Smt. Sadhna Dixit vs State Of Chhattisgarh on 6 January, 2016

[Cites 9, Cited by 0]

Chattisgarh High Court

Smt. Sadhna Dixit vs State Of Chhattisgarh on 6 January, 2016

1. This appeal arises out of the judgment of conviction and order of sentence dated 4.7.2013 passed by the Additional Sessions Judge, Sarangarh in S.T. No.11/12 convicting the accused/appellant under Section 304 (B) of the Indian Penal Code (for short 'the IPC') and sentencing her to undergo imprisonment for life & fine of Rs.5,000/-, in default to undergo additional SI for 01 year.

2. The brief facts of the case are that on 26.11.2011 FIR (Ex.P-21) was lodged by Birendra Dubey (PW-15), father of deceased, alleging in it that marriage of deceased Pragya @ Sapna was solemnized with acquitted accused Sudhir Dixit on 31.1.2011. Immediately after the marriage, the accused persons started harassing and torturing the deceased for 15 bringing inadequate dowry in the marriage. On 24.11.2011 the accused persons had poured the kerosene on her and set her on fire with a matchbox causing 95% burn injuries which has resulted into her death on 3.12.2011 in the hospital. It has been further alleged that on being informed, he visited the hospital where the deceased disclosed to him that she was burnt by the accused persons. Based on this report, un- numbered FIR was registered under Sections 307, 498A, 34 of IPC against the four accused persons i.e. Kamlesh Dixit (father-in-law); Sudhir Dixit (husband); Vimal Dixit (brother-in-law) and the present appellant. Merg intimation (Ex.P-3) was recorded on 3.12.2011. During the course of investigation, three dying declarations of the deceased were recorded on 24.11.2011 vide Ex.P-21, Ex.P-28 & Ex.P-30 and fourth dying declaration of the deceased was recorded on 26.11.2011 vide Ex.P-4. Post-mortem on the body of deceased was performed by Dr. Tarun Kumar (PW-16) who noticed 100% burns and opined that cause of death was shock due to septicaemia by extensive burn. After investigation, charge sheet under Sections 498A, 307, 304B, 34 of the IPC was filed against the accused persons, however, the charge under Section 304-B of IPC, in alternative under Section 302/34 of IPC was framed against the accused persons by the trial Court.

3. To substantiate the charge against the accused persons, the prosecution has examined 18 witnesses. When the accused persons were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances, they denied the same and pleaded that they are innocent.

4. Upon consideration of evidence, the trial court while acquitting Kamlesh Dixit (father-in-law); Sudhir Dixit (husband); Vimal Dixit (brother-in-law) from the charge, convicted and sentenced the present appellant as 15 described above.

5. During the pendency of this criminal appeal, pursuant to the direction issued by this Court, two more witnesses i.e. Head Constable Premlal Chandra and Dr. D.N. Pujari have been examined as PW-19 & PW-20 respectively by the trial Court. These witnesses have proved the dying declarations of Ex.P-28 & Ex.P-30 recorded by them.

6. Counsel for the accused/appellant submits that; • in the three dying declarations (Ex.P-21, P-28 & P-30) of the deceased recorded on 24.11.2011, it has come that the deceased died accidental death and therefore recording of fourth dying declaration (Ex.D-4) on 26.11.2011 becomes doubtful and it shows that the appellant has been falsely implicated in crime in question.

• Evidence of Sandhya Dubey (PW-12) & Virendra Dubey (PW-15), being the relatives of deceased, cannot be relied upon by the Court. • Rishabh Dubey (PW-10) & Kishan Dubey (PW-11), brothers of the deceased, have admitted in their evidence that the deceased died accidental death.

7. On the other hand, supporting the impugned judgment learned counsel for the State submits that;

• apart from dying declaration (Ex.P-4) dated 26.11.2011 recorded by the Executive Magistrate, the deceased made oral dying declaration before Virendra Dubey (PW-15) and there is no reason for this Court to disbelieve these dying declarations.

• Sandhya Dubey (PW-12) & Virendra Dubey (PW-15) have categorically stated that the deceased was subjected to cruelty & harassment by the accused persons in connection with the demand of dowry.

• Brutality of the act of appellant can be further seen from the fact that the deceased suffered 100% burn injuries.

