. It was also admitted that after marriage, deceased started living with the accused persons at her matrimonial home WZ 175, Harijan Colony, Tilak Nagar, Delhi. It was also admitted that on 20th January, 1996, Saroj committed suicide and on receipt of DD No. 15A, ASI Shekhar Lal along with Constable Umed Singh reached H. No. WZ-175, Harijan Colony, Tilak Nagar, Delhi where they found a lady hanging in the room. The dead body was brought on the floor. A suicide note was found on the table which was seized by the police. However, rest of the case of the prosecution was denied. All the accused pleaded their innocence. It was alleged that the deceased was never harassed nor any dowry was ever demanded nor any cruelty was ever inflicted upon her. It was alleged that she was living happily in the house and was well looked after. She was never beaten. In support of their defence, they examined DW1 Sh.Anand and DW2 Sh.Raghuvir Singh, both of whom are neighbours of the accused and have deposed that the accused persons used to look after and keep the deceased in proper manner and no dowry was ever demanded in their presence.

6. After considering the evidence led by the prosecution, learned Trial Court came to the conclusion that all the essential ingredients of Section 304B IPC were duly proved by the prosecution. Prosecution had succeeded in proving that the deceased was subjected to taunts regarding bringing of insufficient dowry and cruel treatment was accorded to her by physical beatings or mental torture. That being so, a presumption under Section 113B of the Evidence Act has to be drawn that the accused persons committed dowry death. As such, all the accused were held guilty under Section 304B IPC and were sentenced as mentioned above.

7. Feeling aggrieved by the aforesaid finding of the learned Trial Court, the present appeal has been preferred by the appellants. However, during the pendency of the appeal, one of the appellants, namely, Shri Chand expired on 19th January, 2006. Therefore, vide order dated 1st November, 2013, the appeal qua him stood abated.

8. It was submitted by Sh.K.B.Andley, learned Senior Advocate duly assisted by Sh.M.L. Yadav, Advocate for the appellant that only charge under Section 304B IPC was framed against the appellants and there was no separate charge under Section 498A IPC. So far as appellant Sarla is concerned, she is the sister-in-law of the deceased and was married at least five years prior to the marriage of the deceased with Mahavir Prasad and was residing at Palam Colony, Raj Nagar, Delhi which was about 15 k.m. away from her parental home. Only occasionally she used to visit her parental home. As such, there was no possibility of her presence on the day of incident when suicide was committed by the deceased. Deceased herself had left a suicide note wherein she had completely exonerated her husband and father- in-law. The suicide note has not been considered at all by the learned Trial Court. Immediately after the incident, no complaint was lodged by the parents of the deceased. It was only on 22nd January, 1996 father of the deceased gave a statement to the SDM which also does not reflect that there was any harassment meted out to the deceased on account of dowry. The prosecution has relied upon the testimony of father, mother and maternal uncle of the deceased who are giving different versions regarding the treatment meted out to the deceased. The allegations are quite vague and are in fact inconsistent with each other. Reference was also made to the letters handed over by father of the deceased to the police which also does not reflect any harassment to the deceased regarding demand of dowry. Moreover, there is nothing on record to show that “soon before death” there was any demand of dowry in order to bring the case within the four corners of 304B IPC. After a lapse of more than one month, statement of PW8 Kanwar Pal, maternal uncle of the deceased was recorded. It also does not inspire any confidence. As such, it was submitted that prosecution has failed to bring home the guilt of the appellants and they are entitled to be acquitted.

9. Sh. Ravi Nayak, learned Additional Public Prosecutor for the State, on the other hand, relied upon two undated distinct hand written notes recovered from the room of the deceased Saroj @ Rekha and one hand written letter, which was tied to the left forearm of the deceased and was found by Dr. Ashok Kumar for submitting that these letters are a record book of what treatment was meted out to her at her matrimonial home. If all these letters are read over, it only creates doubt regarding recovery of suicide note found on the table. He further referred to the testimony of Ved Prakash, Bimla and Kanwar Pal for submitting that their testimony remains consistent regarding harassment and treatment given to the deceased for insufficient dowry. Kanwar Pal has further deposed regarding demand of Rs.10,000/- which was soon before her death. The appellants have not been able to rebut the presumption under Section 113B of the Evidence Act. No evidence has come from the side of the appellants that they were not present at their house when the incident took place. Post mortem report of the deceased was also referred to for submitting that the Doctor found the bladder and the rectum empty, corroborating the suggestion that the deceased was often made to sleep hungry as she has stated in the letter. Delay of one day in registration of the FIR is no ground to doubt the prosecution case as it has come in the deposition of the parents of the deceased that soon they reached the matrimonial room of their daughter, accused Mahavir and Shri Chand took father of the deceased in a corner and asked him not to make any statement to the police. Even mother was stopped by the accused Chameli Devi from entering the crowd to find out about the incident. Under the circumstances, it was submitted that the impugned judgment does not suffer from any infirmity which calls for interference. Reliance was placed on Surinder Singh v. State of Haryana, 2013 (13) SCALE 691 and Bhateri Devi & Anr. v. State of Delhi, 2013 (4) JCC 2907.

10. We have given our anxious thoughts to the respective submissions of learned counsel for the parties and have also perused the Trial Court record.

11. The dowry system is in existence from the time immemorial in different forms and in different sects of society. It having taken the form of a wide spread epidemic became a matter of concern for the State as well as the social reformatory institutions. The Legislature became alert to the urging necessity of eradicating this social evil by appropriate enactment. True it is that Legislation cannot by itself solve the deep rooted social problem and it is only the education of the society in a particular direction and the efforts of the reformative bodies that social problems can be solved, however, the Legislation has played an important role in curbing the lust of dowry hungry persons. The Legislature, as such, enacted the Dowry Prohibition Act, 1961 and introduced subsequent amendments in the provisions thereof to help the helpless weaker section of the society, i.e., the women folk from the torture and harassment, mental and physical at the hands of the husband and in laws on account of their parents being unable to quench the ever increasing thirst for the property in the form of dowry. Not only those who want to raise their status by managing to get the necessities, comforts and luxuries of life though marriage but the effluent section of the society even in certain cases has a lust for easy money or material through the institution of marriage. Thus the sacred ties of the marriage are given deplorable form and the vows taken by the husband at the alter of marriage are pushed in oblivion and continuous demand every now and then is either directly made by the husband or his relatives to the parents of the bride at the time of marriage or subsequent thereto.

12. Sec. 2 of the Dowry Prohibition Act, 1961 (hereinafter to be referred as ‘the Act’) defines the term ‘dowry’ as under:

“Sec. 2 Definition of ‘Dowry’: In this Act “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person to either party to the marriage or to any other person, at or before (or any time after the marriage) (in connection with the marriage of the said parties), but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.”

13. The insertion of the word “or any time after the marriage” and “in connection with the marriage of the said parties” by amendments in the year 1986 and 1984 respectively has significance because clever parties initially do not enter into any agreement or make a demand but subsequent to the marriage after the lapse of some period make the demand directly or through the wife in order to make a show that it is not dowry. It is for this reason that Legislation in its wisdom included subsequent demands and the things given as inclusive in the definition of “dowry”. Along with these amendments, provisions were inserted in the Indian Penal Code and in the Indian Evidence Act. Section 304B was inserted in Indian Penal Code as a new provision in the category of offences falling under sections 302, 304A and 307 IPC, in order to curb the lust of procurement of the dowry in the past marital life.

14. Section 304B reads as under:

“304B. Dowry death:Where the death of a woman is caused by any burns of bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called ‘dowry death’ and such husband or relative shall be deemed to have caused her death.”

Explanation-For the purpose of this sub-section “dowry” shall have the same meaning as in Sec.2 of the Dowry Prohibition Act, 1961 (28 of 1961). Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.”

15. Hon‟ble Supreme Court in Sunil Bajaj v. State of MP, (2001) 9 SCC 417, after noticing the provisions of section 304B IPC had opined that in order to establish an offence u/s 304B IPC, following ingredients must be established before any death can be termed as dowry death:

(1) The death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances.

(2) Such death must have occurred within 7 years of her marriage.

(3) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband.

(4) Such cruelty or harassment must be for or in connection with demand of dowry.

16. This section will apply whenever the occurrence of death of a woman is preceded by cruelty or harassment by husband or in-laws for dowry and death occurs in unnatural circumstances. The intention behind this section is to fasten the guilt on the husband or in-laws though they did not in fact caused the death. It may be noticed that punishment for the offence of dowry death under Section 304B is imprisonment of not less than 7 years, which may extend to imprisonment for life, unlike under Section 498A IPC, where husband or relative of husband of a woman subjecting her to cruelty shall be liable to imprisonment for a term which may extend to three years and shall also be liable to fine. Normally, in a criminal case accused can be punished for an offence on establishment of commission of that offence on the basis of evidence, may be direct or circumstantial or both. But in case of an offence under Section 304B IPC, an exception is made by deeming provision as to the nature of death as “dowry death” and that the husband or his relative, as the case may be, is deemed to have caused such death, even in the absence of evidence to prove these aspects but on proving the existence of the ingredients of the said offence by convincing evidence. Hence, there is need for greater care and caution, that too having regard to the gravity of the punishment prescribed for the said offence, in scrutinizing the evidence and in arriving at the conclusion as to whether all the above mentioned ingredients of the offence are proved by the prosecution.

17. Section 113B of the Evidence Act is also relevant for the case in hand. Both Section 304-B IPC and Section 113B of the Evidence Act were inserted by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113 B of the Evidence Act, 1872 reads as under:-

“113B. Presumption as to dowry death.- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation.- For the purposes of this section, “dowry death” shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)”

18. As per the definition of “dowry death” in Section 304B Indian Penal Code and the wording in the presumptive Section 113B of the Evidence Act, one of the essential ingredients amongst others, in both the provisions is that the woman concerned must have been ‘soon before her death’ subjected to cruelty or harassment “for or in connection with the demand for dowry”. While considering these provisions, Hon‟ble Court in M. Srinivasulu v. State of A.P., (2007) 12 SCC 443 has observed thus:

“8.4… The presumption shall be raised only on proof of the following essentials:

(1) The question before the court must be whether the accused has committed the dowry death of a woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B Indian Penal Code.)

(2) The woman was subjected to cruelty or harassment by her husband or his relatives.

(3) Such cruelty or harassment was for, or in connection with any demand for dowry.

(4) Such cruelty or harassment was soon before her death.”

19. A perusal of Section 113B of the Evidence Act and Section 304B Indian Penal Code shows that there must be material to show that “soon before her death” the victim was subjected to cruelty or harassment. In other words, the prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the “death occurring otherwise than in normal circumstances”. The prosecution is obliged to show that soon before the occurrence, there was cruelty or harassment and only in that case presumption operates.

20. Adverting to the case in hand, as regards the first ingredient that the death of a woman must have been caused by burns or bodily injury or otherwise than under normal circumstances, the prosecution has examined Dr. Ashok Jaiswal (PW1) who conducted the post mortem on the dead body of the deceased Saroj and proved reports Ex. PW1/A and Ex.PW1/B opining that the death was due to ante mortem hanging caused by ligature found tied around neck. In cross- examination, he could not rule out the possibility of suicide. The fact that death of Saroj has taken place due to hanging also stands proved from the testimony of PW2 Dilip, PW3 Inderjeet and PW5 ASI Shekhar Lal, PW7 Bimla, PW10 Ved Prakash and PW13 Constable Umed Singh. A suicide note Ex. PW2/B was also found wherein the deceased has stated that she is committing suicide. The factum of committing suicide by the deceased is not even disputed by the accused. Under the circumstances, it stands proved that Saroj @ Rekha had committed suicide. Suicide committed by a woman comes within the purview of Section 304B IPC as it is also a case of death which does not occur under normal circumstances. As such, it is proved that Saroj @ Rekha died “otherwise than under normal circumstances”.

21. It is also undisputed case of the parties that the marriage of the deceased had taken place with the accused Mahavir on 7th May, 1995 and the unfortunate incident has taken place on 20th January, 1996, i.e., within eight months and 13 days of the marriage. As such, the first two ingredients mentioned above are satisfied.

22. We now have to see whether the third ingredient is also satisfied by looking at the evidence on record.

23. Out of 16 witnesses examined by the prosecution, material witnesses in this regard are PW7 Smt. Bimla, PW8 Kanwar Pal and PW10 Ved Prakash, mother, maternal uncle and father respectively of the deceased.

24. PW7 Smt. Bimla, mother of the deceased has deposed that after marriage her daughter Saroj started living at her matrimonial home at Tilak Nagar. Sufficient dowry was given in the marriage according to her status and capacity despite that all the accused persons used to taunt her for insufficient dowry which fact was stated to her by her daughter after two months of the marriage when she came to her house. Her daughter informed her that she was being taunted for bringing less dowry and no articles for the in-laws. She was also beaten up by all the accused persons for bringing insufficient dowry. These facts were disclosed by her on the occasion of Bhaiya Dooj and Raksha Bandhan when she came to her house. On 18th January, 1996, Chameli Devi, mother-in-law of the deceased came to her house in order to greet her as she was going to be the grandmother. She reciprocated the same. However, on 20th January, 1996, Bittoo, s/o Mohinder came to her and informed that condition of her daughter was not good. As such, she rushed to house of her daughter along with her husband and found a crowd and police officials and found her daughter hanging with a ceiling fan in a room. In cross- examination, she admitted that she did not state to the police that she was informed by her daughter that she was taunted and beaten up due to insufficient dowry.

25. PW8 Kanwar Pal is the maternal uncle of the deceased and has deposed that he had visited the matrimonial home of his niece Saroj two three times after her marriage. On 13th January, 1996 he had gone to the house of deceased Saroj on the occasion of Sakranti. At that time, Saroj told him that her in-laws were demanding Rs.10,000/- on account of construction of shop which was demolished earlier and that her mother-in-law, sister-in-law used to give beatings to her. He informed this fact to father of the deceased on 15th January, 1996 at his residence. In cross-examination, he stated that after 1½ -2 months of the marriage, he had gone to meet Saroj. At that time, she told that in the neighbourhood, in the marriage of someone, colour TV and scooter was given in dowry. Sister-in-law of the deceased also told him “Kallo ne kaha ki meri bhabhi bahut achhi hain magar pados mein kisi ki shadi mein colour TV aur scooter milla hai.” He, however, admitted that this fact was not stated by him to the police when his statement was recorded on 17th February, 1996. As regards demand of Rs.10,000/-, he could not say who demanded this amount.

26. PW10 Ved Prakash is the father of the deceased. He has also deposed that enough dowry was given by him at the time of marriage as per his capacity. At the time of marriage or soon thereafter, there was no complaint from any of the accused person in regard to dowry. However, after about 2 months of marriage, when he visited his daughter at her matrimonial home, at that time, she told him that her in-laws have started teasing her for insufficient dowry after marriage in their neighbourhood had taken place in which the bride side had given enough dowry such as colour TV, scooter etc. On the occasion of Raksha Bandhan when his daughter visited him, at that time, she also narrated that she was being frequently beaten up by the accused persons. After 4-5 days he talked to accused Shri Chand in order to know their grudge but he did not disclose any such thing. On the eve of Sakranti, his brother-in law (Kanwar Pal) had gone to his daughter‟s house to present customary gift. On 15th January, 1996, Kanwar Pal came and told him that when he visited his daughter, she was weeping bitterly and stated that her in-laws were demanding Rs.10,000/- for constructing a shop for Mahavir and for that reason, she was being regularly beaten up by all the accused. On 18th January, 1996, accused Chameli, mother-in-law of his daughter came to his house and congratulated them for becoming prospective grand parents of a baby, however, on 20th January, 1996 at about 8:30 pm, a boy, namely, Bittoo came and informed that condition of his daughter was not well. As such, he along with his wife went to Tilak Nagar. On reaching the matrimonial home, they found that there was a crowd and police officials were also present. As soon as he got down from the scooter, he was taken in a nearby room by accused Shri Chand and Mahavir and was threatened that in case any wrong statement is made before the police then he would be beaten up and would also be involved in a false case and that he would also be hanged as his daughter had been done to death. Thereafter, he was taken to the room of his daughter where he saw his daughter hanging with a ceiling fan. Next day, number of persons visited the house of accused persons in order to see the room in which his daughter was murdered. When they entered the room a small child picked up a paper lying underneath a bed and gave it to his wife who passed it to him. When he got that letter read from his son Mukesh then, it was revealed that his daughter has alleged ill-treatment by her in-laws. He became suspicious and gave photocopy of the paper Ex. PW5/A to the Police. Thereafter, he lodged a complaint Ex.PW10/A with the Police. In cross-examination, he could not say if he had stated to the SDM who recorded his statement that he was informed by Kanwar Pal on 15 th January, 1996 that demand of Rs.10,000/- is being made for construction of a shop for Mahavir.

27. On being informed about the incident, on 22nd January, 1996, PW14 Sh. K.K.Dahia, the then SDM, Punjabi Bagh recorded the statement of Ved Prakash, Ex.PW10/B and directed registration of the case. A perusal of the statement Ex.PW10/B which became the bed rock of investigation reveals that it was alleged that after two months of the marriage, his daughter informed him that the accused persons taunted her that her father had not given anything in the marriage, although in the neighbourhood, a marriage had taken place where the girl‟s side had given a colour TV and scooter. No direct demand was made from his daughter, by her in-laws but they used to taunt. Her mother-in-law also used to beat his daughter.

28. A perusal of the aforesaid evidence led by the prosecution goes to show that the allegations are quite vague, unspecific and uncertain. The witnesses themselves have deposed that no demand was made directly by any of the accused persons either from the deceased or from them. The allegations are confined to the fact that a marriage has taken place in the neighbourhood in which the bride had brought colour TV and scooter and the deceased used to be taunted on that account. Even regarding these facts, there is material improvement in the testimony of the witness, inasmuch as, mother of the deceased admitted in her cross-examination that she did not state to the police that her daughter informed her regarding insufficient dowry or taunts and beatings given by the accused persons when she came to her house on the occasion of Bhaiya Dooj and Raksha Bandhan. As far as Ved Prakash is concerned, he has specifically deposed that either at the time of marriage or soon thereafter, there was no complaint from any of the accused persons with regard to dowry. He has also deposed that after the marriage in the neighbourhood where colour TV and scooter was given in dowry, his daughter used to be teased by her in- laws. Even at this juncture, there is no allegation that any demand was made from the deceased or her parents for bringing any dowry article. He has, however, gone on stating that his brother-in-law Kanwar Pal had gone to the house of his daughter on the occasion of Sakranti to give customary gifts, at that time, his daughter informed him that her in-laws were demanding Rs.10,000/- for constructing a shop for Mahavir. However, this part of the testimony was a clear improvement as he was confronted with his statement Ex.PW10/DA where this fact was not mentioned. It is pertinent to note that even when his statement was recorded by the SDM, at that time also, it was not disclosed by him that his brother-in-law informed him that demand of Rs.10,000/- for construction of shop for Mahavir was made by the accused persons.

