Madhya Pradesh High Court
Mubarik And Ors. vs State Of Madhya Pradesh on 19 July, 2004
Equivalent citations: 2004(3)MPHT473
JUDGMENT S.L. Kochar, J.
1. The appellants above named stood convicted for commission of murder and dowry death of Rehmat Bi, daughter-in-law of appellant Nos. 1 and 3 and wife of appellant No. 2 in nuptial home by the learned Addl. Sessions Judge, Sonkatch, District Dewas in Sessions Trial No. 197/96, thereby finding the appellant Kamrunnissa guilty of the offence punishable under Section 302 and Section 304B, Indian Penal Code and appellants Mubarik and Shakir Hussain of the offence punishable under Section 304B, Indian Penal Code convicted them accordingly and sentenced Kamrunnissa to suffer imprisonment for life with fine of Rs. 1,000/-, in default of payment thereof to suffer further R.I. for one year under Section 302, Indian Penal Code and to suffer imprisonment for life under Section 304B, Indian Penal Code and appellants Mubarik and Shakir Hussain each to suffer imprisonment for life under Section 304B of the Indian Penal Code. They have, therefore, preferred this appeal.
2. The facts of the prosecution case giving rise to the prosecution of the appellants before the Trial Court in nutshell were that before three/four years prior to the date of incident, Rehmat Bi, daughter of Abdul Rauf was married to accused/appellant Shakir in Bhavrasa. After marriage, Rehmat Bi used to visit her husband's house at Bhavrasa. On 21-6-96, in the morning at 8.30 A.M. she was ablazed and therefore, was taken to Indore and was admitted in M.Y. Hospital, Indore. There, on 23-6-96, her Dying Declaration (Ex. P-15) was recorded by the Addl. Tehsildar/Executive Magistrate Kaushal Bansal (P.W. 18). Thereafter, on 24-6-96 she died in the hospital, information whereof was given by the Hospital to Police Station, Sanyogitaganj, Indore and this police station in its turn informed the Police Station, Bhavrasa about the demise of Rehmat Bi. Police, Bhavrasa registered crime at No. 101/96. The First Information Report is Ex. P-12. Post-mortem examination on the dead body of Rehmat Bi was performed by Dr. P.C. Jain (P.W. 7) and issued post-mortem examination report (Ex. P-6). During investigation, it was revealed that the accused/appellants used to torture the deceased for demand of dowry and ultimately on the date of incident, she was ablazed after pouring kerosene oil on her person.
3. On these allegations, the accused/appellants, were charge-sheeted for the aforesaid offences before the Trial Court, where they pleaded not guilty and stated that they have been falsely implicated and claimed trial. During trial, the prosecution, to establish its case, examined as many as 18 witnesses while the appellants examined only one witness in defence. After conclusion of trial, the learned Trial Court finding the appellants guilty of the offences, convicted and sentenced them as indicated hereinabovc.
4. We have heard Shri J.K. Joshi, learned Counsel appearing for the appellants and Shri Girish Desai, learned Dy. Advocate General for the State and also gone through the entire record carefully.
5. The conviction of the appellant No. 3 mother-in-law under Sections 302 and 304B of the Indian Penal Code is based on the Dying Declaration (Ex. P-15) recorded by the Additional Tehsildar Kaushal Bansal (P.W. 18), as well as on the statements of Abdul Sattar (P.W. 3), Abdul Rauf (P.W. 4), Rabia (P.W. 5) and Kurban Hussain (P.W. 10) with medical evidence of Dr. P.C. Jain (P.W. 7), whereas the conviction of the appellant Nos. 1 and 2 for the offence under Section 304B of the Indian Penal Code is based on the evidence of the aforesaid witnesses as also the evidence of Dr. P.C. Jain (P.W. 7). In the facts and circumstances of the present case, a moot question for determination that crops up before us is whether the Dying Declaration (Ex. P-15) could be relied upon for holding the appellant No. 3 Kamrunnissa responsible for committing murder of daughter-in-law Rehmat Bi.