29. From the evidence on record, it is clear that there was no evidence of demand of dowry or subjecting Saroj to cruelty for or in connection with demand of dowry other than general and vague statements of the parents and maternal uncle of deceased.

30. Moreover, to bring home the guilt of the accused within the four corners of section 304B IPC, it is incumbent upon the prosecution to prove that “soon before her death” deceased was subjected to cruelty or harassment by her husband or in laws. The expression “soon before death” has not been defined and the legislation has not specified any time which would be the period prior to death that would attract the provisions of section 304B IPC. In Sunil Bansal v. State of Delhi, 2007(7) AD Delhi 780, it was observed as under:

“Though there is no thumb rule as to what is meant by the expression “soon before” death of a woman u/s 304B IPC despite substantial flexibility, the charge cannot be maintained, if the acts are remote in point of time. Hon’ble Supreme Court has held in Kaliya Perumal v. State of Tamil Nadu, AIR 2003 SC 3828 and Yashoda v. State of M.P., 2004 III AD 305:2004 (3) SCC 98 that there should not be too much of the time lag between cruelty and harassment in connection with demand of dowry and the death in question. It was also held that there must exist a proximate and live link between the effect of cruelty based on dowry demands and death of the woman. The Court held that if the alleged incident of cruelty is remote in time and has become stale, not to disturb mental equilibrium of the woman, it would be of no consequence.”

31. It seems that PW 8 Kanwar Pal has been introduced in order to make out a case that “soon before her death”, the deceased was harassed on account of dowry demands as according to him, on 13 th January, 1996, he had gone to the house of Saroj when she informed him about the demand of Rs.10,000/-. It is pertinent to note that although the unfortunate incident has taken place on 20 th January, 1996, but statement of this witness was recorded by the Police under section 161 Cr. P.C. for the first time on 7th February, 1996.

32. There are catena of decisions that if the statement of the witness is not recorded on the date of incident or within reasonable time then, it has to be viewed with caution. To cite a few Paramjit Singh v. State of Punjab, 1997 (4) SCC 156; Jagjit Singh v. State of Punjab, (2005) 3 SCC 689; Maruti Rama Naik v. State of Maharashtra, (2003) 10 SCC 670; Harjinder Singh @ Bhola v. State of Punjab, (2004) 11 SCC 253; Prem Narain and Anr. v. State of Madhya Pradesh, (2007) 15 SCC 485.

33. It is not the case of prosecution that this witness was not available to the Investigating Officer of the case. No explanation whatsoever has been given by the Investigating Officer as to why the statement of this witness was not recorded earlier. Under the circumstances, his statement has to be viewed with caution. Moreover, if he had disclosed about the harassment to the deceased for demand of Rs.10,000/- for construction of a shop for Mahavir to her father Ved Prakash on 15th January, 1996 itself, there is no reason as to why this crucial fact was not disclosed by PW 10 Ved Prakash in his statement Ex.PW10/B made before the SDM. Testimony of PW7 Bimla, mother of the deceased is conspicuously silent in regard to any such demand. Moreover, in Appasaheb and Anr. v. State of Maharashtra, AIR 2007 SC 763 it was held by the Supreme Court that in order to bring the case within the four corners of Section 498- A IPC, any property or valuable security should be given or agreed to be given, either directly or indirectly, on or before or any time after the marriage and in connection with marriage of the said parties. Giving or taking of property or valuable security must have some connection with marriage, which is essential. Demand for money on account of some stringency or meeting some urgent domestic expense cannot be termed as demand for dowry. In Sanju v. State, 2009(164) DLT 459 demand of Rs.50,000/- by the appellant for his business from the father and mother of the deceased was held not to fall under demand of dowry as defined under Section 2 of Dowry Prohibition Act as demand is not made in relation to marriage. Besides that, there are general, vague and inconsistent statements of interested witnesses PW7, PW8 & PW10 being the parents and maternal uncle of the deceased which are not sufficient to establish essential ingredients of Section 304B IPC.

34. On the other hand, PW3 Inderjeet, PW4 Rajinder Singh and PW9 Smt. Sapna, used to live in the neighbourhood of the deceased and all these witnesses have deposed that they have never seen the accused persons causing any harassment or torture to the deceased for demand of dowry nor any dowry was ever demanded in their presence. The accused persons had also examined DW1 Anand and DW2 Raghuvir Singh, neighbours, both of whom have also deposed that the deceased was kept well by the accused persons and was never harassed on account of dowry.

35. Coming to the documentary evidence, it is the admitted case of the parties that a suicide note Ex. PW2/B was found lying on a table which was seized vide seizure memo Ex.PW2/A. A perusal of this suicide note goes to show that the deceased has completely exonerated her husband and father-in-law and has taken the responsibility of committing suicide on her own.

36. Learned Public Prosecutor for the State, however, relied upon three undated distinct hand written notes, two of them were recovered from the room where the deceased Saroj @ Rekha died by hanging and the third was tied to the left forearm of the deceased. The two handwritten notes found from the room out of which one was lying on the table marked as Ex.PW2/B and recovered in the presence of Dalip (PW2) and Inderjeet (PW3), neighbours of the accused persons. In another similar hand written letter Ex.PW5/C which was found under the bed of the deceased wherein she stated about the physical abuse meted out to her and laments that it was because of her poor background and the fact that she could not bring enough dowry, that she was treated that way. Then the third hand written letter was the 3 page letter written by the deceased, marked as Ex.PW1/A, addressed to her father which was tied to left forearm of the deceased and found by Doctor Ashok Kumar PW1 and in this letter the deceased had stated that by the time this letter would be read, she might be dead. It was submitted that these letters narrate the ordeals to which deceased was subjected to even for regular living necessities such as a sweater where she was taunted to bring her clothes from her parents, she was not fed properly and often slept without food at night. If all these letters are read, it creates doubt over the recovery of suicide note found on the table. It was further submitted that the other two similar undated hand written letters of the deceased highlight the plight of the deceased and showed the circumstances in which she was staying at her matrimonial place and particular attention was brought to third line from the top where she writes about her mother- in-law “jab se aayi hai, yahi kapde dali hai, apne ghar se kuch nahi layi” and at the top five lines where she writes about her husband that he does not even talk about her food and eats himself without even asking her and she remained hungry for several nights and finally the deceased writes about the slaps given to her which she attributes mainly because of her poor background and also because she could not get sufficient dowry. It was submitted that all these show the harassment and constant mental cruelty in the form of taunts and instances of physical cruelty in the form of slaps.

37. Learned senior counsel for the appellant, on the other hand, submitted that these letters do not reflect any demand of dowry or harassment to the deceased on that account.

38. A perusal of the letter Ex.PW5/C goes to show that it is written that:-

“Papaji aap hi bataiye ki meri galti kya hai. Mai peechhe baith kar kapde dho rahi thi. Mammi ne darwaaza khatkhataya tha. Mujhe aawaz nahi aayi kyonki peechhe tape wagairah chal rahi thi. Baad mei aawaz aane par maine jab darwaza khola, to mammi ne bina soche samjhe 2-3 haath rakh diye, baad mei chappal bhi nikaal li tatha bura bhala mere ghar waalo ko bhi bola. Akhir mein kab tak bardasht karein. Mere din baar ke bolne par hi beizzati ho gai. Kya hamari koi izzat nahi hai jo har koi mere upar haath uthate hain. Mai garib ghar ki hu na. Yadi dahej mei achha laati to shayad yeh sab na hota.”

39. In the other letter, she has referred to the comments made on her clothes. That, at best, can be termed to be discord and difference in domestic life which is quite common in the society to which the victim belonged but the same fall short of proving that the deceased has been subjected to cruelty or harassment „for or in connection with the demand of dowry‟.

40. In these letters, there is no reference of any demand of dowry by any of the appellants. Had there been any demand of dowry or demand of Rs.10,000/- for reconstruction of shop of Mahavir, deceased would have certainly commented upon the same in the aforesaid exhibits. This creates a serious doubt about the version of PW7, PW8 and PW10 regarding harassment of deceased by her husband and in-laws on account of demand of dowry.

41. With this evidence on record, it is clear that:-

(i) There is no evidence of demand of dowry or subjecting Saroj to cruelty for or in connection with dowry other than general, vague and inconsistent statement of interested witnesses, PW 7, 8 & 10, being the parents and maternal uncle of the deceased.

(ii) Not a single neighbour has come forward to speak about subjecting Saroj to cruelty by the appellants in relation to demand of dowry.

(iii) According to the parents of the deceased , there was no demand of dowry either at the time of marriage or even thereafter. There was no specific demand made by any of the appellants either from the deceased or from them.

(iv) The suicide note completely exonerates the husband and father-in-law and does not inculpate mother-in-law and sister-in-law.

(v) The letters Ex.PW1/A, Ex.5/B and Ex.5/C written by the deceased make mention of normal wear and tear of life but no mention was made about the demand of dowry or harassment meted out to her in connection with dowry.

(vi) PW7, PW8 & PW10, on account of Saroj having committed suicide, obviously were angry with the appellant and had every reason to involve them for offence under Section 304B IPC.

(vii) It is very unfortunate that within eight months of the marriage, Saroj had taken the extreme step of committing suicide but what exactly prompted her to take this extreme step has not surfaced.

42. Presumption under Section 113B of the Evidence Act can be drawn only when prosecution first establishes the essential ingredients of Section 304B IPC. Since the evidence falls short of proving the essential ingredients to Section 304B IPC, question of drawing presumption against the accused under Section 113B does not arise. The learned Trial Court fell in error in concluding that the appellants were guilty of offence when the crucial and necessary ingredient that deceased Saroj was subjected to cruelty and harassment soon before her death was not proved looking to the evidence and circumstances cumulatively. Therefore, the findings of learned Trial Court cannot be sustained.

43. The charge sheet was submitted under Sections 498-A/304-B IPC, however, no separate charge for an offence under Section 498-A IPC was framed. It is, however, a settled proposition of law that mere omission or defect in framing of charge would not disentitle the Court from convicting the accused for the offence which has been found to be proved on the basis of the evidence on record. In such circumstances, the matter would fall within the purview of Section 221(1) and (2) of the Code of Criminal Procedure, 1973. In M. Srinivasulu (supra), it was held by Supreme Court that a person charged and acquitted u/s 304B IPC can be convicted u/s 498A IPC without that charge being there, if such a case is made out. That being so, it is to be seen as to whether offence under Section 498-A IPC is made out of not. Section 498-A reads as under:-

“498A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.–For the purpose of this section, “cruelty” means–

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

44. A bare reading of Section 498-A goes to show that the term cruelty which has been made punishable under the Section, has been defined in the explanation appended to the said section. Therefore, the consequences of cruelty, which are either likely to drive the woman to commit suicide or to cause grave injury/or danger to life, limb or health, whether mental or physical, of the woman or harassment of the woman where such harassment is with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, are required to be established in order to prove an offence under Section 498 IPC.

45. Turning to the case at hand, as seen above, there is absolutely no allegation that either any demand of dowry was made from the deceased or from her parents. The allegations are confined to the taunts given to the deceased by comparing the dowry articles brought by the bride in the neighbourhood. It was also alleged that a sum of Rs.10,000/- was demanded for re-construction of shop of appellant- Mahavir which in view of the discussion made above does not come within the purview of demand in relation to marriage.

46. Even as per the letters, the beatings given to her are attributed to her mother-in-law alone. As stated above, in the suicide note, she has completely exonerated her husband and father-in-law whereas no allegations have been made against the mother-in-law and sister-in- law. Even the letters do not make a mention about any ill treatment to the deceased by her sister-in-law who undisputedly was married much prior to the marriage of the deceased with Mahavir and was living in her matrimonial home. As such, at the most, the allegations may tantamount to causing physical or mental cruelty upon the deceased under Part (b) of the Section by the mother-in-law, therefore, the allegations at the most are confined to Chameli Devi, mother-in-law of the deceased. However, as per the nominal roll, she remained in custody for a period of 3 years, 7 months and 15 days. The punishment prescribed under Section 498A IPC extends to three years only. Under the circumstances, even if it is held that Chameli Devi is guilty of offence under Section 498A IPC then she is entitled to be released on the period already undergone.

47. Keeping in view the fact that Saroj has committed suicide within seven years of marriage, it may also be seen whether any case u/s 306 IPC is made out. Section 306 IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment which may extend to ten years and with fine.

48. Section 107 IPC defines “abetment” which reads as under :

“S.107. A person abets the doing of a thing, who First– Instigates any person to do that thing; or Secondly– Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly– Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation.1- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.

Explanation.2 – Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.”

49. This section has to be read with section 113A of Evidence Act, 1872 which reads as under:-

“When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation.- For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860)”.

50. A perusal of this section goes to show that any person, who abets commission of suicide, is liable to be punished under section 306 IPC. Section 107 IPC lays down ingredients of abetment, which includes instigating any person to do a thing or engaging with one or more persons in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. As per definition of abetment as laid down u/s 107 IPC, there has to be instigation to commit suicide on behalf of the accused persons.

51. In Sanju @ Sanjay Singh Sengar v. State of M.P., (2002) Cri.LJ. 2796, it was observed:

“Where suicide was not the direct result of the quarrel when the appellant used abusive language and told the deceased to go and dies, no offence u/s 306 IPC is made out.”

52. In Kishori Lal v. State of M.P., (2007) 10 SCC 797, it was observed :-

“Mere fact that the husband treated the deceased wife with cruelty is not enough to bring the case within the parameter of Section 306 IPC.”

53. In the absence of direct evidence, it is to be seen whether presumption u/s 113 A of Indian Evidence Act can be drawn or not.

54. Unlike section 113B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in section 113A of the Indian Evidence Act. Under section 113A of the Indian Evidence Act the prosecution has to first establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband and in-laws (in this case) had subjected her to cruelty. Even if these facts are established, the Court is not bound to presume that the suicide had been abetted by her husband. Section 113A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in section 498A IPC. The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband and in-laws does not automatically give rise to the presumption that the suicide had been abetted by her husband and in-laws. The Court is required to look into all other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The law has been succinctly stated in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618 wherein Hon’ble Supreme Court observed :-

“This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26.12.1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in laws and incriminating evidence was usually available within the four corner of the matrimonial home and hence was not available to anyone outside the occupants of the house. However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113A shows that to attract applicability of section 113A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the Court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissible as the employment of expression “may presume” suggests. Secondly, the existence and availability of the above said three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the Court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the Court to abstain from drawing the presumption. The expression “the other circumstances of the case” used in Section 113A suggests the need to reach a cause and effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in section 113A is defined in section 4 of the Evidence Act, which says “Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it”.

30. In the State of West Bengal v. Orilal Jaiswal and anr., (1994) 1 SCC 73, Hon’ble Apex Court observed :-

“We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of section 498A IPC and section 113A of the Indian Evidence Act. Although, the Court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidence adduced in the case and the materials placed on record. Lord Denning in Bater v. Bater, 1950 (2) All ER 458, 459 has observed that the doubt must of a reasonable man and the standard adopted be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject matter”.

55. In Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750, Hon‟ble Supreme Court, observed as under:-

In State of West Bengal v. Orilal Jaiswal & Ors (1994) 1 SCC 73, this Court has cautioned that the Courts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.”

56. In Mahendra Singh v. State of MP, 1995 SCC (Cri) 1157, Hon‟ble Supreme Court observed that it is common knowledge that the words uttered in a quarrel or in spur of moment or in anger cannot be treated as constituting mens rea. In the said case, appellant said to the deceased to “to go and die” and as a result of such utterance, the deceased went and committed suicide, however, Hon‟ble Supreme Court observed that no offence under Section 306 IPC read with Section 107 IPC was made out since there was no element of mens rea.

57. In Bhagwan Das v. Kartar Singh & Ors., (2007) 11 SCC 205, it was held that quite often there are disputes and discord in the matrimonial home and wife is harassed by husband or by her in-laws, this, however, would not by itself and without something more attract Section 306 IPC read with Section 107 IPC.

58. Substantially similar view was taken by this Court in Shailender v. State, 169 (2010) DLT 563.

59. In the instant case, there is no averment in the statement of the witnesses that any of the accused instigated the deceased to commit suicide. There is no direct evidence to establish that any of the accused either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. From a reading of the contents of hand written letter, Ex.PW5/B, it appears that some utterances used to be made by mother-in-law of the deceased which was not to her liking and she used to remain disturbed because of that. However, no evidence has come on record to suggest that such utterances were made wilfully and intentionally in order to instigate the deceased in taking extreme steps of ending her life. Rather it has come on record that after Saroj conceived, family members were very happy. In fact on 18th January, 1993, Chameli Devi, mother-in-law of the deceased visited her parents‟ house to congratulate them as they were going to become grand parents of a child. In the facts of this case, prosecution has been unsuccessful in proving that there was element of mens rea on the part of the accused, accordingly, in our view, ingredients of evidence under Section 306 IPC r/w Section 107 IPC are not attracted. As observed in Smt. Bisno v. State, 2011 II AD (Delhi) 501, there is always a reason behind an act committed by a person. Committing of suicide by deceased by hanging herself, that too within eight months of the marriage does raise a suspicion that everything was not normal. This suspicion, however, cannot be a substitute for the proof of dowry demand or subjecting the deceased to harassment and cruelty, i.e., the requisite ingredients which constitute the offence under Section 498-A, 304-B IPC or 306 IPC.

60. Adverting to the facts of the case, although it is established that marriage of Saroj with Mahavir had taken place on 7 th May, 1995 and she has committed suicide within eight months of the marriage, however, none of the three material witnesses examined by the prosecution proved the allegations of demand of dowry and infact the deceased herself gave a clean chit to accused Mahavir and Shri Chand and in the suicide note she does not level any allegation even against her mother-in-law and sister-in-law.

61. It is a cardinal principle of criminal jurisprudence that the guilt of the accused is to be established by the prosecution beyond the possibility of any reasonable doubt. Even if there may be an element of truth in the prosecution story against the accused but considered as a whole there is invariably a long distance to travel and whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted. Similar view was taken in Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637; Anil W.Singh v.State of Bihar, (2003) 9 SCC 67; Reddy Sampath W. v. State of A.P, (2005) 7 SCC 603 and Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172.

62. In the instant case, prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt. That being so, they are entitled to benefit of doubt.

63. Under the circumstances, appeal is allowed. Impugned judgment and order on sentence dated 16 th October, 1999 and 23rd October, 1999 respectively are set aside and the appellants are acquitted of the offence alleged against them. Their bail bonds are cancelled and sureties are discharged.

Intimation be sent to the concerned Superintendent Jail. Trial Court record be sent back forthwith along with copy of the judgment.

(SUNITA GUPTA) JUDGE (KAILASH GAMBHIR) JUDGE MAY 16, 2014 rs

 

Pressure cooker not dowry item, HC rules – The Hindu

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Court dismisses appeal challenging acquittal of in-laws in dowry case

The Bombay High Court recently held that a pressure cooker cannot be considered an item of dowry, while dismissing an appeal challenging the acquittal of the in-laws of a woman who committed suicide.

One and a half months after her marriage to Pradeep Nimbhekar, Kusum was allegedly subjected to torture, leading her to end her life on October 3, 1990.

In an FIR lodged the next day, her father Gopal Ram Bharti had alleged his daughter had committed suicide due to pressure for dowry by her mother-in-law, sister-in-law and brother-in-law. Subsequently, the sessions court at Amravati conducted a trial, and found there wasn’t enough evidence to convict the accused.

The State government challenged the acquittal and appealed to the Nagpur Bench of the Bombay HC. It submitted that the accused had allegedly demanded dowry from the victim in the form of a refrigerator and a motorcycle, and hence must be convicted under IPC sections 498A (husband or relative of husband of a woman subjecting her to cruelty) and 304B (dowry death).

In addition, it was claimed that the mother-in-law had complained to a witness that they had not been given utensils like a pressure cooker by the victim’s family.

The counsel appearing for the acquitted accused submitted that the accused were rightly acquitted as the prosecution had not given evidence supporting the allegations regarding demand for dowry.

They further said that the accused were not present at home on the day of her suicide, and the victim was visited by her father who allegedly assaulted her physically when she refused to leave with him. They argued that this had driven her to commit suicide.

A Division Bench comprising Justices R.K. Deshpande and M.G. Giratkar said in the light of lack of evidence, the lower court had rightly acquitted the accused. They added that an in-law complaining about not being gifted a pressure cooker does not amount to demand for dowry. While dismissing the appeal, the court said, “We believe a cooker is not such an article, which can be taken into consideration as dowry.”
— Read on www.thehindu.com/news/cities/mumbai/pressure-cooker-not-dowry-item-hc-rules/article24266342.ece/amp/

Husband NOT guilty of wife’s death, even though 2 dying declarations implicate him ! Raj HC

In this case 2 dying declarations ostensibly given by the deceased wife implicate the husband. The prosecution case is that the husband used to drink and quarrel with the wife and poured kerosene on her and set her ablaze. All the relatives, including relatives of the wife turn hostile and do NOT support the prosecution case. The Hon court appreciates the case in its entirety and acquits the innocent husband !!

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

D.B. Criminal Appeal No. 769 / 2011

Bhagirath S/o Goruram, by caste Nayak,
Resident of Khyali, Tehsil Rajgarh, District Churu.
(At present lodged in Central Jail, Bikaner.) —-Appellant

Versus

State of Rajasthan —-Respondent


For Appellant(s) : Mr. S.K. Poonia.

For Respondent(s) : Mr. Vishnu Kachhawaha, PP.


HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS

HON’BLE MR. JUSTICE GOVERDHAN BARDHAR

JUDGMENT

[Per Hon?ble Mr. G.K. Vyas, J.]

Date of Judgment :: 19th January, 2017

In this criminal appeal filed under Section 374 (2) of Cr.P.C., the accused appellant, Bhagirath, has challenged the judgment dated 29th of Aug., 2011 passed by learned Addl. Sessions Judge, Rajgarh, District Churu (Trial Court) in Session Case No.18/2008, by which the accused appellant, Bhagirath, was convicted for the offences under Sections 498A and 302 of IPC and following sentence was passed against him: –

498A of IPC: Three Years? Simple
Imprisonment along with
fine of Rs.500/-. In
default of payment of
fine, to further undergo
six months? simple
imprisonment.

302 of IPC: Life Imprisonment and
fine of Rs.1,000/- and in
default of payment of
fine, to further undergo
one year simple
imprisonment.

Briefly stated, the facts of the case are that on 16.05.2008 at 03.50 PM, Assistant Sub-Inspector, Mangilal (PW.12) of Police Station Rajgarh, recorded statement („Parcha-Bayan?) Ex.P/19) of Smt. Suresh Devi, wife of accused appellant, Bhagirath, who was under treatment at Government Hospital, Rajgarh, District Churu. In the „Parcha-Bayan?, it was alleged by Smt. Suresh Devi, that my husband after consuming liquor used to harass me and on the date of incident at about 12-12.30 in the afternoon, when I was sleeping inside the house under “Chhapra” (Shed), my husband poured kerosene upon me and lit fire. On the basis of above „Parcha-Bayan? of Smt. Suresh Devi, F.I.R. No.158/2008 was registered at Police Station- Rajgarh, u/s 498A and 307 of IPC against the appellant, Bhagirath, and investigation commenced.

During investigation, Smt. Suresh Devi, died on 25.05.2008, therefore, offence u/s 302 of IPC was added. After completing the investigation, Challan was filed against the accused appellant for offences u/s 302, 498A of IPC in the court of learned A.C.J.M., Rajgarh, from where the case was committed for trial to the court of Addl. Sessions Judge, Rajgarh, District Churu.

The learned trial court thereafter after providing opportunity of hearing to the accused appellant, framed charges against the accused appellant for offence u/s 302 and 498A of IPC on 12.08.2009, which the appellant denied and prayed for trial.

During trial, statements of 14 prosecution witnesses were recorded and 20 documents were exhibited from the prosecution side in support of its case, including two dying declarations Ex.P/10 and Ex.P/19 of deceased, Smt. Suresh Devi, recorded by the Executive Magistrate, Rajgarh, at 04.15 PM and ASI, Mangilal (PW.12) at 03.50 PM on 16.05.2008 respectively. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The learned trial court after recording evidence of the prosecution proceeded to record the statements of accused appellant under Section 313 Cr.P.C. in which accused appellant denied the allegations of prosecution.

An opportunity to lead evidence was granted to the accused, therefore, accused appellant examined himself as DW.1 in defence and said that no kerosene was poured by me, the deceased herself committed suicide while pouring kerosene upon her and my son, Mukesh, poured water on her mother to save. It was also stated by the accused that I am not consuming liquor.

The learned trial court after hearing the arguments considered the entire evidence and while relying upon the dying declaration (Ex.P/10 and Ex.P/19) of the deceased, convicted the accused appellant vide judgment dated 29.08.2011 for committing offences u/s 302 and 498A of IPC, which is under challenge in this appeal.

Learned counsel for the accused appellant submitted that out of 14 prosecution witnesses, PW.1, Mamta, 22 years of age (daughter of deceased, PW.2, Mukesh 16 years of age (son of deceased), PW.3, Karni Singh (independent witness who present at the time of incident), PW.4 Ram Kumar (brother of accused appellant), PW.8 Om Prakash (brother of deceased Smt. Suresh Devi), PW.9 Jagdish (nephew of deceased), PW.10 (nephew of deceased), PW.11 Naresh (nephew of deceased), all the relatives turned hostile and did not support the allegations prosecution. Therefore, it is obvious that neither the family members of the accused appellant nor family members of the deceased, supported the prosecution case, however, the learned trial court while relying upon the dying declaration (Ex.P/19) recorded by the ASI, Mangilal at 03.50 PM on 16.08.2008, and another dying declaration (Ex.P./19) recorded by the Executive Magistrate, Rajgarh at 04.15 Pm on 16.05.2008, convicted the accused appellant, but as per argument of the learned counsel for the appellant both these dying declarations cannot be treated as proved because no certificate of the doctor declaring the injured to be fit to give statements was obtained inspite of the fact that doctors were present. Therefore, the finding of guilt recorded by the learned trial court only on the basis of dying declaration, is not sustainable in law.

Learned counsel for the appellant further submitted that as per statements of PW.12, ASI Mangilal, he reached at Govt. Hospital, Rajgarh, after receiving telephonic information and recorded the statement of Smt. Suresh Devi vide Ex.P/19 at 03.50 PM on 16.05.2008, upon which she (deceased, Smt. Suresh Devi), put her thumb impression and made allegations that her husband poured kerosene upon her. It was further stated by her that after consuming liquor he used to beat me, but it is one of the important fact that deceased was under treatment, where her statements were recorded, and doctor was there, who examined the injured Smt. Suresh Devi at 04.00 PM, and gave Injury Report (Ex.P/8). Meaning thereby before examination by the doctor, her statements were recorded and thumb impression was taken, but Dr. Raj Kumar Sarraf (PW.5) categorically stated in his cross- examination that palm, thumb and fingers of Smt. Suresh Devi (deceased) were completely burnt. Therefore, it is highly doubtful that as to how thumb impression were obtained upon the dying declaration (Ex.P/19). It is also argued that the another dying declaration (Ex.P/10), which was recorded by Executive Magistrate, Rajgarh PW.6, Mr. Narendra Kulhari at 04.15 PM. The said dying declaration (Ex.P/10) also bears the thumb impression of Smt. Suresh Devi. The said witness (PW.6) accepted in his statement that at the time of recording the statement of Smt. Suresh Devi, in the Hospital, doctors were present and thumb impression was taken upon the dying declaration, but as per statement of doctor, who examined first, the palm, thumb and fingers of deceased were already burnt, then how it was possible to obtain the thumb impression of the deceased upon Ex.P/19.

In the cross-examination, a specific question was put to the witness, whether any certificate of fitness was obtained by him or not, PW.6, Narendra Kulhari (the then Executive Magistrate, Rajgarh) stated that, “no I did not obtain any fitness certificate from the doctor nor signature of the doctor was obtained on Ex.P/10.

Learned counsel for the appellant thus vehemently argued that there is ample evidence on record that doctors were present at the time of recording the dying declarations Ex.P/10 and Ex.P/19, but no fitness certificat was obtained prior to recording dying declaration. More so, the Executive Magistrate while recording the dying declaration (Ex.P/10) of Smt. Suresh Devi, did not record his own satisfaction that she is in a position to speak or fit to understand. Therefore, the conviction which is solely based upon the dying declaration of the deceased, is not sustainable so as to convict the accused appellant for the alleged crime of murder.

Learned counsel for the appellant further submitted that there is serious doubt about the recording of dying declaration because there is statement of doctor that palm, fingers and thumb of the deceased were completely burnt. Learned counsel for the appellant invited our attention towards Rule 6.22 of Rajasthan Police Rules, 1965, which provides procedure for recording dying declaration and submitted that dying declaration has not been recorded according to procedure provided in Rule 6.22 of the Rules of 1965, therefore, finding of conviction recorded by the trial court is based upon doubtful evidence.

Learned counsel for the appellant invited our attention towards following judgments:

1. Smt. Kamla Vs. State of Punjab reported in (1993) 1 SCC 1

  1. Kishan Lal Vs. State of Rajasthan reported in (2000) 1 SCC 310
  2. Lella Srinivasa Rao Vs. State of A.P. reported in (2004) 9 SCC 713

  3. Amol Singh Vs. State of M.P., reported in (2008) 5 SCC 468

  4. State of Andhra Pradesh Vs. P. Khaja Hussain reported in (2009) 15 SCC 120

  5. Sharda Vs. State of Rajasthan reported in (2010) 2 SCC 85 7 . S t at e of Rajasthan Vs. Shravan Ram & Anr. (Criminal Appeal No.427/2007, decided on 01.05.2013).

  6. Chhotu Vs. State of Rajasthan reported in 2016 (1) WLN 168 (Raj.)


On the basis of above grounds, it is prayed that the impugned judgment may kindly be quashed and the accused may be acquitted from the charges.

Per contra, learned Public Prosecutor vehemently argued that although all the witnesses including, family members of deceased and the family members of accused, turned hostile and did not support the prosecution case, but the dying declaration of the deceased recorded, firstly by the ASI Mangilal vide Ex.P/19, and by the Executive Magistrate, Rajgarh vide Ex.P/10, cannot be disbelieved because in both the dying declarations, specific allegations were levelled by the deceased against the appellant for pouring kerosene and litting fire upon her. Therefore, no error has been committed by the trial court in relying upon the dying declaration of deceased, Smt. Suresh Kumar Devi, to hold the accused appellant guilty for the offence of murder.

With regard to argument of learned counsel for the accused appellant that while recording the dying declaration provisions as contemplated in Rule 6.22 of the Rajasthan Police Rules, 1965 (Rules of 1965) have not been complied with, it is argued by the learned Public Prosecutor that in this case the dying declaration (Ex.P/10) was recorded by the Executive Magistrate, therefore, it cannot be said that Rule 6.22 of the Rules of 1965, has not been taken in consideration for the purpose of recording the statement of deceased, Smt. Suresh Dehvi. As far as ground taken by the learned counsel for the accused appellant that before recording the statements/dying declaration of Smt. Suresh Devi, fitness certificate was not obtained by the ASI, Mangilal (PW.12) and so also by the Magistrate, it is argued by the learned Public Prosecutor that only satisfaction of the authority recording the dying declaration is to be there. The dying declaration should satisfy all the necessary tests and one of such important test if there are more than one dying declaration, they should be consistent, particularly in the matter particulars. In this case, there is no contradiction in the both the dying declarations, therefore, the ground raised by the learned counsel for the accused appellant that dying declarations were recorded without obtaining fitness certificate is not sustainable in law. It is also pointed out that even though all the witnesses turned hostile, two dying declarations recorded by the independent officials, cannot be ignored and same has rightly been relied upon by the learned trial court while holding him guilty for offence u/s 302 of IPC, as such this appeal may kindly be dismissed and the finding of conviction arrived at by the learned trial court may be upheld. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

After hearing the learned counsel for the parties, we have minutely scanned the entire evidence and find that whole prosecution case is based upon the statements of 14 prosecution witnesses, and out of 14 witnesses, PW.1, Mamta, 22 years of age (daughter of deceased, PW.2, Mukesh 16 years of age (son of deceased), PW.3, Karni Singh (independent witness who present at the time of incident), PW.4 Ram Kumar (brother of accused appellant), PW.8 Om Prakash (brother of deceased Smt. Suresh Devi), PW.9 Jagdish (nephew of deceased), PW.10 (nephew of deceased), PW.11 Naresh (nephew of deceased), all turned hostile and did not support the prosecution case. Furthermore, son and daughter of the deceased and brother of the appellant specifically stated that kerosene was poured by deceased herself, and further stated that accused appellant was not consuming liquor.

Thus it is obvious that inspite of two dying declarations of the deceased recorded by the ASI, Mangilal and the Executive Magistrate, Rajgarh, which have been relied upon by the trial court so as to convict the accused appellant for the alleged crime of murder.

After considering the arguments raised by the learned counsel for the accused appellant to disbelieve the dying declaration, now we are dealing the question as to whether the dying declaration recorded by ASI, Mangilal and Executive Magistrate, Rajgarh, would be sufficient to record finding of conviction against the appellant. To consider the argument, we have perused Rule 6.22 of the Rules of 1965, which reads as infra:

Dying Declarations – (1 ) A dying declaration shall, whenever possible, be recorded by a Magistrate.

(2) The person making the declaration shall, if possible, be examined by medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a lucid statement.

(3) If no Magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police department and with the parties concerned in the case.

(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.

(5) A dying declaration made to a police officer should, under Section 162, Code of Criminal Procedure, be signed by the person making it.”

Upon the present set of evidence, we find that although the statements/?Parcha-Bayan? Ex.P/19 was recorded by the ASI, Mangilal (PW.12), upon that FIR was registered. The said „Parcha-Bayan? of the injured was recorded at 03.50 PM on 16.05.2008 when Smt. Suresh Devi, was under treatment at Govt. Hospital, Rajgarh. The said dying declaration bears the thumb impression of the deceased, Smt. Suresh Devi. Upon perusal of entire „Parcha-Bayan?, it is obvious that there is no disclosure for taking any fitness certificate of the doctor though statements were recorded in the Govt. Hospital, Rajgarh, and soon after recording the „Parcha-Bayan? at 04.00 PM, Smt. Suresh Devi (deceased) was medically examined by the doctor at 04.00PM and injury report was prepared. In our opinion even though it was necessary to obtain fitness certificate before recording statements („Parcha-Bayan?) but at the same time, we cannot lose sight of the fact that the time and the place where the dying declarations of the deceased were recorded, was the hospital and doctors were very much present in the Hospital. In the statement of the PW.5, Dr. Raj Kumar Sarraf it is categorically stated that palm, both thumbs and fingers were in burnt condition. So also the said witness nowhere stated that deceased disclosed the reason how burn took place or her husband poured kerosene upon her. In the cross- examination a specific question was put to doctor whether you have any knowledge how incident of burn took place, it is replied by him that I don?t know how burn injuries were caused to the deceased.

In our view, if „Parcha-Bayan? was recorded by the ASI, Mangilal, just ten minutes before medical examination of the injured by Dr. Raj Kumar Sarraf (PW.5), then obviously, doctor was to be informed about the reason of burn. As per injury report (Ex.P/8), after examination by the doctor was prepared at 4?O Clock, before ten minutes, the ASI recorded the statement of deceased, for which a specific question was put to doctor whether statement of injured were recorded in his presence, to which he replied that, “;g lgh gS fd ,l s h lp w u k dk dkxt bl i=k- ij ugha gSA ;g lgh gS fd iqfyl }kjk fy;k x;k ipkZ c;kuo dk;kZikyd eft- }kjk fy, x, c;ku ejs h ekStnw xh eas ugha fy, x,A eaS ejht dk bykt djus eas O;Lr FkkA ;g lgh gS fd et:ck dh gFky s h o vx a qfy;k tys gq, FkAs ”

a Bw ]s vx The aforesaid discussion of evidence create serious doubt the fact of recording the „Parcha-Bayan? (Ex.P/19) by the ASI, Mangilal, upon which the FIR was registered against the accused appellant.

We have perused the second statement/dying declaration (Ex.P/10) which is said to be recorded by the Executive Magistrate, Rajgarh. Upon perusal of Ex.P/10, it is abundantly clear that there is no whisper about the fact that any satisfaction was recorded by the Magistrate before recording the statements of the injured with regard to fitness of the injured even to speak and the said statements were recorded at 04.15 PM, just after fifteen minutes before the injured was medically examined by Dr. Raj Kumar Sarraf. It is not in dispute that the said dying declaration (Ex.P/10) was recorded by the Executive Magistrate, Rajgarh, in the Govt. Hospital and upon that there is thumb impression of injured, but no presence of other witness is recorded including doctors, who were present in the hospital, by the Executive Magistrate. Similarly, no satisfaction about fitness and state of mind was recorded by the Executive Magistrate before recording the dying declaration of the deceased.