6. It would be apt to mention here two recent judgments of the Supreme Court before adverting to and appreciating the evidence on record, regarding placing reliance upon the Dying Declaration. In Uka Ram v. State of Rajasthan (AIR 2001 SC 1814) and P.V. Radha Krishna v. Stale of Karnataka (AIR 2003 SC 2859). The Supreme Court has enunciated that the principle of admissibility of Dying Declaration in evidence is based upon the legal maxim "Nemo moriturus praesumitur mentire", ie., man will not meet his maker with a lie in his mouth. The Dying Declaration can be the sole basis of conviction if it inspires full confidence of the Court in its correctness and there is no possibility of the statement being the result of cither tutoring, prompting or vindictive or product of imagination. The Court must also satisfy about the fit state of mind of the deceased at the time of making a statement. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly the same can be the basis for conviction without seeking any corroboration. The corroboration is not the rule of law, but is only a rule of prudence. See : leading judgment of the Apex Court on this point passed in the case of Khushal Rao v. State of Bombay (AIR 1958 SC 22), wherein it has been held in Para 17 that :--
"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."
7. In view of the above dicta of the Highest Court of the land, we proceed to examine truthfulness, reliability and genuineness of dying declaration (Ex. P-15). The deceased received burn injuries on 21-6-96 at 8.30 A.M. in her husband's house situated in Village Bhavrasa in the District of Dewas, but no information was lodged in the Police Station, Bhavrasa by the appellants and she was directly brought and got admitted in the M.Y. Hospital, Indore. From M.Y. Hospital, Indore also, no information was sent by the authority or the police on 21-6-96. For the first time, the information was sent by M.Y. Hospital, Indore to Sanyogitaganj Police which was attended to by Head Constable Ramesh Singh Yadav (P. W. 16) regarding death of Rehmat Bi who was admitted in the Hospital as a case of 100 per cent burn injury. On this telephonic information Sanyogitaganj Police had registered a Merg vide Ex. P-14. Only thereafter, the Police, Sanyogitaganj, Indore reached at M.Y. Hospital. The prosecution has not filed any report lodged by anybody at the Police Chowki of M.Y. Hospital, Indore or Sanyogitaganj Police Station in whose jurisdiction, M.Y. Hospital was situated or at the Police Station, Bhavrasa.
8. The say of P.W. 18 the then Additional Tehsildar Shri Kaushal Bansal is that on 23-6-96, he recorded the statement of deceased Rehmat Bi vide Ex. P-15, in the M.Y. Hospital, Indore. In his examination-in-chief, he has not disclosed as to how he reached at M.Y. Hospital to record the statement of deceased Rehmat Bi, but in cross-examination he has stated that he reached in the hospital to record the statement on the basis of the order given to him on telephone by Sub-Divisional Magistrate Shri Dharmendra Singh and he was not able to say whether he had received any written letter to this effect or not. He has also stated that alongwith him, the police of Police Chowki, M.Y. Hospital accompanied him when he reached to record the statement in the Hospital. He also deposed that at the time of recording of the statement, he had obtained the certificate from the Doctor, but, was not able to state his name and the certificate was also not filed alongwith the charge-sheet. According to this witness, the certificate was in his office and the same was not traceable. He had handed over one carbon copy of the Doctor's certificate to the police. We have verified from the record and found that no such certificate was filed and exhibited by the prosecution in the present sessions trial.
9. On the Dying Declaration (Ex. P-15) which was said to have been recorded on 23-6-96 at 3.40 P.M., no certificate of mental fitness of the deceased Rehmat Bi given by the Doctor, is available. The signature or the thumb-impression of the deceased are also not available, but it is mentioned that the signatures or the thumb-impression of the deceased could not be obtained because of burn in hands. Dr. P.C. Jain (P.W. 7), the autopsy surgeon has nowhere stated that her fingers were burnt and because of which, she could not sign or put her thumb-impression on the dying declaration. Kaushal Bansal (P.W. 18) himself has also neither mentioned in the dying declaration (Ex. P15) about consciousness or mental fitness of the deceased at the time of recording of the dying declaration, nor did he state this fact in his statement in the Court that he satisfied himself about consciousness and mental fitness of the deceased before recording the dying declaration. In the dying declaration some leading questions have been put. Kaushal Bansal (P.W. 18) has not assigned any cogent and valid reason for not obtaining the certificate of fitness prior to recording of the statement of the deceased. Even he did not secure the presence of any Doctor, nurse or other employee of the hospital though he could easily arrange the same. Since, no documents have been filed by the prosecution to establish that he was requested to record the dying declaration by the hospital authority, police or any other authority.