In the totality of the circumstances and considering the fact that all relatives including in-laws of deceased and maternal side, turned hostile and in both the dying declarations, no fitness certificate was obtained from the doctors who were present in the hospital. Therefore, we are of the view that it is not safe to rely upon the so- called two dying declarations so as to hold the accused appellant guilty for the alleged crime of murder.

We have perused and considered the law laid down by the Hon?ble Apex Court in the judgments cited at bar by the learned counsel for the accused appellant. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

The Hon?ble Apex Court considering the scope of multiple in the case of Smt. Kamla v. State of Punjab (supra) held as under:

“A dying declaration should satisfy all the necessary tests and one such important test is that if there are more than one dying declaration they should be consistent particularly in material particulars.”

In the case of Kishan Lal v. State of Rajasthan, (2000) 1 SCC 310, the Honb?le Apex Court held as under:

“Examining these two dying declarations, we find not only that they gave two conflicting versions but there is inter se discrepancies in the depositions of the witnesses given in support of the other dying declaration dated 6.11.1976. Finally, in the dying declaration before a Magistrate on which possibly more reliance could have been placed the deceased did not name any of the accused. Thus, we have no hesitation to hold that these two dying declarations do not bring home the guilt of the appellant. High Court, therefore, erred in placing reliance on it by erroneously evaluating them.”

In the case of Lella Srinivasa Rao v. State of A.P.

(2004) 9 SCC 713, the Hon?ble Apex had considered the legality and acceptability of two dying declarations.

Noticing the inconsistency between the two dying declarations, and held that it is not safe to act solely on the said declarations to convict the accused persons.

In the case of Amol Singh v. State of Madhya Pradesh (2008) 5 SCC 468, the Hon?ble Apex Court interfered with the order of sentence noticing inconsistencies between the multiple dying declarations. It is not the plurality of the dying declarations but the reliability thereof that adds weight to the prosecution case. If a dying declaration is found to be voluntary, reliable and made in fit mental condition, it can be relied upon without any corroboration but the statement should be consistent throughout. However, if some inconsistencies are noticed between one dying declaration and the other, the Court has to examine the nature of the inconsistencies, namely, whether they are material or not and while scrutinising the contents of various dying declarations, in such a situation, the court has to examine the same in the light of the various surrounding facts and circumstances.

In the case of State of Andhra Pradesh v. P. Khaja Hussain, (2009) 15 SCC 120, held that it was not a case where the variation between the two dying declarations was trivial in nature.

In the case of Sharda v. State of Rajasthan (2010) 2 SCC 85, the Hon?ble Apex Court while dealing with three dying declarations and noticing inconsistencies between dying declarations, set aside the sentence ordered by Sessions Judge as well as High Court and held as under:

“Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross-examination. Such a right of cross- examination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a Crl.A.No. 699/08 fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration.”

The Constitution Bench of Hon?ble Apex Court in the case of Laxman Vs. State of Maharasthra, reported in AIR 2002 SC 2973 held that absence of certificate of doctor as to fitness of mind of declarant would not render dying declaration not acceptable. What is essentially required is that person who records it, must be satisfied that deceased was in fit state of mind. Certification by doctor is rule of caution. If the voluntary and truthful nature of declaration can be otherwise established, the same can be relied to record the dying declaration. The hyper technical view should not be therefore taken.

So far as facts of present case are concerned, neither the Executive Magistrate, Rajgarh, nor the ASI, Mangilal (PW.12) recorded their own satisfaction while recording the statements/dying declaration of the deceased. Even the doctor, who was present in the Hospital, has not been asked to give fitness certificate declaring the injured to be in a position to give statement.

We have gone through both the dying declarations and considered the fact that all the witnesses of family, including parental family of the deceased, turned hostile and did not corroborate the allegations made by the deceased in the so-called dying declarations against the accused appellant, so also, it is admitted position of the case that inspite of presence of doctors, fitness certificate was not obtained, nor own satisfaction of fitness was recorded by the Executive Magistrate, Rajgarh, and ASI, Mangilal (PW.12) before recording the statements of the deceased. In view of above, whole prosecution case which is solely based upon dying declaration, is doubtful. Therefore, it is a fit case to reverse the finding of conviction arrived by the learned trial court so as to hold accused appellant guilty for the offence of murder. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

Furthermore, there is no corroborative evidence on record to the effect that deceased, Smt. Suresh Devi, was subjected cruelty in connection demand of dowry. Thus, the conviction recorded by the learned trial court holding the accused appellant guilty for offence under Section 498A of IPC, is not sustainable in law.

Consequently, while extending benefit of doubt the instant criminal appeal filed by the accused appellant, Bhagirath is hereby allowed. The impugned judgment dated 29th of Aug., 2011 passed in Session Case No.18/2008 by learned Addl. Sessions Judge, Rajgarh, District Churu, convicting the accused appellant for offences u/s 498A and 302 of IPC is hereby quashed and set aside. The accused appellant be released forthwith, if not required in any other case.

Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellant, on receipt of notice thereof, shall appear before Hon’ble the Supreme Court.

(GOVERDHAN BARDHAR)J.

(GOPAL KRISHAN VYAS)J.

DJ/-


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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


An innocent man is spared by the dying declaration of his wife ! Acquittal even after wife’s death P&H HC

Just because a wife is dead, within seven years, due to unnatural causes, does NOT  mean conviction !! Even though the parents of the dead woman weave a false story of dowry demand and cruelty, register a case of dowry death, the husband is spared by the wife’s cogent and clear dying declaration, clarifying that it was an accident and that her husband only tried to save her

The court concludes it’s well reasoned judgement as follows ” ….Having evaluated the evidence independently the finding of the trial Court so far as the dying declaration is concerned is accepted as the same passes the test of credibility. Nisha had narrated sequence of events. The trial Court did not entertain any doubts about the statement. The medical officer had made an endorsement about the mental state, therefore, the dying declaration could not be excluded from consideration. It is found that it would be safe to act on the dying declaration. There is no inconsistency. The deceased had not blamed any one for the incident. She herself was not aware of the reason as to how her clothes caught fire. It appears that the parents out of utter frustration chose to file a complaint subsequently. Even otherwise the demand of money for construction of a house would not fall within the definition of dowry demand. There was no   complaint prior to the incident to the Panchayat. There was no complaint to  the Senior Officers under whom the accused was serving. People have become more aware. In cases where Government servant are involved, people do not hesitate and send written complaints to the senior officers. The incident was an accident. The dying declaration was natural. The maker of the same was in a fit mental condition, therefore, accepting the dying declaration the findings recorded on point No. 2 and 8 are set aside. The Appeal is accepted. All the accused are acquitted. Their bail bonds are discharged. ……..”


IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

Crl. Appeal No. S-2331-SB of 2008

Date of decision : 01.03.2016

Dilawar Singh and others  …… Appellants
versus
State of Punjab … Respondent

CORAM:- HON’BLE MRS. JUSTICE ANITA CHAUDHRY
1.Whether Reporters of local papers may be allowed to see the judgment?
2.To be referred to the Reporters or not? Yes
3.Whether the judgment should be reported in the digest?

Present:               Mr. Bipan Ghai, Sr. Advocate with Mr. Paras Talwar, Advocate for the appellants

Mr. K.S. Aulakh, AAG Punjab

ANITA CHAUDHRY, J.

The appellants were convicted and sentenced to undergo rigorous imprisonment for 10 years under Sections 304-B IPC by the Sessions Judge, Jalandhar on 01.10.2008.

Recapitulating the brief facts, Nisha was married to Dawinder Singh on 31.01.2001. An unfortunate incident took place on 13.11.2005. Nisha succumbed to the injuries on 16.11.2005. A dying declaration was made by the deceased giving clean chit to the family, therefore, no FIR was registered. A complaint was filed subsequently and the accused were summoned. The case was committed and the prosecution examined 10 witnesses.

In the statement recorded under Section 313 Cr.P.C. all the   accused denied the circumstances and pleaded innocent. Dawinder had stated that they were living happily and his father and mother had gone to attend a Satsang and he was feeding the pigeons on the roof. The deceased was preparing food on the Chulla using the waste of fire crackers and the fire took place and she was caught in the same and on hearing the cries he came down, tried to save his wife and during that process both his hands were burnt and with the help of the neighbours he took his wife to Puran Hospital Adampur. Six witnesses were examined in defence. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

The case set up by the prosecution was that there was a demand of Rs. 5 lacs for construction of the house which was not met and there was an extra judicial confession by the accused that they had caused death and the dying declaration was never made by the deceased nor it was voluntary and the police was helping the accused as the husband was a Constable working in the SPs office, therefore, all help was rendered and it was a case of murder.

The trial Court held the accused guilty under Section 304-B IPC. They were sentenced to the imprisonment mentioned herein before.

The submission on behalf of the appellant was that a dying declaration was made and the police did not register the FIR and subsequently a complaint was filed and the complainant came up with the story of oral dying declaration which was not accepted. It was urged that trial Court had given a finding that the deceased had caught fire accidently while cooking meals and in that case they could not have been convicted for her death. It was urged that there is a contradiction   as to who had poured the kerosene oil and the Court had wrongly  invoked the presumption and when a categorical finding had been given that the deceased had not made any dying declaration before the complainant or Surinder Singh, therefore, the conclusion that since the death was within seven years, therefore, the presumption under Section 113-B IPC was contradictory and there was no evidence that there was any demand or cruelty soon before the incident. It was urged that the husband had sustained burn injuries on both the arms and they had led evidence in defence to prove the injuries and had it been a case otherwise, the husband would not have made any efforts to save her. It was also submitted that the parents were not at home. It was also submitted that the Medical officer was present through out and a certificate was appended that the deceased remained fit and conscious through out the statement. It was urged that even the neighbours had come to support the accused and the relations between the couple were normal and the deceased was shifted to the hospital by the husband in the conveyance of a neighbour and Tarsem DW was in the same vehicle and the injured had disclosed what had happened. It was urged that there were old expired crackers which were in the grass which exploded and incident was an accident.

The submissions on the other hand were that the husband was a Constable working in the same District and oral dying declaration was made and the statement of the complainant was rightly accepted. It was urged that there was demand and cruelty soon before death and the witnesses have spoken about it and the accused had made a confession before Husan Lal PW-4.

Nisha was married to Dawinder Singh in January 2001. The  unfortunate incident took place on 13.11.2005 at about 8.30 a.m. The complainant had alleged that on 07.11.2005 he had received message from his daughter Nisha that she was apprehending death at the hands of all the accused and she be brought back. On 08.11.2015 he alongwith his wife, Gurmukh Singh and Paramjit Singh went to the house of the accused where they had repeated the demand of Rs. 5 lacs. On 13.11.2005, the complainant received information that his daughter had been burnt. On receipt of this information the complainant alongwith Surinder Singh went to village from where he came to know that his daughter has been shifted to Puran Hospital, Adampur from where he came to know that his daughter has been shifted to Johal Hospital, Rama Mandi, Jalandhar. They reached the hospital and spoke to the daughter who in the presence of his wife and Surinder Singh told them that she was beaten up in the morning by all the accused and Mohinder Kaur had poured kerosene oil upon her and when she tried to run away her husband Dawinder Singh and father-in- law Dilawar Singh prevented her from running and her husband put her on fire with a match stick. The complainant had alleged that Dawinder Singh pushed her with his hands and threw her on the ground and warned her that she should not make the statement against them otherwise she would be killed alongwith her parents. The complainant had also stated that his daughter had told him that she had made a wrong statement to save the accused and it was under fear and pressure. The complainant had deposed that the police had refused to take any action against Dawinder Singh as he was posted in the office   of Senior Superintendent of Police, Jalandhar. The complainant had  also alleged that all the three accused approached Husan Lal on 20.11.2005 and made a confession before him one by one that they had committed a mistake and they should be pardoned. A complaint was filed thereafter. The complainant led preliminary evidence and the accused were summoned.

At the trial the prosecution examined Dr. Sanjeet Babuta as the first witness. He had stated that he was posted as Senior Medical Officer, Civil Hospital, Jalandhar. He had conducted the postmortem examination and had given the cause of death.

Paramjit PW-2 had deposed that Nisha was married to Dawinder Singh about 8/9 years ago and she had son and daughter. He had stated that Dilawar Singh had come to him and had told him on 08.11.2005 that his daughter had been maltreated and he should accompany him to the village so that they should speak to the parents and he alongwith Kamla Devi and Gurmukh Singh accompanied Dilawar Singh and they had given a piece of advise to Dawinder Singh and had requested him not to maltreat Nisha. He stated that it was being repeatedly told by their daughter that the accused were demanding Rs. 5 lacs and had threatened to kill her. He came to know about death of Nisha on 13.11.2005. He stated that he had not suggested to the complainant to make any application against the accused before the police or the panchayat. He stated that they did not call any respectable, Sarpanch or Panch of that village.

Gurmukh Singh PW-3 made a similar statement as made by Paramjit Singh. He stated that he had accompanied the complainant,   Paramjit Singh and Kamla Devi to the house of the accused and they  returned after giving them a piece of advise.

Husan Lal PW-4 stated that he was member Panchayat of village Panshta and Dilawar Singh was a resident of his village. He stated that on 20.11.2005 Dilawar Singh, Mohinder Kaur and Dawinder Singh came to him and confessed to the crime and had asked him to intervene and get a compromise effected. He stated that he had not give any written application to the police nor he had met the Panchayat of village Daroli and he had made statement before the Court for the first time. He stated that he did not know how the deceased had caught fire.

Dilawar Singh PW-5 gave details of the articles given in the marriage He stated that the marriage took place in January 2001. He stated that whenever his daughter came to meet him she had been telling him that Dawinder Singh used to return home under the influence of alcohol and acted like butcher and gave her beatings and there was demand of dowry and she had been turned out of the house but he had advised her to stay in the matrimonial home as she had married him. He stated that in 2004 his daughter told him that Dawinder had been threatening to give divorce to her. He stated that he paid Rs. 1,25,000/- to the accused for purchase of plot and Rs. 60,000/- was withdrawn by him and the remaining amount was taken from his brother-in-law. He deposed that the accused had been demanding Rs. 5 lacs for construction of the house. He deposed that a message had been received from his daughter on 07.11.2005 that they would kill her and that he should come and on the next day he alongwith his wife   Kamla Devi, Gurmukh Singh and Paramjit went to the house of the  accused and they met their daughter and the accused were demanding Rs. 5 lacs and all of them requested the accused and his family and after giving them a piece of advise they returned and their daughter was set on fire on 13.11.2005. He stated that they reached the hospital and their daughter had told them that she was beaten by the accused in the morning and that when she tried to run away, Mohinder Kaur poured kerosene oil on her and she was prevented from leaving the house by Dawinder and Dilawar Singh who were standing near the door and Dawinder Singh set her on fire. He had stated that his daughter had told them that she had made a false statement to the police under fear and pressure. He stated that at that time Dawinder Singh was working as Operator with the SSP. He stated that his daughter died on 16.11.2005 and they went to the village of accused and asked them to get the postmortem performed which they refused and they again approached the police but they were not heard and SSP gave an assurance to conduct an inquiry but no inquiry was conducted. He stated that Husan Lal told him on 20.11.2005 that the accused had come to him and had told him that they had burned the girl and they should try for compromise. He stated that they approached the police a number of time and also gave applications and telegrams to the higher police officers, then he filed a complaint against the accused. The complainant admitted that he had not made any complaint to the police or to the SSP about any demand nor he had given any application against Dawinder Singh that he used to remain under the influence of liquor. He denied that his daughter had made statement before the   Magistrate.

Dev Raj PW-6 brought the summoned record pertaining to the Fixed Deposit Receipts in the name of Kamla Devi which was for a sum of Rs. 1,25,000/- which was encashed on 05.02.2003.

Shaminder Singh PW-7 from the DC office brought copy of the sale deed in favour of Dawinder Singh.

Surinder Singh PW-8 had accompanied the complainant to the hospital. He stated that Nisha had told him that she was beaten up by her husband and in-laws and she was caught by her husband and he poured kerosene oil on her and when she tried to run away she was pushed by her husband. He stated that he did not make any statement to the police but he had gone to the SSP but was not heard.

Vijay Kumar PW-9 co-brother of Dilawar Singh had stated that whenever he had met Nisha, he was told that her in-laws were not happy with the dowry and were taunting her for insufficient dowry and had given a sum of Rs. 60,000/- to Dilawar Singh to meet the demand. He stated that he had not gone to the house of the accused nor had accompanied any Panchayat and he had withdrawn the amount from his account in November 2002.

Balbir Singh PW-10 from the Telegram Department stated that the record had been destroyed and receipt Ex. PE shown to him was issued by them.

In defence, the accused had examined Dr. Baljit Singh Johal who deposed that Nisha had died on 16.11.2005 and her husband was discharged on the same date in view of request made by him and he was having burn injuries on the right forearm and left hand, he stated   that injuries most likely could not be self suffered.  MHC Hardev Singh brought the summoned DDR dated 13.11.2005.

Sh. Deepak Kumar Chaudhary, Judicial Magistrate Ist Class, Tarn Tarn, District Amritsar DW-3 had recorded the dying declaration. His statement reads as under:-

“On 13.11.2005, I was posted as JMIC, Jalandhar. On that day, Balwinder Singh ASI presented before me written application for recording the statement of Nisha wife of Davidner Singh r/o village, Daroli Khurd, who was admitted in Puran Hospital, Adampur. Then I went to that hospital. I obtained the opinion of the doctor about fitness of Nisha to make her statement. Doctor declared her fit to make the statement vide his endorsement Ex. DC. Mother, mother-in- law and father-in-law of Nisha were present by her side and they were asked by me to move out. Thereafter, I recorded her statement. I had read out the contents thereof to her and regarding the correctness thereof I obtained her thumb impression. Her thumb was under dressing and for obtaining the impression thereof dressing was got removed.

That statement is Ex. DB and the same also bears my signatures. The doctor remained present during recording of her statement and he appended his certificate to the effect that during recording of her statement, she remained fit and conscious to make her statement. That certificate of the doctor is Ex. DD. Thereafter, I gave my own certificate   which is Ex. DE which is in my hand and bears my signature.  I had correctly recorded the statement of Nisha as per her version without any addition or omission from my State. I had not make an endorsement in the beginning of said statement that there was no threat, promise or inducement to Nisha. Volunteered I had satisfied myself by making inquiries from her. It is incorrect that accused tutored Nisha to make her statement and that it was under the influence of accused, the said statement was made by her.” ASI Balwinder Singh DW-4 had received information from the hospital regarding Nisha’s admission and had gone to the hospital and had taken the opinion and had contacted the Duty Magistrate. He had also recorded the statement of Rattan Lal, Gurmukh Singh and Surinder Singh. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Tarsem Singh DW-5 a neighbour of the accused came in support of the accused. He stated that Dawinder Singh was on the roof feeding the pigeons and he also heard shrieks of ladies and Dawinder went down running and he (DW) also went to the house of Dawinder and Dawinder was putting off the fire and his clothes also caught fire and he also helped in putting the fire out and they shifted Nisha in the vehicle of shopkeeper and on the way he had asked Nisha as to what had happened. He stated that he found one chapati on the Tawa and there was one piece of kneaded flour and dry grass and a bottle and there was a cracker wrapper in the dry grass.

Dr. Karnail Singh DW-6 had declared Nisha fit to make a   statement. He stated that Magistrate had recorded the statement in his  presence and through out the statement Nisha was fit and he had given a certificate at the end of her statement. He had also disclosed that patient was suffering from 70% burns. He stated that the Magistrate had arrived in the hospital after about one or two hours of the admission.

Reading of the judgment of the trial Court brings out contradictory findings. It would be relevant to refer to the findings. The following points were set out for determination and are contained in para 11 of the judgment which reads as under:-

  1. Whether there is delay in filing the complaint? If so, to what effect?
  2. Whether the accused had the motive to cause the death of the deceased?

  3. Whether the deceased voluntarily made dying declaration before Sh. Deepak Kumar Chaudhary, JMIC, DW3? If so, to what effect?

  4. Whether the deceased made dying declaration before Dilawar Singh complainant and Surinder Singh PW8? If so, to what effect?

  5. Whether all the accused made extra judicial confession before Hussan Lal PW4? If so, to what effect?

  6. Whether all the accused intentionally caused the death of the deceased?

  7. Whether the deceased died, otherwise than under normal circumstances?

  8. Whether the deceased was being harassed, treated  with cruelty by all the accused soon before her death on the ground of demand of dowry?

On point No. 1 the trial Court had observed that there was a delay but it was not fatal and had merely put the Court on guard.

On point No. 2 it held that the accused had a motive to cause the death.

On point No. 3 it held that the deceased had died accidently and she was not set on fire by any of the accused.

On point No. 4 the Court rejected the testimony of the prosecution witnesses that any oral dying declaration was made before Dilawar Singh and Surinder Singh. It concluded that the deceased was not set on fire by the accused and she received injuries otherwise.

On point No. 5 the Court had held that no extra judicial confession was made before Hussan Lal and his statement was not admissible in evidence.

On point No. 6 the Court observed that it can not be held that “all the accused intentionally caused the death”.

On point No. 7 it was observed that since the death was on account of burn injuries, therefore, she had died otherwise than under normal circumstances.

On point No. 8 relying upon the statement of all the witnesses held that girl was being harassed and she was subjected to cruelty by all the accused for dowry.

The above would show that the Court had believed the dying   declaration. It rejected the extra judicial confession said to have been  made by the accused. It had held that the death was accidental but at the same time it held that since the death was unnatural and the family had deposed above acts of cruelty, there was a dowry demand, therefore, it recorded their conviction. The findings are contradictory. It would be necessary to refer to the findings recorded on point No. 6 contained in para 35 of the judgment which read as under:-

“35. It has already been held, while deciding point No. 3, that the deceased voluntarily made dying declaration before the Magistrate that the she caught fire accidentally. It has also been decided while deciding point No. 4 that the deceased had not made any dying declaration before the complainant or Surinder Singh PW8 that she was set on fire by the accused. It has also been held above that at the time when she received burn injuries none of the accused was present inside the house. Therefore, it cannot be held that all the accused intentionally caused her death. In the result, this point is decided against the persecution and in favour of the accused.”

In the light of the above, it is necessary to first see whether the dying declaration made by the deceased could be considered as the last statement and whether it was admissible in evidence. There is no eye witness to the manner in which the occurrence took place. The entire case hinges upon the dying declaration and it has to be seen whether the incident was accidental or homicidal. The incident took   place in the morning on 13.11.2005. Nisha was shifted to the hospital  at about 9.45 a.m. This appears in the statement made by Dr. Karnail Singh DW-6. According to him the patient was suffering from 70% burns. Ruqa was sent to the police who called the Magistrate. The Magistrate had received information at 1.00 p.m. He had recorded the time when he started for the hospital. Another note was made by him at 1.35 when he reached the hospital. He met the doctor and took the opinion regarding her fitness and they proceeded to record the statement. A note was also given that the mother, mother-in-law and father-in-law of the patient were present near the girl and they had been asked to leave the room.

The statement given by Nisha reads as under:- “I was going to prepare meal. I was ill for 2/3 days and feeling giddy for 2/3 days. I did not know as to how my clothes caught fire. I was preparing the meal alone. My husband was feeding the pigeons on the roof. There was no other person at home. My mother-in-law, father-in-law and my daughter were away for satsang and my youngest child was at home. I was lighting the fire in the chulha and, therefore, I used kerosene oil. I was also using straw and waste material of the crackers of Diwali. Suddenly the fire broke out. I started crying. My husband got down and started putting out the fire. His hands got burnt. The people of our vicinity and my husband brought me to hospital in the vehicle.

The philosophy in law underlying admittance in evidence of dying declaration is that dying declaration made by person on the verge of his/her   death has a special sanctity as at that solemn moment, a person is most  unlikely to make any untrue statement therefore a dying declaration enjoys a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration and that is the statement of law summed up by this Court in Kundula Bala Subrahmanyam Vs. State of A.P., (1993) 2 SCC 684.

The law is settled that a dying declaration is admissible in evidence, therefore, it has now to be seen whether the dying declaration made by the accused could be accepted. The statement is not a statement on oath and the maker thereof can not be subjected to cross examination, therefore, if the dying declaration suffers from any infirmity during the course of the trial from other evidence then the same can be refused to be accepted. In the present case there is only one dying declaration.

Nisha had been married for almost 5 years. The incident took place in the morning. She is succumbed to the burn injuries three days later. Nisha was shifted to the hospital by her husband and some neighbours. A ruqa was sent and the police arrived in the hospital and message was sent to the Magistrate who arrived in the hospital at 1.35 p.m. He contacted the doctor for his opinion. The pateint was declared fit to make the statement and the Magistrate found that the mother, mother-in-law and father-in-law were present in the room who were asked to leave the room. Thereafter the statement was recorded. Nisha in her detailed statement mentioned about the incident. She had stated that her child had gone with her in-laws to the   Satsang and her husband was on the roof feeding the pigeons and she was  lighting the hearth for which she had used kerosene oil and some waste of the crackers and she did not know how she had got fire. She had also stated that on hearing her cries her husband came to save her and in the process his hands were also burnt. Nisha succumbed to the injuries on 16.11.2005. The postmortem was conducted and she was cremated. The police on the basis of dying declaration and other statements which came came before it did not register the FIR. The father was not satisfied and he filed a complaint on 24.12.2005 . The prosecution had examined 10 witnesses. The trial Court rejected the statement of Husan Lal before whom the extra judicial confession was said to have been made. It also rejected the prosecution story that an oral dying declaration was made before Dilawar Singh and Surinder Singh and believing the dying declaration, a finding was given that the dying declaration could be accepted but in the end on mis-reading of evidence made unwarranted finding that it was a case of dowry death. On point No. 6 it had observed that the accused had not intentionally caused the death. On point No. 7 the finding was that since the cause of death was due to burn injuries leading to Septicemia and it was the direct cause of death, therefore, Nisha had died otherwise than under normal circumstances. On point No. 8 the finding was that since there was demand of Rs. 5 lacs for construction of the house and the deceased was telling her family, therefore, the girl was being subjected to cruelty by all the accused and invoking the presumption under Section 113-B of the Evidence Act the accused were held guilty.

On one hand a finding was recorded that the death was accidental. The trial Court had also held that the accused had not set her on fire, it had believed the dying declaration and had rejected the extra judicial confession, therefore, there was no reason how the presumption under   Section 113-B of the Evidence Act could be invoked.  A reading of the dying declaration coupled with the statement of the Magistrate who had recorded the statement and the statement of the doctor makes it clear that the dying declaration had been made by the injured. There was no occasion for tutoring as the parents of the deceased were also in the hospital. There is no evidence that parents had made any complaint or had lodged the FIR earlier. They accepted the statement of their daughter and immediately did not make a report. Both the family had participated in the cremation. Had there been a demand of dowry or evidence the parents would not have allowed the in-laws to participate in the last rites. One of the neighbour had accompanied the injured and the husband to the hospital. The doctor had given an endorsement that the patient was fit to make a statement and that endorsement had been proved before the Court though in defence. The prosecution did not choose to examine the Magistrate or the treating doctor. The Medical Officer had noted that the hands of the husband were burnt.

Having evaluated the evidence independently the finding of the trial Court so far as the dying declaration is concerned is accepted as the same passes the test of credibility. Nisha had narrated sequence of events. The trial Court did not entertain any doubts about the statement. The medical officer had made an endorsement about the mental state, therefore, the dying declaration could not be excluded from consideration. It is found that it would be safe to act on the dying declaration. There is no inconsistency. The deceased had not blamed any one for the incident. She herself was not aware of the reason as to how her clothes caught fire. It appears that the parents out of utter frustration chose to file a complaint subsequently. Even otherwise the demand of money for construction of a house would not fall within the definition of dowry demand. There was no   complaint prior to the incident to the Panchayat. There was no complaint to  the Senior Officers under whom the accused was serving. People have become more aware. In cases where Government servant are involved, people do not hesitate and send written complaints to the senior officers. The incident was an accident. The dying declaration was natural. The maker of the same was in a fit mental condition, therefore, accepting the dying declaration the findings recorded on point No. 2 and 8 are set aside.

The Appeal is accepted. All the accused are acquitted. Their bail bonds are discharged.

March 01, 2016                                          (ANITA CHAUDHRY)
                                                        JUDGE

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting


Accident turned into ‘dowrydeath’ with fake witness & dying declarations. How husband & HC dig out truth !!

A sad case where an unfortunate fire accident is converted into a dowry death and murder by husband and in laws. Lower court convicts the Innocents and they are Jailed !! Many years later, the BOM HC (and probably the appellants) dig out the truth

Snippets
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1. There are two dying declarations and there are in consistencies in them

2. While it is alleged that the husband and brother in law poured Kerosine from two plastic cans on the woman and set her ablaze, there are NO injuries in the upper part of the body, there are no burn injuries on the deceased woman’s neck, head etc. the absences of injuries and medical reports are inconsistent with the allegations

3. Some witnesses have signed on blank papers !! and so un reliable “…PW-12 Balasaheb Vithalrao Dudhate, witness to the spot panchanama stated that, his signatures were taken on blank papers on 10.11.2008. Therefore, his evidence is of no assistance to the prosecution case….”

4. The second dying declaration which is introduced is NOT sent to the magistrate for 8 months after the recording of such declaration !! “…however, the said dying declaration was with him for 7 to 8 months. Therefore, his evidence in cross-examination makes it clear that, the copy of the dying declaration Exhibit-80 was not sent to C.J.M. for 8 to 9 months…….”

5. In one Dying declaration it is stated that the father in law was at Padarpur for dharshan in other dying declaration he is party to the murder !!

6. The Doctor who did the post mortem is cross examined and . Therefore, upon careful perusal of the cross- examination of PW-5, it is abundantly clear that, he could not differentiate the burn as homicidal, suicidal or accidental. !! So the prosecution is NOT even able to prove that the burs are homicidal in nature

Finally after a long and ardrous process the BOMBAY HC acquits the innocents and releases them from Jail

“….The conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offenses with which they were charged and convicted. Fine, if any, paid by the appellants be refunded to them. Since the appellants are in jail, they be released forthwith, if not required in any other case….”

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 111 OF 2014

1. Sunil S/o Bapurao Kadam
Age : 28 years, Occ : Agriculture,

2. Sandip Bapurao Kadam
Age ; 25 years, Occ : Student,

3. Bapurao Ganpatrao Kadam
Age : 56 years, Occ : Agriculture

4. Shobhabai W/o Bapurao Kadam
Age : 50 years, Occ : Household,
All R/o Sirpur, Tq. Palam, Dist. Parbhani.

5. Savita Santukrao Deshmukh
Age : 26 years, Occ : Nil,
R/o Chimangaon now at Parbhani. ..APPELLANTS

**VERSUS**

The State of Maharashtra
Through Police Station Officer,
Police Station, Palam,
Tq. Palam, Dist. Parbhani ..RESPONDENT

**************
Advocate for Appellants : Mr. Rajendra Deshmukh
Advocate for Respondent/State : Mr. B.L. Dhas
**************

CORAM : S.S. SHINDE & A.I.S. CHEEMA, JJ.

RESERVED ON : August 13, 2015

PRONOUNCED ON : September 21st,2015

JUDGMENT (PER S.S. SHINDE,J):-

This appeal is filed by the appellants-

original accused, who are convicted for the offence punishable under Sections 498-A r/w 34, 302 r/w 34 of I.P. Code.

2. The brief facts of the prosecution case, are as under :-

(i) Marriage of Kanopatra (now deceased) was performed with accused no.1 on 11 th May, 2006. The father of deceased Kanopatra was residing at village Takali Kumbhakarna, Tq. Parbhani. He was serving in Irrigation Department at Parbhani. After marriage, she resided with accused persons at village Sirpur, Tq. Palam. At the time of marriage, a dowry of Rs.2,00,000/- was given. Initially, the accused persons treated her properly. Thereafter, accused persons subjected deceased Kanopatra to cruelty for their demand of Rs. 1,00,000/- for digging the well in their field. Accused no.3 Bapurao, the father of accused no.1 was in government employment. Accused no.5 Savita was residing with her husband at Parbhani. Deceased Kanopatra had ts and relatives about physical and mental harassment from the accused persons for their demand of Rs. 1,00,000/-. Accordingly, father of deceased Kanopatra had given understanding to the accused persons.

(ii) Govind Deshmukh, father of deceased Kanopatra had brought her to village Takali Kumbhakarna, for Diwali festival of the year 2008. After about 10-15 days, Baban Deshmukh, the cousin brother of Govind reached her to the house of accused at Sirpur, Tq. Palam on 8th November, 2008. Accused nos. 1 and 2 had beaten deceased Kanopatra for not fulfilling the demand of Rs. 1,00,000/-. Accused no.5 Savita was also present at village Sirpur.

(iii) On 9th November, 2008 at about 8.00 a.m., while deceased Kanopatra was washing her face, the accused nos. 1 and 2 poured kerosene from two cans on her person. Accused no.5 Savita caught hold her and accused no.4 set her on fire by means of burning stick. Deceased Kanopatra, while burning came out of house. The neighbours and accused nos. 1 and 2 extinguished the fire. Initially, she was brought to sub-district hospital Gangakhed. Thereafter, she was shifted to Adhar hospital Nanded, for treatment.

(iv) Adhar hospital, Nanded, issued M.L.C., informing the admission of burn case to Shivaji Nagar Police Station, Nanded. Upon which, PSI Phule, visited the hospital and recorded statement of deceased Kanopatra in presence of the doctor. A requisition was also issued to the Special Judicial Magistrate Shri Zungare, for recording statement of deceased Kanopatra. He visited Adhar hospital, Nanded, and recorded statement of deceased Kanopatra. PSI Phule, produced the statement of deceased Kanopatra at Police Station Shivaji Nagar, Nanded. On the basis of her statement, offence vide CR No. 0/2008 was registered, for the offences punishable under Sections 498-A, 307, 323, 504 and 506 of I.P. Code. The MLC issued by Adhar hospital, Nanded and the statement of deceased Kanopatra recorded by PSI Phule, were sent to police station, Palam, as alleged offences took place within its jurisdiction. Accordingly, offence vide C.R. No. 97/2008 for the above said alleged offences has been registered at Police Station Palam on 9th November, 2008 and API Kundankumar Waghmare conducted further investigation.

(v) API Kundankumar Waghmare, visited the house of accused at village Sirpur and conducted panchanama of place of incident. He had collected two plastic cans, burn pieces of saree and blouse, which deceased Kanopatra was wearing. He also collected earth mixed with kerosene and normal earth from the place of incident. He arrested accused nos. 3 and 4 on 10th November, 2008. He arrested the accused no.1 on 11th November, 2008 and accused nos. 2 and 5 on 14 th December, 2008. He sent the muddemal articles to C.A. Aurangabad, for chemical analysis.

(vi) While undergoing treatment, deceased Kanopatra succumbed to the burn injuries on 29 th November, 2008. Accordingly, Apollo Burns hospital issued MLC to Vazirabad Police Station, Nanded, on which the police effected inquest panchanama. Dead body was sent for postmortem and after the postmortem, dead body was handed over to the relatives. Accordingly, the offence punishable under section 307 of I.P. Code was converted to the offence punishable under section 302 of I.P. Code. After recording the statements of material witnesses and collecting sufficient evidence against the accused persons, charge sheet was filed in the Court of Judicial Magistrate, First Class, Palam.

(vii) The offence punishable under section 302 of I.P. code is exclusively triable by the Court of Sessions, therefore, by an order dated 19th September, 2009, the Judicial Magistrate, First Class, Palam, committed the case under section 209 of Code of Criminal Procedure to the Court of Additional Sessions Judge, Gangakhed.

(viii) On appearance of the accused nos. 1 to 5 before the Additional Sessions Judge, Gangakhed, the said Court framed charge against them for the offence punishable under Sections 302, 498-A, 323, 504 and 506 read with 34 of I.P. Code. The accused pleaded not guilty. Accordingly, their plea has been recorded.

(ix) The defence of the accused, which appears from the manner in which the prosecution witnesses has been cross examined and their statements under section 313 of Cr.P.C., is denial and false implication.

As per the defence, at the time of incident the accused no.3 was serving at Jintur district Parhani. The accused no.4 was residing with her husband accused no.3. The accused no.2 was taking education at Parbhani, and accused no.5 was residing at Parbhani, with her husband and in laws. There was no demand on the part of the accused persons. Deceased Kanopatra sustained burn injuries, as her saree caught fire on samovar ( a large vessel for heating water), while heating the water. The accused no.1 with the help of neighbours had admitted her at Adhar hospital, Nanded. It is further defence of the accused that, the relatives of deceased Kanopatra, in collusion with the police officer and the Special Judicial Magistrate, manipulated the dying declaration of deceased Kanopatra.