10. The statement of this witness (P.W. 18) for the first time and that too in the cross-examination, that he was directed on telephone by Sub-Divisional Magistrate, Dharmendra Singh for recording the dying declaration, is not acceptable. He was examined on 14-1-98. The dying declaration was recorded on 23-6-96. It was very difficult for him to remember after such a long span of time that he was directed by the Sub Divisional Magistrate on telephone to record the dying declaration. According to him, he was serving as Executive Magistrate since last 20 years and there were several Executive Magistrate available in Indore. He was not able to state as to how many police stations were there in his jurisdiction for the purpose of recording the dying declaration.
11. In Para 7 of his deposition, Kaushal Bansal (P.W. 18) has deposed that the Sub Divisional Magistrate Dharmendra Singh had told him that somebody has come from Dewas in burnt condition and his dying declaration was to be recorded. On that basis he reached in the Hospital alongwith the police officials of M.Y. Hospital Police Chowki. For all this transaction, absolutely no documents have been filed. Learned Counsel for the appellants has invited our attention to the medical documents of admission of Rehmat Bi in the Hospital vide Ex. D-4 proved by Dr. R.V. Paliwal (D.W. 2). The admission and treatment documents of Rehmat Bi in the M.Y. Hospital reveal that she was admitted in the hospital on 21 -6-96 and in-charge of the case was Dr. R.V. Paliwal (D.W. 2) under whom, two doctors namely Dr. Preeti Manawat and Sanjay Grover were deputed. The deceased Rehmat Bi when admitted, was having 100 per cent burn injury, She was unconscious having received accidental burn injury on 21-6-96 at 7.00 A.M. She was given treatment on 21st, 22nd, 23rd and 24th June, 1996. All the times her general condition was poor, pulse feable and blood pressure was unrecordable. She died on 24-6-96.
12. There is a letter addressed to the C.M.O., M.Y. Hospital, Indore written by Dr. Preeti Manawat requesting for making arrangement to record the dying declaration of the deceased. On this letter, one noting is also available regarding sending of information to the Sanyogitaganj Police Station. Below the letter the same doctor, i.e., Dr. Preeti Manawat seems to have written that "Patient is not mentally sound to give statement, time 11.30 P.M." However, this noting has been scored out, still one can read it with naked eyes as to what was written. The entire medical documents are in the hand-writing of Dr. Preeti Manawat who has not been examined by the prosecution. As a matter of fact, the prosecution has not examined any witness to prove these documents even though filed alongwith the charge- sheet. The appellants have prayed for getting those documents proved at the appellate stage as per provisions under Section 391 of the Code of Criminal Procedure. The handwriting and signatures of Dr. Preeti Manawat have been proved by the in-charge of the ward as well as in-charge of the case Dr. R.V. Paliwal (D.W. 2).
13. We have carefully gone through those documents and found that these documents nowhere reveal the fact that as to who brought Rehmat Bi in the M.Y. Hospital, Indore and got her admitted there and who had given information regarding accidental burn injury. The columns of name, relationship and address of nearest relative in the admission form have been left blank. According to Abdul Sattar (P.W, 3), Abdul Rauf (P.W. 4) and Rabia Bi (P.W. 5) this fact has been disclosed that the deceased was brought to the M.Y. Hospital by the appellants and they were given information by the brother-in-law (DEWAR) of the deceased. But, the appellants did not utter a single word in their statements recorded under Section 313 of the Code of Criminal Procedure with regard to bringing of the deceased to the hospital and giving information about it. It appears that the history of accidental burn must have been disclosed at the time of admission before the doctor by the appellants. We are, therefore, of the opinion that the factum of receiving burn injury by accident is not worth placing reliance firstly, the documents are not disclosing on what basis and on whose instance the history was written and secondly, the scribe of these documents, i.e., Dr. Preeti Manawat has not been examined by any party to explore and establish this fact.