3. The trial Court, after recording the evidence and hearing the parties, convicted the appellants for the offence punishable under section 498-A read with 34 of I.P. Code and sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs.2,000/- each, in default, to suffer rigorous imprisonment for three months. The original accused nos. 1, 2, 4 and 5 are also convicted for the offence punishable under section 302 read with 34 of I.P. Code and sentenced to suffer imprisonment for life and to pay fine of Rs.5000/- each, in default, to suffer rigorous imprisonment for six months. The trial Court directed that, out of fine amount, Rs. 20,000/- be paid to the PW-1 Govind Deshmukh, as compensation under Section 357(1) of Code of Criminal Procedure.

4. The learned counsel appearing for the appellants submitted that, so far alleged demand of Rs. 1,00,000/- is concerned, there are vague allegations. There are no specific averments regarding illtreatment on the part of any particular accused and evidence is also lacking on that line. Accused nos. 2 to 5 are residing at different places. Accused no.2 was residing at Parbhani at the relevant time for education purpose. Accused nos. 3 and 4 are residing at different places, whereas accused no.5, who is married daughter was residing at the relevant time in her matrimonial house at Chimangaon. It is submitted that, there are no definite findings recorded by the trial Court that, there was harassment to Kanopatra (deceased) by the accused. The trial Court has not properly considered the dying declarations at Exhibit – 65 and Exhibit – 80.

There are material improvement in the subsequent dying declaration, and therefore, benefit of doubt ought to have been given to the appellants. There are omissions in respect of visit of Kanopatra (deceased) at the time of her first Diwali to the house of her parents.

The investigation is totally doubtful on the ground in respect of admission or referral of patient from government hospital Gangakhed to `Adhar’ Hospital Nanded. It is submitted that, in dying declaration recorded by PW-11 PSI Phule Exhibit-64, Kanopatra (deceased) has categorically stated that, her father-in-law had been to Pandharpur for pilgrimage, whereas in dying declaration at Exhibit – 80 recorded by the Special Judicial Magistrate PW-13, she improves statement stating some overt act by father-in-law. It is therefore, stated that, in absence of the father-in-law, accusation of overt act is only with a view to rope total family in the offence.

It is submitted that, no findings are recorded on the aspect that, cruelty and harassment was soon before the death of Kanopatra (deceased). It is submitted that, the relatives of Kanopatra (deceased) were present at the time of visit of PW-11 PSI Phule, and therefore, there is every possibility of tutoring Kanopatra (deceased) by her relatives. It is submitted that, the trial Court in para 61 of the judgment observed that, nothing is before the Court to conclude when he returned to Shirpur from his pilgrimage. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

Therefore, there is reasonable doubt about the presence of accused no.3 on the day of incident. The learned counsel further submits that, evidence of the prosecution witnesses suffers from improvements, omissions and contradictions, and therefore, the same is not believable. It is submitted that, when the benefit of doubt is given to accused no.3, other accused ought to have been given benefit of doubt.

In order to demonstrate that, there are inconsistency in two dying declarations, the learned counsel appearing for the appellants made following submissions:-

a) 1st dying declaration recorded by PW-11, PI Phule on 09.11.2008 at Exhibit-64 wherein the recording of the said dying declaration has commenced at 03.20 p.m.

b) That there is an endorsement on the left hand side it reveals that there is even the stamp of Dr. Sanjay Kadam on left side of the dying declaration and the stamp of the said Doctor also comes on the part and overwriting on the part of dying declaration, to demonstrate the fact and submission of the appellant that the said endorsement is put after completion of recording of dying declaration. Thus, it becomes doubtful as to whether the deceased / declarant was in a conscious state to give statement.

c) That there is no endorsement of the Doctor at the end of the said dying declaration, as to whether the patient / declarant / deceased was conscious during the recording of the dying declaration.

d) That it is not mentioned as to at what time the recording of the 1st dying declaration was completed and concluded, which creates doubt as to whether it was from the mouth of the declarant or not and raises a shadow of doubt on the entire prosecution case.

e) That on the said dying declaration it is mentioned that Station Diary No.40 at 15.30, part-5, C.R.No.0/2008 under Section 498-A, 307, 323, 504, 506, 34 of IPC, and whereas the Station Diary Entry No.40 is made at 15.30 on the basis of the 1st dying declaration would reveal that the recording of the said dying declaration was started at 03:20 p.m. That in the absence of timing of conclusion and the station diary entry immediately within 10 mins itself creates doubt on the entire prosecution case. Further, it has come in the evidence of PW-11 that the said dying declaration was written / recorded by writer, which creates doubt about the recording of the said dying declaration by PW-11 and benefit of doubt lies in favour of the appellants.

f) That the said dying declaration bears the signature of the declarant / deceased, when it reveals from record, inquest panchanama and the impugned order dated 10.02.2014 passed by the learned Additional Sessions Judge, Gangakhed in S.T.No.

21/2009 that, at para no.36, the Judge observes that the hands of the deceased were burnt and admittedly the deceased / declarant had sustained 72% burn injuries.

g) That the declarant states that father-in-law, Appellant No.3, Mr. Bapurao Ganpatrao Kadam had gone to Pandharpur.

h) That material witness Sarubai, whose statement under Section 161 of the Code of Criminal Procedure, 1973 was recorded and the said statement is reflected in charge-sheet and who was the prime and star witness of the prosecution was not examined by the prosecution. That it is stated by deceased that, the said Sarubai told her not to change her clothes of kerosene till her father comes.

i) That in 1st dying declaration the declarant states that, her husband, brother-in-law, villagers like Sutar Raju, Bapurao Deshmukh, Nagu Bhau, Motiram had all extinguished fire and brought her to Hospital in an Autorikshaw.

j) That none of the above independent witnesses have been examined by the prosecution when their statements were recorded and finds place in charge-sheet.

k) That in 1st dying declaration the declarant states that by using a match-stick she was set on fire and whereas, in 2nd dying declaration she states that, (Vatanatil Jalati Parat) farlace for heating hot water was thrown on her person to set her on fire. That the 2nd dying declaration are recorded on the very same day, in the presence of her parents and relatives.

Thus, in the above mentioned background, it is material discrepancy and inconsistency in the 2nd dying declaration in material particulars.

l) ig That in 2nd dying declaration, father-in-law is introduced whereas, in 1st dying declaration it is mentioned that he was at Pandharpur being the month of Shrawan.

m) That the declarant was taken to Civil Hospital, Gangakhed and first aid was given. That the said Doctor from Civil Hospital, Gangakhed is not examined by the prosecution and further, no evidence about medical record / history pertaining to the treatment advanced at Civil Hospital, Gangakhed brought on record by the prosecution.

n) Further, she states that whatever transpired pertaining alleged conflict and confrontation on 8th November, 2008 was listened by neighbors. But, not even a single neighbor examined by the prosecution, who would had been independent witness.

The learned counsel appearing for the appellants, in support of his contention that, when there are inconsistency in the dying declarations, then the benefit of doubt should be given to the accused, pressed into service the following expositions of the Bombay High Court and also the Supreme Court in the case of

  • State of Maharashtra Vs. Uttam Karbhari Dhage & another 1,
  • Sunil Kashinath Raimale Vs. State of Maharashtra 2,
  • Abdul Riyaz Abdul Bashir Vs. State of Maharashtra 3,
  • Burakhbee Vs. State of Maharashtra 4,
  • Thurukanni Pompiah & anr. Vs. State of Mysore 5,
  • Dada Machindra Chaudhar & Ors. Vs. State of Maharashtra 6,
  • Shivkumar Maruti Umardand Vs. State of Maharashtra 7,
  • Shakuntalabai Khairuprasad Joshi and Anr. Vs. State of Maharashtra 8,
  • http://evinayak.tumblr.com/ https://vinayak.wordpress.com/ http://fromvinayak.blogspot.com
  • Shaikh Bakshu & Ors. Vs. State of Maharashtra 9,
  • Mohan Lal & Ors. Vs. State of Haryana 10,
  • Dandu Lakshmi Reddy Vs. State of A.P. 11,
  • The State of Maharashtra Vs. Raghunath Ramchandra Sable in Criminal Appeal No.154 of 1996 decided on 29 th June, 2015, Anusaya Atmaram Kasbe Vs. The State of Maharashtra in Criminal Appeal No.1536 of 2011 decided on 13th October, 2014, Dhanraj Jairam Patil Vs. The State of Maharashtra in Criminal Appeal No.589 of 2009 decided on 23rd February, 2011, Tukaram Dashrath Padhen & Ors. Vs. State of Maharashtra 12,
  • Vilas Vikramsingh Deshmukh & Ors.Vs. The State of Maharashtra13 and
  • Kushal Rao Vs. State of Bombay14.

1 1997 Cri.L.J.2513
2 2006 Cri.L.J.589
3 2012 Cri.L.J.3277
4 2006 Cri.L.J.3128
5 1965 (2) Cri.L.J. 31 (Vol.71, C.N.6)
6 1999 Bom.C.R. (Cri.) 601
7 2009 Cri.L.J. 2549
8 2011 Cri.L.J. 1819
9 2007 AIR SCW 4120
10 AIR 2007 SC (Supp.) 1139
11 AIR 1999 SC 3255
12 2012 All MR (Cri.) 2754
13 2013 All MR (Cri.) 3145
14 AIR 1958 SC 22 (1)

Therefore, the learned counsel appearing for the appellants submits that, the appeal may be allowed.

5. On the other hand, the learned Additional Public Prosecutor appearing for the Respondent/State invited our attention to the contents of the dying declaration at Exhibit – 65 and Exhibit -80 and submits that, both dying declarations are consistent with each other and there are no material contradictions, and therefore, the trial Court has rightly believed the dying declarations and convicted the appellants. It is further submitted that, the evidence of PW-1 and PW-2 and other relatives of the deceased unequivocally indicates about the illegal demand and alleged illtreatment and harassment at the hands of the accused, and therefore, the accused are rightly convicted by the trial Court under Sections 498-A and 302 r/w 34 of the I.P. Code. It is submitted that, apart from two dying declarations, there is oral dying declaration given by Kanopatra (deceased) with PW-1 and PW-2. Therefore, he submits that, the appeal may be dismissed.

6. We have heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the Respondent/State at length. With their able assistance, we have perused the entire notes of evidence as to re-appreciate the evidence.

7. The prosecution examined father of deceased as PW-1. In his deposition before the Court, he stated that, the marriage of Kanopatra (deceased) was performed with accused no.1 Sunil on 11 th May, 2006 at village Takali Kumbhakarna. Rs. 2,00,000/- was given as dowry. After marriage, his daughter went to reside at village Shirpur, Tq. Palam along with husband and his family members. For period of six months, she was treated well. He further stated that, thereafter accused started harassing his daughter.

They used to say deceased that, at the time of marriage, pendol was not properly erected, her father is beggar and dowry was paid less and deceived them and on that count they used to illtreat her. Husband of deceased used to beat her at the instance of other accused. After first Diwali festival, she was brought to their house and at that time, she told PW-1 and his family members about the illtreatment and harassment by the appellants. After convincing her, they sent her back to Shirpur and thereafter all the accused said whatever had happened should be forgotten and PW-1 should give Rs.1,00,000/- for digging well in their field.

PW-1 went to Shirpur after one month and he said accused that, he performed marriage of his daughter by taking loan and he was not having money and thereafter he came back. Thereafter, he brought his daughter to Takli Kumbhakarna for her delivery. She begotten a daughter. Kanopatra (deceased) told that, accused used to beat and illtreat her so she apprehends. When, Kanopatra (deceased) was reached to her in-laws house, her brother-in-law accused Sandeep bet her by throwing Radio. Accused Sandeep abused and bet her saying “Tumchi Khandan Awara Aahe, Tumhi Halkat Lok Aahet, Tumhi Pratistith Lok Nahi.”. Mother-in-law and sister-in-law were used to insult deceased and at their instance, husband of deceased used to beat her. He used to visit house of deceased after intervals of one month, therefore, he came to know about illtreatment and harassment by the appellants to the deceased. He brought his daughter for Diwali of the year 2007. She stated that, her husband used to beat her and used to give threat to kill her, and therefore, she told him not to sent her back to matrimonial house. However, after convincing her they sent her to matrimonial house. It is also stated that, in the year 2008, he invited father-in-law, brother-in-law and husband of her daughter for Kandori. Husband and father-in-law of accused Savita had also come for Kandori. At that time, accused no.1 asked him about money and he told that, he would pay Rs. 50,000/- after selling cotton in this year and in next year he would pay remaining amount of Rs. 50,000/- and thereafter, the appellants left the house of PW-1. Her daughter was brought for festival of Diwali in the year 2008 at Takli Kumbhakarna. After 10 to 15 days, they sent her back with Baban Deshmukh, who is cousin brother of Kanopatra. In the night, accused no.1 bet deceased. On 09.11.2008, PW-1 received mobile call from Pralhad Kishanrao Deshmukh that, his daughter is burnt and asked to come to Takli Kumbhakarna. They went to Takli Kumbharkna, along with nephew Ashok Deshmkh and his other relatives. Thereafter, they went to Gangakhed and there it was informed that, Kanopatra (deceased) is admitted in Adhar Hospital at Nanded. They reached at Adhar Hospital, Nanded but Police did not allow them to enter in the hospital. After about half hours, they were called in a room where her daughter was admitted. They saw her both hands, legs, back were burned. After about half hour, her daughter told that, her husband had beaten her in night. In the morning when she awoke, her husband and brother-in-law poured kerosene from two Cans on her person, sister-in-law caught hold her hands and mother-in-law threw a burning match-stick. At that time, father-in-law had gone to Pandharpur. She stated that, there was attempt to kill her. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. PW-1 was cross-examined at length by the Advocate for the accused. In his cross-examination, he admitted that, when he made enquiry before marriage, at the relevant time father-in-law of the deceased was serving at Zilla Parishad, Parbhani and thereafter he served at Jintur. At that time, the accused were having 18 acres of land. There was one well and work of other well was going on. For two times, he visited their land. One land was shown to him. He denied that, he was having knowledge that, there were two wells in the field of accused. He further stated that, father-in-law of deceased is pious person (Malkari). He admitted that, marriage of accused no.5 Savita is performed prior to marriage of his daughter. Savita resides at Parbhani.

Her husband Santuk is originally resident of Chimangaon, Tq. Sailu. Father of Santuk Deshmukh is serving at P.D.C.C. Bank at Parbhani. Xerox center of husband of Savita is near his office and her residence is behind his office. Since last 7 to 8 years, there is xerox center near his office. He know husband of accused No.5 – Savita since marriage of his daughter. He visited their house once along with his wife and daughter.

After birth of Vaishnavi daughter of Kanopatra, he had been to house of accused No.5. He did not know for what purpose, deceased had come to house of accused no.5. He further stated that, since 11 th May, 2006 to 8th November, 2010, he did not lodge any complaint against the accused. He admitted that, within half and hour, it is possible to reach to Nanded from Basmath and his brothers and accused reached Nanded at about 10 to 10.30 a.m. It appears that, suggestion was given to PW-1 that, when they all reached to Nanded, his daughter told that, her Sari caught fire in the morning when she was alighting furnace for hot water. He further stated that, accused no.1 had deposited Rs.15,000/- in the private hospital soon she was admitted. Since the time of incident till 19 th November, 2008, he did not lodge any complaint either to Palam or Nanded Police Station. He further stated that, accused no.5 was residing with her husband at Parbhani.

However, he denied suggestion that, on the day of incident, she was at Parbhani. He further stated that, since 9th November, 2008 upto 29th November, 2008, Kanopatra was alive. During that period, he did not go to the house of the accused and did not ascertain the place of incident and when and where incident occurred. Suggestion was given to him that, since it was accidental death, therefore, he did not ascertain about the incident, is denied by him. On 19 th November, 2008, his statement was recorded by the Police from Palam Police Station. He denied that, he stated before the Police that, when Kanopatra was brought to the house, she disclosed about illtreatment and after convincing her, she was sent back to the house of the accused. He further stated that, he did not tell the Police that, after every month, he used to visit house of accused and deceased used to tell about illtreatment. He did not tell that, deceased disclosed that her husband used to beat her and give threats to kill Kanopatra so she apprehends danger to her life and told not to send her back to in-laws house. He denied the suggestion that, Kanopatra never told him about the incident of illtreatment and harassment.

9. Ashok Jagnnathrao Deshmukh was examined as PW-2. In his deposition, he stated that, Kanopatra was her cousin sister. So far allegations of harassment and illtreatment are concerned, in his examination-in-chief, he has made similar allegations like PW-1. Sum and substance of his allegations is that, all accused used to illtreat and subject Kanopatra to mental and physical harassment. They used to illtreat her for the reasons that, no proper arrangement was done at the time of marriage. Dowry was paid less.

They used to say that, relatives of deceased were not of standard status as like accused. Accused used to tell deceased that, her relatives of Takli are beggars. There was demand of Rs. 1 Lakh. He has also stated that, Kanopatra told them about the incident happened on 09.11.2011.

10. During his cross-examination, he admitted that, Bapurao Kadam, father of accused no.1 was serving at Jintur at the time of incident and he was serving at Parbhani at the time of marriage. He did not know whether accused Sandip was taking education of D.Ed. course in the year 2008. Accused no.5 Savita resides at Parbhani. He further stated that, he did not know the place of residence of her in-laws.

11. Meera Govindrao Deshmukh, mother of Kanopatra was examined as PW-3. In her examination-in-chief, more or less similar allegations of illtreatment and harassment are stated by her like PW-1 and PW-2. She also stated that, Kanopatra narrated the incident dated 09.11.2011. However, during her cross-examination, she admitted that, none of them lodged the police complaint for harassment and illtreatment earlier. She further admitted that, their statement was recorded after 10 days by the Police. So far Savita is concerned, she stated that, Savita had son of about 4 years. She used to reside at Parbhani.

12. One Baban Ganeshrao Deshmukh was examined as PW-4. In his examination-in-chief, he stated that, deceased Kanopatra was his nice. He has also stated that, Kanopatra used to tell about illtreatment and harassment at the hands of the accused, as stated by PW-1 to PW-3. One day before the day of incident, he went along with Kanopatra to her in-laws house. He went their on 8th date and after leaving Kanopatra to matrimonial house, he left the said house on the same day and on the next day morning at 9 a.m., he came to know about the alleged incident of burning Kanopatra. He also admits in his cross-examination that, earlier no complaint was lodged about illtreatment or harassment. He stated that, he did not tell before the Police that, deceased told to her father that her in laws were demanding money and her father told them that, he was not having money as he had performed marriage of her daughter. He did not tell to police that, on next day at 9.00 a.m. in morning, he came to know that, Kanopatra was set on fire and that, her parents had been to Basmath. It appears that, the portion mark `A’ from the police statement was read over to him and he stated that, he cannot assign any reason as to why the police have written the said portion in his police statement.