14. It is also pertinent to mention here that though Abdul Rauf (P.W. 4), father and Rabia Bi (P.W. 5) the mother of the deceased reached at the M.Y. Hospital, Indore on 21-6-96, yet they did not lodge any complaint with the police against the appellants. The police also set into motion after the death of the deceased on 24-6- 96. Under these circumstances, we find it difficult to place implicit reliance on the dying declaration (Ex. P-15). There is one more circumstance to discard the dying declaration (Ex. P-15), i.e., Abdul Rauf (P.W. 4) has deposed that his daughter had made oral dying declaration that she was ablazed by her mother-in-law, husband and sister-in-law. This was disclosed to him on the next day, i. e., on 22-6-96 at 8.00 P.M. Even then he did not lodge any report at the Police Chowki situated in M.Y. Hospital Campus itself. No such report has been filed and proved by the prosecution. If the say of Kaushal Bansal (P.W. 18) that when he reached at the M.Y. Hospital, policeman of Police Chowki, M.Y. Hospital was with him is taken to be true, the police of Police Chowki would have certainly recorded this fact in their daily-diary and also would have sent the information to the Main Police Station, Le., Police Station, Sanyogitaganj, Indore.
15. Investigating Officer Harish Kumar Sharma (P.W. 15) has also deposed that on 23-6-96 when he reached at the M.Y. Hospital, Indore, he was told by in-chargc of M.Y. Hospital Chowki about recording of the dying declaration by the Tehsildar Bansal. If this was so, why the witness from M.Y. Hospital Police Chowki has not been examined by the prosecution. This story appears to be an afterthought and is prepared just to explain regarding recording of the dying declaration dated 23-6-96 and to explain the delay in registration of crime by the concerned police which was registered on 28-6-96, i.e., even after four days of the death of the deceased. If the police was knowing about commission of cognizable offence like murder on 23-6-96 then why the offence was not registered immediately. The delay in registration of crime also throws considerable amount of doubt over the veracity of the case regarding dying declaration (Ex. P- 15). See : Ganesh Bhavan Patel v. State of Maharashtra (AIR 1979 SC 135).
16. In Para 9, this witness has slated that on first day the police reached in the hospital ward and they were in favour of the accused persons. He was not knowing whether they had recorded any statement of the deceased or not. Thereafter, on third day, i.e., on Sunday, on his behalf police party reached in the hospital ward. He also stated that on the first day the police was trying to get the false statement by threatening the deceased.
17. Rabia Bi (P.W. 5), the mother of the deceased has also stated that the deceased disclosed before her that she was first assaulted by her mother-in-law, and sister-in-law. Thereafter, they poured kerosene oil on her and her husband Shakir set her on fire by lighting match-stick.
18. The defence has given suggestion to both the witnesses which has been denied by them that the deceased received burn injuries from oven (CHULHA). The written dying declaration (Ex. P-15) is implicating only the mother-in-law whereas the oral dying declaration stated to have been made before Abdul Rauf (P.W. 4) and Rabia Bi (P.W. 5), the deceased was assaulted and put on fire by mother-in-law, sister-in-law and her husband. In view of this material contradiction in the above evidence, were are unable to place reliance on the evidence of written and oral dying declaration. At the same time, we are also not finding it true that the deceased met accidental burn injury and that too 100 per cent by oven (CHULHA). Therefore, as to how the deceased received burn injury is a mystery. But, the fact is proved that the deceased died because of burn injuries otherwise than under normal circumstances. Since we have discarded the evidence of dying declaration, there is no other evidence to hold the appellant No. 3 Kamrunnissa guilty for committing murder of deceased Rehmat Bi. The deceased has not implicated the appellant No. 1 Mubarik.