13. The evidence of PW-1 to PW-4 is to the effect that, Kanopatra whenever visited the house of her parents or when somebody from her parental house went to her house, told about illtreatment and harassment caused to her at the hands of accused persons. However, all the witnesses have stated that, prior to date of incident, no single complaint is filed about the illtreatment or harassment to Kanopatra. PW-1 to PW-4 all have stated that, Savita i.e. sister of husband Sunil Kadam is already married and residing at Parbhani and have four years child. It appears that, the Police have recorded their statements almost after 10 days from the date of incident. It also appears from the evidence of PW-1 that, he never made attempt to lodge the complaint at the earlier stage though the alleged incident had taken place on 09.11.2008. It is only when recording of the statements by the police, they have disclosed about the illtreatment, harassment and manner in which the incident had taken place as narrated by Kanopatra. It has also come on record through the evidence of PW-1 that, family of the accused persons possesses 18 acres of land and already there is one well situated in the agricultural land. PW-1 has categorically stated that, his statement was recorded by police at the hospital at Nanded on 19.11.2008. Police of Palam recorded his statement on the said date. The prosecution has not placed on record any reasons for not recording the statement of PW-1 to PW-4 and other relatives till 19.11.2008 though alleged incident had taken place on 09.11.2008.

14. There are two officially recorded written dying declarations of Kanopatra. The statement at Exhibit-64 is recorded on 09.11.2008 at about 11.15 p.m. Upon careful perusal of the said statement, it appears that, there is endorsement of medical officer that, patient is in a conscious state to give the statement. The said statement was recorded by P.S.I. Police Station, Shivajinagar, Nanded. It appears that, crime was registered on the basis of the said statement. It further appears that, so far alleged incident is concerned, there is Station Diary entry at Sr. No.40 at 15.30 hours and offence was registered under Sections 498A, 307, 323, 504, 506, 34 of the I.P. Code against the accused. It further appears that, subsequently when Kanopatra was died, Section 302 of I.P. Code was added by the Investigating Officer.

15. Upon careful perusal of the dying declaration, it appears that, the marriage of Kanopatra was performed with Sunil Bapurao Kadam accused no.1 on 11th May, 2006. According to her version, the amount of Rs. 2 Lakh was given as a dowry as per customs. She begotten one daughter Vaishnavi from their wedlock, whose age was one year at the relevant time. She was carrying pregnancy of three months on the date of incident. Her father Govindrao Vishwanathrao Deshmukh was serving in Irrigation Department at Parbhani. She alleged that, since the date of marriage, accused persons started demanding Rs. 1 Lakh so as to dig well in their land and on that count they used to mentally and physically illtreat and harass her. Whenever, she used to visit house of her parents, she used to tell them about the illtreatment and harassment at the hands of the accused persons. She has specifically stated that, before Dipawali, husband Sunil and brother-in-law Sandeep abused her and assaulted her. Thereafter, she went to the house of her parents at Takali Kumbhakarna.

16. She further stated that, on 08.11.2008, her cousin uncle Babanrao Ganeshrao Deshmukh accompanied her to come to Shirpur. He left her in her matrimonial house at about 6 p.m. At the relevant time, mother-in-law Shobha, sister-in-law Savita were present in the house. Father-in-law Bapurao went to Pandharpur for Darshan. Husband Sunil was not present at that time and he had gone to agricultural field. Brother-in-law Sandip was in the village. In the evening at about 7 p.m., husband Sunil came in the house and asked Kanopatra that, why her father has not come to accompany with her to matrimonial house. How the maternal uncle came and whether, she has brought Rs. 1 Lakh for digging well. Sunil started assaulting her. At about 10 p.m., brother-in-law Sandeep came to the house and started abusing her. He asked her to vacate the house along with child. Neighbours were knowing about the quarrel which has been taken place.

17. So far actual incident is concerned, she stated that, on 09.11.2008, Sunday, at about 7 a.m., she woke up from the sleep, and came to ground floor from the first floor of the house. Nobody from the matrimonial side was talking to her. After some time, husband and brother-in-law started abusing her in filthy language. Husband stated that, he will kill her by pouring kerosene and brother-in-law was instigating her husband to pour kerosene on her. Husband as well as brother-in-law poured kerosene from two different white Cans on her person. At that time, wife of Ganya, Sarubai came there. Husband and brother-in-law went outside. Sarubai mentioned that, sari of Kanopatra was smelling kerosene. Then Kanopatra told her that, said kerosene is poured by the husband and brother-in-law. Sarubai said, do not change her sari till her father arrives. Again husband and brother-in-law came in house and asked the sister-in-law Savita and mother- in-law Shobha to set her ablaze by enlightening match-stick. Sister-in-law Savita caught hold her and mother-in-law Shobha set her on fire by enlightening the match-stick. She started crying and ran away. At that time, husband, brother-in-law and other persons from village namely Raju, Bapurao Deshmukh, Nagubhau and Motiram came and tried to extinguish the fire. In that, her entire back portion, both hands, portion below waist have been burnt and she was admitted initially in Government hospital, Gangakhed and thereafter she was taken to Adhar hospital, Nanded for further treatment. She was in Burn Ward B-1 wherein she was being treated. The said incident had happened at 8 a.m. in the matrimonial house and her husband, brother-in-law, mother-in-law and sister-in-law have abused her by saying that, as to why Rs. 1 Lakh have not been brought from the parents for digging well, and as to why father of Kanopatra did not come for dropping her. Husband, brother-in-law have poured kerosene on her person, sister-in-law caught hold her, mother-in-law set her on fire by enlightening matchstick and tried to kill her.

The official translation of Dying declaration at Exhibit – 64 dated 09.11.2008 is as under :-

EXH.64 Adhar Hospital Nanded
S.T.21/09 Date : 09-11-2008.
Art.”B”
ig

STATEMENT

I, Sow.Kanhopatra W/o Sunilrao Kadam, age:24 years, Occup. household, r/o Shirpur, Taluka Palam, Police Station Palam, Dist.Parbhani on asking personally give this statement in writing that I am resident of aforesaid place. My marriage has been solemnized with Sunil Bapurao Kadam at my matrimonial home at village Takli Kumbhkarn on dated 11-05-2006 by giving rupees two lakh as dowry according to the custom. I have a daughter namely Vaishnavi who is one year old. Presently I am conceiving three months’ pregnancy. My father Govindrao Vishwanathrao Deshmukh is serving in Irrigation Department at Parbhani.

Since my marriage, my in-laws i.e. (1) Bapurao Ganpatrao Kadam – father-in-law, (2) Shobhabai W/o Bapurao Kadam – mother-in-law (3) Sunil Bapurao Kadam – husband, (4) Sandeep Bapurao Kadam – brother-in-law, (5) Savita W/o Santukrao sister-in-law have started torturing mentally and physically by saying to bring Rs. one lac from my parents for digging a well in their field. Whenever I use to come to my maternal home, I use to say it to my parents. On the eve of last Diwali festival my husband Sunil and brother- in-law Sandeep had abused and assaulted me for the above reason. When Diwali festival about to 8 days away my father Govindrao Vishwanathrao Deshmukh came to my matrimonial home at Shirpur and he took me to my maternal home at Takli And my uncle named Babanrao Ganeshrao Deshmukh has left me yesterday on 08-11-2008 at Shirpur at my matrimonial home at 06.00 p.m. approximately and went away. At that time my mother-in-law Shobha and my sister-in-law Savita were present. Father-in-law – Bapurao had gone to Pandharpur for darshana. Husband Sunil had gone to field and brother-in-law Sandeep was in village. At about 7.00 p.m. husband Sunil came to home and told me that my father ought to have come to leave you here. As to how your uncle came ? By asking “Did you bring one lakh rupees for digging a well in the field and started abusing and assaulting. “At about 10.00 p.m. brother-in-law Sandeep came and he too abused and told me not to sleep in the house and told to go out. Therefore, I, taking my little baby went on the first floor of the house but I could not get sleep. However, the incident taken place at night and the assault received by me came into the knowledge of our neighbors.

Today on Sunday dated 09-11-2008 I woke up at 7.00 a.m., step down from the first floor, nobody from my in-laws were talking with me. After sometime, my husband Sunil and brother-in-law came there and started abusing. Husband told me that I would be burnt alive by pouring kerosene and I would be killed. Brother-in-law was also saying him to pour kerosene on my person. They both took kerosene from the white plastic can and poured it on my person. meanwhile wife of Ganya – Sarubai came there, then husband In the and brother-in-law went away. She asked me saying that there is a smell of kerosene coming from my saree. I told her that it was poured by my husband and brother-in-law. She told me not to change my saree till my father come and thereafter she went away. Thereafter again husband and brother-in-law came in the house and they asked Savita – sister-in-law and Shobha mother-in-law to set the fire stick on me. Thereupon sister-in-law Savita caught me and mother-in-law Shobha set me on fire. I was crying and running. At that time, husband, brother-in-law and persons of village viz. carpenter Raju, Bapurao Deshmukh, Nagubhau, Motiram came there and tried to extinguish the fire. Wherein my entire back, both hands and complete portion below my waist have been burnt. They took me initially to the Govt. Hospital, Gargakhed and thereafter for further treatment admitted me at Adhar Hospital which is located in the Shivaji Nagar area at Nanded. My treatment is going on there in the Burn Ward B/1. Said incident has taken place approximately at 08-00 a.m. in the house at Shirpur.

Therefore today on dated 09-11-2008 at about 08- 00 a.m. in the house at Shirpur my husband Sunil Bapurao Kadam, (2) brother-in-law Sandeep Bapurao Kadam, (3) mother-in-law Shobhabai W/o Bapurao Kadam, (4) sister-in-law Savita W/o Santukrao all these persons have abused by saying that as to why rupees one lakh for digging a well have not brought from your parents, and as to why your father did not come with you for dropping me. Husband Sunil Bapurao Kadam, brother-in-law Sandeep Bapurao Kadam both have poured kerosene on my person, sister-in-law Savita W/o Santukrao caught me, mother-in-law Shobhabai W/o Bapurao Kadam burnt fire stick at me and set me on fire and tried to kill me alive.

My aforesaid statement is written as per my narration, read over to me which is true and correct Before me. Sd/-

Sd/- Kanhopatra
Police Sub Inspector,
Police Station, Shivaji Nagar,
Nanded.
Date : 09-11-2008
Police Station Entry No.40, time : 1530 recorded.

Part 5, C.R. No.0/08 U/Sec. 498-A, 307, 323, 504, 506, 34 IPC have been registered and since the incident took place in the jurisdiction of Police Station Palam, it was referred to that Police Station.

Sd/-

( B.J.Phule ) Police Sub Inspector, Police Station Shivaji Nagar,Nanded.

18. The second Dying declaration was recorded on 09.11.2008 by the Special Judicial Magistrate, Nanded. In this dying declaration, role is assigned even to the father-in-law. The specific allegations have been made against him. However, in earlier dying declaration at Exhibit-64, she stated that, father-in-law had gone to Pandharpur for Darshan.

So far incident dated 08.11.2008 is concerned, when Kanopatra reached to matrimonial house on said date, she stated that, her uncle went to their farm to meet her husband and told him that, he has brought Kanopatra, and went away. It is further stated that, in the evening, when her husband returned, he started beating her inhumanly saying why she had returned and that, she should go away. He held her hair and started hitting her head on the wall.

When she replied that, child is having fever, husband said that, he is nothing to do with child. He does not care if the child dies. She further stated that, after some time, her father-in-law, mother-in-law, brother-in-law and sister-in-law returned home. Her father-in-law Bapurao said to her husband that, as to why he take her inside the home and other accused started saying the same thing to her husband. That time, father-in-law, brother-in-law, mother-in-law and sister-in-law said that, they will do away with her and will come out of jail by bribing. By saying this, they started beating her and throughout night her father-in-law, mother-in-law and sister-in-law were whispering and troubling her. This is what Kanopatra has stated about the incident of ill-treatment and harassment to her on 08.11.2008 in dying declaration recorded at Exhibit-80. However, when the dying declaration at Exhibit-64 was recorded, she attributed role to only husband and brother-in-law. It is stated that, the husband asked her why her father was not accompanied with her to leave her to matrimonial home and asked her to leave the house. He asked her, whether she has brought one lakh rupees, for digging a well in the field, and started abusing and assaulting. Thereafter, brother-in-law came at 10 p.m. and abused her. Therefore, even about the allegations, which relates to alleged incident dated 08.11.2008 during the evening/night is concerned, there is substantial variance in her version/in two dying declarations.

19. So far actual incident on 09.11.2008 is concerned, in dying declaration recorded at Exhibit-64, she has not attributed the role to father-in-law and she stated that, on that day, father-in-law went to Pandharpur for Dharshan. As alleged in the said dying declaration, the husband said that, she will be burnt by pouring kerosene and husband and brother-in-law poured kerosene on her person from two separate white plastic Cans and meanwhile, one Sarubai came there and then Kanopatra had conversation with her, and then Sarubai left and thereafter again husband and brother-in-law came in the house and asked Savita -sister-in-law and Shobha mother-in-law to set her on fire. Thereafter, sister-in-law Savita caught hold her and mother-in-law Shobha set her on fire. However, in dying declaration at Exhibit-80, she stated that, she got up on 09.11.2008 in the morning and sat down with child. No family member was talking to her. She stated that, her father-in-law asked husband and brother-in-law to caught hold her and get her inside. Father-in-law held her hand, brother-in-law and husband poured kerosene on her person from two plastic cans and out of fear of people suspecting father-in-law, husband and brother-in-law went outside the house. She started going outside the house to save herself, but at that time, her sister-in-law caught her tightly and mother-in-law took out a burning stick from the kiln and put it on her. Her whole body was on fire. Then she went outside the house. Thereafter, people rushed to the house and tried to extinguish the fire on her body. Thereafter, husband, brother-in-law and the neighbours took her to Gangakhed Government Hospital by a goods tempo/auto and admitted there. Thereafter she was shifted to hospital at Nanded for treatment. The official translation of dying declaration at Exhibit-80 dated 09.11.2008 is as under:-

Exh.80 Dying declaration of Sou.Kanhopatra W/o Sunil Kadam, age:24 years, R/o Shirpur, Taluka Gangakhed, District Parbhani admitted in Aadhar Hospital, Nanded referred by H.C. Madrewar, B/N. 538, P.S.Shivaji Nagar, Nanded in M.L.C. No.22/SSK/08 dated 09-11- 2008.

***********************************************************
Dying Declaration. Identification is given by Dr.Sanjay Kadam that patient is ready to deliver Dying Declaration.

D.D. started on 09-11-2008 @ 16=30 p.m. Patient is conscious and mentally fit to give statement.

Sd/-

09-11-08 at 4.30 p.m. Q.1 : Do you know that I am a Magistrate ?

Ans : Yes.

Q.2 : What is your name ? Age ? Where are you from ?

Ans : Sou.Kanhopatra Sunil Kadam, age:24 resident of Shirpur,Tal.Gangakhed, Dist.Parbhani.

Q.3 : When and where did the incident took place ?

Ans : The incident taken place on 09-11-2008 approximately in the morning between 8.00 to 8.30 at Shirpur at my residence.

Q.4 : How did the incident take place ? You may tell whatever you want to say regarding the incident ?

Ans : From the time of my marriage I was harassed by my in-laws. I had always been beaten by my husband and his brother. At the time of last Diwali my father and my maternal uncle came to take me to my maternal home. My father-in-law, my husband and my brother-in-law quarrelled with my father. I told my father that I could understand that my husband could beat me or abuse me sometimes but as to why my brother-in-law beats me and abuses me. That time my father-in-law replied that they have one time returned from jail. We are not afraid of going to jail again. What will you do if, we get your daughter killed from a contract killer. My father took retreat, requested them and brought me and my child to my maternal home. After Diwali, I told my father that I am afraid of my in-laws. There is a threat to my life. That time consoling me and asking me not to worry and telling that they will not do anything I was sent with my uncle, Babanrao to my home at Shirpur yesterday on date 08-11- 2008. My uncle went to our farm, met my husband, told him that he has brought Kanhopatra and went away. In the evening when my husband returned, he started beating me inhumanly saying why I have returned and that I should go away. He held my hair and started beating against the wall. He started saying that I should go away from the house. I said I will not go I told him that my child is having fever. My husband said what do I have to do with it. I do not care if the child dies go outside the house and do not come in. I went on the upper floor and sat there with the child. After some time my father-in- law, mother-in-law, brother-in-law, sister-in-law returned home. My father-in-law Bapurao said to my husband as to why did he take me inside the home. Brother-in-law Sandip, mother-in-law Sau.Shobha and sister-in-law Savita Santosh all of the above started saying the same thing to my husband. That time my husband said what happen if I have taken her inside, it is in our hands to do away with her. That time my father-in-law, brother-in- law, mother-in-law and sister-in-law said that we will do away with her and will come out of jail by bribing. By saying this they started beating me. After continuous beating they went on to one side. I took my child and laid down with my child. All the night my mother-in-law, father-in-law, brother-in-law, sister-in-law were whispering I was scared of them and could not sleep all the night. I got up at 7-00 in the morning and sat down with the child after washing my face / brushing. No one was taking to me. My father-in-law said to my husband and brother-in-law, clutch her and get her inside. Father-in-law held my hand, brother-in-law and husband poured all the kerosene on me from two plastic cans and for the fear of people suspecting father-in-law, husband and brother-in-law went and stood outside the house. I started going outside the house to save myself. But at that time my sister-in-law caught me tightly and mother-in-law took out a burning stick from the kiln and put it on me. My whole body was on fire. Apprehending danger to them, and that they also could catch fire mother-in-law and sister-in-law ran outside. People came running and tried to extinguish the fire on my body. My husband, brother-in- law and the neighbors took me to the Gangakhed Govt. hospital by a goods tempo / auto and admitted there. From there they took me to this hospital in Nanded and admitted me there and started the treatment.

Q.5 Do you want to tell anything else ?

Ans My father-in-law, husband, brother-in-law, mother-in-law, sister- in-law have set me on fire by the motive of burning me alive.That is why they should be given maximum punishment. So that no one should do such type of injustice. This is what I have to say. My abovesaid statement has been noted as told by me. It has been read over to me. It is true and correct.

Sd/-

(Mrs.Kanhopatra Sunil Kadam ) R/o Shirpur, Tal.Gangakhed.

D/D is recorded as per say of patient. It is read over to her. She admitted that contents of D.D. are true and correct. I believe that D.D. is given voluntarily, it is true and correct on 09-11-2008 @ 17=40 P.M.

Sd/-

P.N.Zhunjare, Spl.Judicial Magistrate Nanded.

20. As already discussed, upon perusal of the contents of both the dying declarations, there is inconsistency and also variance. In the second dying declaration, father-in-law is introduced, whereas in the first dying declaration, it was mentioned that, he was at Pandharpur being the month of Shrawan for Darshan.

21. The prosecution examined Dr.Avinash Digamber Puri, the medical Officer, Government Medical College, Nanded. During his cross-examination, he stated that, no cause of burning is mentioned in the inquest. He has not mentioned age of injuries in memorandum of P.M. He did not call details about when patient was admitted and for how much period she was indoor patient in the Apollo hospital. As per his report, there were no injuries on the head, neck and face and only 2% injuries were on chest and abdomen. Lower extremities and back were having more percentage of burn injuries. He has given specific admission that, if a woman from rural area burnt while setting fire to furnace used for hitting water, such type of injuries are possible, due to accidental burn. If two persons caught hold a lady, poured kerosene on her person and set fire, 100% injuries may or may not be possible. He has given specific admission in his cross-examination that, he could not differentiate the burn as homicidal, suicidal or accidental. It may or may not be possible that, head, neck, face of a lady remained unburnt, if she is caught hold of two or more persons and set on fire by pouring kerosene on her persons.

Direction of flame of burning of a person, is usually to upper side.

22. Therefore, upon careful perusal of the cross- examination of PW-5, it is abundantly clear that, he could not differentiate the burn as homicidal, suicidal or accidental. Further he opined that, if deceased was caught hold by two or more persons and set on fire by pouring kerosene on her person, the direction of flame of burning of a person is usually to upper side.

However, in the present case, it is abundantly clear that, as per report of PW-5, there was no injuries on head, neck and face and only 2% injuries were on chest and abdomen. Therefore, the allegation that, brother-in-law and husband poured kerosene from different Cans and then she was set on fire appears to be improbable, in the sense that, if two cans of kerosene is poured on the body and if person is set on fire, certainly there would be injuries on neck, head, face and also on chest and abdomen due to flame of burning of a person, is usually to upper side.

23. PW-5, further stated in the cross-examination that, all burnt patients are treated by Surgeon. He further stated that, he did not call any opinion from Surgeon, in order to ascertain age of injury. He feel that, it is not necessary to call opinion from the Surgeon. He further stated that, he did not know whether it is necessary to mention the age of injuries in P.M. report as per directions of medical Board.

24. So far opinion expressed by PW-5 that, he cannot differentiate the burn as homicidal, suicidal or accidental, the Bombay High Court while considering the prosecution case based upon dying declaration, in the case of Shakuntalabai (supra) held that, the burn injuries received by the deceased could be accidental, suicidal or homicidal, the prosecution is required to establish homicidal death by bringing positive evidence on record. Therefore, in the present case also, it was necessary for the prosecution to bring on record the positive evidence so as to establish the homicidal death.

As already discussed about the dying declaration at Exhibit-64, Kanopatra stated that, father-in-law went to Parbhani. It means he was not present on the date of incident in the house. However, in dying declaration Exhibit-80, she attributed specific role to father in law.

The Bombay High Court in the case of State of Maharashtra V/s Uttam Karbhari Dhage (supra) in para no.14 held thus :-

“14. We would like to emphasize that, where an integral part of the dying declaration is false, the residual part cannot be accepted, on the principle that, falsus uno falsus omnibus is not a rule applicable to our country. The rationale behind this is that, unlike ocular evidence, a dying declaration cannot be tested on the anvil of cross-examination. Once the Court is convinced that, an integral part of the dying declaration is false inasmuch as, an accused person has been falsely named therein, the principle that, truth sits on the lips of the dying man on which is founded the rationale of accepting a dying declaration cannot be pressed into service for salvaging the residual portion of the dying declaration. In other words, the same dying declaration cannot be accepted against a co- accused. We are fortified in our view by the observations contained in para 9 of the judgment of the Apex Court reported in AIR 1965 SC 939 (1965(2) Cri. LJ 31): Thurukanni Pompiah V/s Stat of Mysore, which read thus :

“………… If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased’s version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration …………”

25. In the case of Dada Machindra (supra), it is held that, in case based upon the dying declarations i.e. the dying declarations recorded by the Executive Magistrate and by Police Officer, discrepancies and variations found in both dying declarations regarding number of persons pouring kerosene and the number of persons setting deceased on fire, the evidence showing deceased might have been tutored or her faculties were impaired and conviction of accused on the basis of the said dying declarations, is not proper.

The Supreme Court in the case of Mohan Lal (supra) in para 9 has laid down law in respect of appreciation of evidence when the prosecution case is based on dying declaration. The para 9 of the said judgment is as under :-

“9. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on his death-bed, being exceedingly solemn, serene and grave, is the reason in law to accept the veracity of his statement. It is for this reasont hat the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence.”

In the said case, the Supreme Court has in para 11 further held thus :-

“11. In the instant case, it is to be noted that the evidence of PW-3 and doctor clearly show that before the dying declaration was recorded the relatives of the deceased including PWs-7 and 8 were present with her and were subsequently asked to leave the room where the dying declaration was recorded. Though much was made of the dowry demand by the courts below there is only a vague reference to it in the dying declaration. The statement of PWs 7 and 8 that they had told the Investigating officer about the dowry demand is not correct. They had not said so before the Investigating Officer. It is also significant that prior to the death, neither the deceased nor her parents had complained to the police or told anyone else about any alleged dowry demand. In the circumstances, the dying declaration itself was clearly the result of tutoring and was not a free and voluntary one. The courts below ere therefore not justified in placing reliance on the same. Additionally, there was only a vague reference of dowry demand to the police which in any event has not been established and also was not told during investigation. Once the dying declaration is excluded, there is nothing to implicate the accused-appellants with the death.”

26. In the present case, though the evidence of PW-1 to PW-4 suggest that, they went to see Kanopatra in the hospital at Nanded and they were not allowed to enter in the hospital upto 5 p.m., but it has come in the evidence of Investigating Officer Babu Jyotibarao Phule, PW-11 that, when he went towards the patient, her parents and other relatives were present. PW-11 has recorded the dying declaration of Kanopatra at Exhibit-64. Therefore, the said dying declaration may be result of tutoring. The Bombay High Court in the case of Sunil Raimale (supra) as already observed in para 11 that, in case of presence of relatives, possibility of tutoring cannot be ruled out and in that case, the dying declaration cannot be free from doubt. In the facts of the present case, as stated by PW-1, PW-4 and PW-10 in their statements, there was demand of Rs. 1 Lakh from the accused persons after 5-6 months from the marriage. However, they did not lodge any complaint about illtreatment and harassment. Even their statements are recorded by the police after 10 days from the date of incident. It has come on record from the evidence of PW-1 that, he did not go to complain but police on their own recorded their statements. On the day of incident, out of wedlock of Sunil and Kanopatra one child was begotten and Kanopatra was carrying pregnancy of 3-4 months.

PW-1 to PW-4 and PW-10, in their evidence stated about illtreatment and harassment on account of not erecting good pendol in the marriage. However, those allegations deserve no consideration, since no attempt was made by the prosecution witnesses to lodge any complaint, and therefore, such belated attempt to make such allegations has no substance. So far demand of Rs. 1 Lakh is concerned, it has come in the evidence of PW-1 that, family of the accused owns 18 acres of land and already there is one well. According to defence, there are already two wells. It has come on record that, PW-3 was serving in Zilla Parishad, Parbhani and thereafter he served at Jintur. It further appears from the evidence on record that, the land belongs to the accused to some extent is irrigated. Therefore, the demand of Rs. 1 Lakh is difficult to believe and accept.

PW-1 to PW-4 have admitted in their evidence that, accused no.5 Savita got married even before the marriage of Sunil and Kanopatra and she is staying at Parbhani. Therefore, it is difficult to fathom that, on the date of incident, as alleged by Kanopatra, Savita played active role i.e. caught holding her and then mother-in-law set her on fire. It has come on record that, Savita is having child and settled in Parbhani and her husband is having business of photo-copy Center at Parbhani.

27. The prosecution examined Dr. Sanjay Sahebrao Kadam, Medical Practitioner, who was working in Adhar Hospital at Shivaji Nagar, Nanded on 09.11.2008. He stated that, Kanopatra was admitted in the hospital from 09.11.2008 and thereafter she was referred to Civil Hospital, Parbhani on 21st November, 2008. Patient was 72% burnt. He has stated that, Police Officer and Special Judicial Magistrate have also came to him and asked him for giving opinion about condition of the patient for giving statement. During his cross-examination, he stated that, upper limbs of Kanopatra was completely burnt. He did not receive any letter from police or Magistrate, having request to record statement of patient. Therefore, the learned counsel appearing for the appellants is justified in arguing that, when the upper limbs of Kanopatra were completely burnt, signing of both dying declaration by Kanopatra was not possible. The Bombay High Court in case of Abdul Riyaz (supra) in para 9, in the facts of that case held that, when the doctor has admitted in the cross-examination that, both hands were nearly completely burnt, the post mortem notes would show that all four limbs were extended and fingers were semi flexed, it cannot be believed that in such condition, the patient would be able to sign the document so assertively.

The Supreme Court in the case of Thurukanni Pompial (supra) while considering the case of the prosecution based upon dying declaration in para 9 held thus :-

“Under Clause (1) of Section 32 of the Indian Evidence Act, 1872, a statement made by a person who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is a relevant fact in cases in which the cause of that person’s death comes into question, and such a statement is relevant whether the person who made it was or was not, at the time when it was made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. The dying declaration of Eranna is, therefore, relevant and material evidence in the case. A truthful and reliable dying declaration may form the sole basis of conviction, even though it is not corroborated. But the Court must be satisfied that the declaration is truthful.

The reliability of the declaration should be subjected to a close scrutiny, considering that it was made in the absence of the accused who had no opportunity to test its veracity by cross-examination. If the Court finds that the declaration is not wholly reliable and a material and integral portion of the deceased’s version of the entire occurrence is untrue, the Court may, in all the circumstances of the case, consider it unsafe to convict the accused on the basis of the declaration alone without further corroboration.

The law on this subject is stated by Sinha, J. in Khusal Rao v. State of Bombay, thus:

“Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the Court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the Court after examining the dying declaration in all its aspects, and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction.”

28. The Bombay High Court in the case of Shivkumar Umardand (supra) held that, in case the prosecution case is dependent upon dying declaration and if the death of wife is due to burn injuries and two dying declarations implicating her husband were at variance on two crucial aspects i.e. the manner in which incident took place and location of incident, in first dying declaration wife mentioning that, husband extinguished fire, said credit given to husband was withdrawn in subsequent dying declaration, the husband also sustaining burn injuries in incident, in such situation the accused is entitled for benefit of doubt. In the present case also, as already observed, there is variance in two dying declarations recorded at Exhibit-64 and Exhibit-80.

29. PW-11 Babu S/o Jyotibarao Phule, Investigating officer in his cross examination stated that, he did not see the case papers of Kanopatra or number of ward where she was kept. He did not give any letter to concerned medical officer showing that, he was directed to record statement of injured Kanopatra.

He did not mention about the time when he commenced recording of statement. He did not make note on the statement that, he meet doctor, who examined the patient and stated about her fit condition for recording statement. The contents of the statement vide Exhibit-64 were written by his writer. He cannot tell the name of his writer. Patient was 70% burnt. He cannot tell which part of patient was burnt and which was not burnt. He did not feel it necessary to make inquiry about treatment or medicines given to the patient. When he went towards patient, her parents and other relatives were present. He cannot tell whether both the hands of the patient were burnt.

Therefore, aforementioned admission given by the Investigating officer in the cross-examination is dent to the prosecution case, inasmuch as he stated that, when he went to patient her relatives were present and also he did not give letter to doctor for examining the patient. He does not remember even whether both the hands of Kanopatra were burnt or not. He did not remember the name of the writer.

30. It appears that, PW-12 Balasaheb Vithalrao Dudhate, witness to the spot panchanama stated that, his signatures were taken on blank papers on 10.11.2008. Therefore, his evidence is of no assistance to the prosecution case. It appears that, Kundlik S/o Nagorao Zunzare was examined as PW-13, who recorded the dying declaration at Exhibit-80. Upon reading his evidence about the actual incident narrated by Kanopatra, she stated that, her father-in-law caught hold of her hands, her husband and brother-in-law poured kerosene from plastic cans on her person.

Therefore, as already observed in dying declaration recorded at Exhibit-64, Kanopatra stated that, father-in-law went to Pandharpur on the date of incident.

During his cross-examination, he stated that, he recorded the dying declaration of the deceased on working day. He did not receive any intimation for recording dying declaration. He did not remember the phone number from which, he received the phone call for recording the statement of deceased. He further stated in cross-examination that, he has not made entry in the register at the reception counter in respect of his visit. An entry is taken at the reception in respect of the indoor patient O.P.D. Consultancy etc., and special visitors. He did not mention in the statement of the witness as to on which floor she was, when her statement was recorded. He does not maintain the register or diary for noting the date of statements of the witnesses recorded by him. He did not ask the doctor as to what treatment he had given to the patient. He did not mention in the statement that, the witness was able to talk. He did not noted the presence of the doctor in the statement. He did not seen the bed head ticket of the patient. He did not see history of the patient as per the bed head ticket. He did not noted on the bed head ticket of the patient in respect of recording her statement. He delivered the statement of the witness with his forwarding letter at the office of C.J.M. Nanded on 9th July, 2009. On 9th July, 2009, the statement was with him. He did not mention that, he had retained the carbon copy and the original is sent to the C.J.M.

However, he further admits that, the dying declaration is to be sealed immediately and is to be delivered to the C.J.M., however, the said dying declaration was with him for 7 to 8 months. Therefore, his evidence in cross-examination makes it clear that, the copy of the dying declaration Exhibit-80 was not sent to C.J.M. for 8 to 9 months.

31. The prosecution examined Kundankumar Bapurao Waghmare, who was working as Police Inspector in Special Security Department, Nanded as PW-16. He stated that, on 10th November, 2008, he visited the place of incident at village Shirpur, Tq. Palam and conducted panchanama. The place of incident is at the house of complainant Kanopatra at village Shirpur. He arrested the accused by separate panchanama on 10th November, 2008. During the course of treatment, the complainant Kanopatra died accordingly the offence punishable under Section 302 of the I.P. Code was added. He has stated other details about sending articles to C.A. During his cross-examination, he stated that, the house number is not mentioned in the panchanama Exhibit-106. He did record the statement of the neighbours of the place of incident and they did not disclose about the illtreatment to deceased Kanopatra from the accused persons. He stated that, the place of incident is a house consisting of compound wall and court yard. The main road of the village is in front of the house. On the northern side of the court yard, towards left of the entrance, there is fire place for hitting water etc. It is adjacent to the bathroom. There is projection in the wall for keeping articles such as kerosene lamp etc. A kerosene lamp was kept in it. The kerosene lamp can be used for igniting the fire place. He stated that, on 10th November, 2008, he recorded the statement of witnesses at village Shirpur. He recorded the statements of Kailash Deshmukh, Raju Panchal, Nagnath Deshmukh, Subhashrao Deshmukh, Balasaheb Deshmukh and Moiram Bachate. None of the witnesses stated in respect of seizure of any articles from the place of incident or road in front of the house.

From the statements of the above persons, he ascertained that, the incident took place at about 8 a.m. on 9th November, 2008. He also ascertained from the statements of the above witnesses that, at the time of incident, they were sitting near the temple on the road and some were in front of the house of deceased.

They stated before him that, deceased Kanopatra came running on the road with burnt clothes on person and accused Sunil Kadam and Sandeep Kadam had extinguished the fire. None of the witnesses has disclosed about any quarrel in the house of the accused on the night prior to the incident. He stated that, he did not collect injury certificates of accused nos. 1 and 2. He denied the suggestion that, he concealed the fact that, accused nos. 1 and 2 were on the road at the time of incident and they had extinguished the fire of the deceased, in which they sustained burnt injuries, therefore, he did not file the injury certificates of both the accused. He stated that, all the witnesses have stated that, marriage of Savita accused no.5 was performed with Santukrao Deshmukh of Chimangaon, Tq. Jintur and she was residing with her husband at Lokmanya Nagar, Parbhani since many years. None of the witness made statement to show that, on the day of incident accused no.5 Savita was at village Shirpur.

32. Upon reading the entire evidence of this witness, it appears that, though he recorded the statements of various persons in the said village, none of the witness is examined.

33. Therefore, taking into consideration the entire evidence placed on record by the prosecution and upon re-appreciating the said evidence, it does not inspire confidence so as to sustain the conviction of the accused. It is true that, PW-1 to PW-4 and PW-10 stated that, Kanopatra orally told them about the manner in which the incident had taken place and role played by the accused persons. However, when the officially recorded two dying declarations at Exhibit-64 and Exhibit-80 does not inspire confidence and not believable for having material inconstancies and variance, and when the accused had no opportunity to cross-examine the declarant, both the dying declarations, therefore, deserve to be discarded.

34. In the light of discussion hereinabove, both the dying declarations at Exhibit-64 and Exhibit – 80 deserve to be disbelieved. The Supreme Court in the case of Dandu Reddy (supra) in para 16 held thus :-

“16. Thus the High Court has sidelined such a noticeable discrepancy looming large as between the two different statements made by the same person. When the sphere of scrutiny of dying declaration is a restricted area, the Court cannot afford to sideline such a material divergence relating to the very occasion of the crime. Either the context spoken to one was wrong or that in the other was wrong. Both could be reconciled with each other only with much strain as to relates to the opportunity for the culprit to commit the offence. Adopting such a strain to the detriment of the accused in a criminal case is not a feasible course.”

35. In the light of discussion in the foregoing paragraph, the appellants deserve to be given benefit of doubt. Accordingly the following order :-

ORDER Accordingly Criminal Appeal is allowed. The conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted. Fine, if any, paid by the appellants be refunded to them. Since the appellants are in jail, they be released forthwith, if not required in any other case.

Sd/- Sd/-

( A.I.S. CHEEMA, J. ) ( S.S. SHINDE, J. )

sga/-