19. On perusal of the statement of Abdul Sattar (P.W. 3), Abdul Rauf (P.W. 4) and Rabia Bi (P.W. 5), it emerged that the deceased was married with the appellant No. 2 Shakir before 4 to 5 years from the time of her death. After marriage, she was ill- treated for demand of dowry. The appellants were demanding ornaments, electric fan and other articles, and they were also not sending her to her parents' house. Abdul Sattar (P.W. 3) has also deposed that the deceased was sent to her parents' house two to four times at the initial stage after marriage. Thereafter, they stopped sending her and the deceased had disclosed about demand of dowry. Qurban Hussain (P.W. 10), though has been declared hostile by the prosecution, but he has also stated about strain-relations between the deceased and her husband and her husband Shakir was saying to leave her.
20. The post-mortem examination was performed by Dr. P.C. Jain (P.W. 7) who found burn injuries all over on the body of the deceased. The injuries were ante-mortem in nature and the deceased died because of heart and respiratory failure, due to burn-injuries and consequent complications. By the evidence of the expert witness, it is proved that the deceased died because of burn injuries. The prosecution has not asked any question to this doctor about the presence of burn injuries on the fingers and thumb because of which the deceased could not sign or put her thumb impression on the dying declaration.
21. On over-all assessment of the evidence of Abdul Sattar (P.W. 3), Abdul Rauf (P.W. 4) and Rabia Bi (P.W. 5) as also Qurban Hussain (P.W. 10), it is found proved beyond reasonable doubt that the deceased was married with the appellant No. 2 Shakir before four to five years from the date of her death. She died within seven years of her marriage and she was subjected to cruelty and harassment for demand of dowry prior to her death. Learned Counsel has vehemently argued that there is no evidence on record that she was subjected to cruelty or harassment in connection with demand of dowry soon before her death. We arc not impressed by this argument because from the statements of the aforesaid witnesses it is clear that after the marriage just before eight days from the date of incident, she was not allowed to come to her parents' house and the appellant were ill-treating and quarreling with her for bringing dowry and whenever they were going to bring her to their house, the appellants were not sending her. This clearly shows that the appellants used to ill- treat her and demanding dowry.
22. The Supreme Court in the case of Hiralal and Ors. v. State of Delhi [2003 SCC (Cri) 1234] has interpreted the expression "soon before" mentioned in Section 304B and held that no straight jacket formula can be laid down as to what would constitute a period of soon before the occurrence. It has to be determined by the Courts depending upon the facts and circumstances of each case. In view of this, we find on the basis of the evidence on record as discussed above, the existence of a proximate and live link between the effect of cruelty based on dowry demand and the death of deceased. Therefore, all the necessary ingredients of offence under Section 304B, Indian Penal Code have been proved by the prosecution and in view of the provisions of Section 113B of the Evidence Act, we presume that the appellants have caused the dowry death of deceased Rehmat Bi.
23. On the wake of the aforesaid analysis of the evidence and material available on record, the conviction of the appellant No. 3 Kamrunnissa under Section 302, Indian Penal Code can not be sustained. Consequently the same is hereby set aside and all the three appellants are held guilty of committing the offence punishable under Section 304B, Indian Penal Code.
24. As regards the sentence, minimum sentence of seven years is prescribed for the offence under Section 304B, Indian Penal Code and the extreme sentence prescribed is imprisonment for life. The Supreme Court in the case of Hemchand v. State of Haryana (AIR 1995 SC 120) has ruled that awarding extreme punishment of imprisonment for life should be in rare cases and not in every case. We do not find any extra-ordinary circumstances against the appellants to award the extreme penalty. We are, therefore, of the opinion that a sentence of 10 (ten) years rigorous imprisonment would meet the ends of justice. We accordingly while affirming the conviction of the appellants under Section 304B, Indian Penal Code, reduce their sentence of imprisonment for life to ten (10) years rigorous imprisonment.
25. Let a copy of this judgment be sent to the Trial Court alongwith its record and the jail authorities be informed immediately.