8. Heard learned counsel for the parties and perused the evidence available on record.

9. Murali Dewangan (PW-1) is the witness of seizure memo of Ex.P-1 by which certain articles like pieces of floor, burnt clothing, plastic container of kerosene oil, matchbox etc. were seized. This witness has not supported the prosecution case and turned hostile. However, in the cross- examination by the prosecution, he has stated that all the in-laws of the deceased had affection towards the deceased and even they used to send her in the neighbourhood to learn tailoring. He has further stated that from the date of marriage, the in-laws of the deceased were providing her medical treatment.

10. B.S. Bais (PW-2) is person who recorded numbered merg intimation (Ex.P-3).

11. N. Toppo (PW-3) is the Tahsildar-cum- Executive Magistrate who recorded the dying declaration (Ex.P-4) of the deceased on 26.11.2011. This witness has also recorded dying declaration of Ex.P-21 on 24.11.2011. He has also prepared the inquest (Ex.P-5). During inquest, he has also recorded statement of Virendra Dubey (PW-15) vide Ex.P-7. He has admitted the fact that while recording dying declaration (Ex.P-21), the deceased told that while she was cooking food, her saree came into contact with gas stove and she got burnt. He has further stated that on being asked, she denied that she was set on fire by someone. She also denied the fact that she burnt herself. This witness has admitted that dying declaration of any injured can be recorded only once by the Executive Magistrate. He has further stated that dying declaration dated 15 24.11.2011 was recorded in the government hospital whereas subsequent dying declaration (Ex.P-4) was recorded in a private hospital i.e. Jindal Hospital, Raigarh. He has stated that he received telephonic information from the concerned police station for recording dying declaration of the deceased and therefore he visited the hospital. He has further stated that after recording the name of deceased, the relatives of the deceased present in the hospital informed him that the deceased wants to disclose certain correct facts of the incident and thereafter he recorded her dying declaration. He has further admitted the fact that he did not inform the parents and other relatives of the deceased that in the earlier dying declaration the deceased has stated that she sustained burn injuries while cooking food and therefore no further statement is required. He has stated that dying declaration of the deceased was recorded after the endorsement of the doctor that she is in a fit state of mind to give the statement. He has further stated that he has obtained signature of only one witness as only one person was present in the ICCU. He has further stated that at the time of inquest, as many as five panchas were present, however, he recorded the statement of Virendra Dubey (PW-15) i.e. father of the deceased, as he thought it proper to record his statement.

12. Ratan Sharma (PW-4) & Sukhiram (PW-5) are the witnesses of seizure memo (Ex.P-10) by which marriage card & letter allegedly written by the deceased were seized.

13. Ramesh Mishra (PW-6) is the Patwari who prepared the spot map (Ex.P-12). He is also witness of panchnama (Ex.P-13).

14. Satish Yadav (PW-7) is the seizure witness of Ex.P-1 and arrest memos of some of the accused persons. This witness has been declared hostile, however, he has admitted his signature on the aforesaid document. 15

15. Kalicharan Dewangan (PW-9) is the neighbourer of the accused/appellant. He has stated that acquitted accused Vimal, brother-in-law of deceased, came crying to me and told that his sister-in-law (deceased) got burnt. On this, he went to his house and saw that the deceased is standing in burnt condition and after seeing her, he got scared and therefore turned his face. She asked me to call her husband who had gone to the temple at that time. Thereafter the deceased was taken to the Sarangarh Hospital from where she referred to the hospital at Raigarh.

16. Rishabh Dubey (PW-10) is the brother of deceased. He has stated that whenever they went to the house of accused persons to bring the deceased, they used to say that they can take her with them only after payment of Rs.25,000/- spent by them in her treatment. On 24.11.2011, Kamlesh Dixit, father-in-law of deceased, informed him on phone that while cooking food the deceased had received burn injuries. On this, he immediately reached the hospital. Thereafter he informed about the incident to his parents. He has further stated that when he met his sister in the hospital, she told him that firstly her in-laws committed maarpeet with her and thereafter her brother-in-law had poured kerosene oil on her and set her aflame. He has further stated that the deceased also disclosed to him that her in-laws have threatened her not to disclose correct facts to anyone. In Para-6 he has admitted that after the incident, proper treatment was provided to the deceased by her in-laws. He has admitted the fact that the treating doctor used to ask about the well-being of the patient and that as to how she suffered burn injuries. He has further admitted that the house where the deceased was living with accused persons is situated in a dense locality. He has further stated that the accused persons have sought permission of the treating doctor to take the 15 deceased to the Raigarh hospital for providing her better treatment. He has further stated that he has informed the police about the statement made to him by the deceased and if the said fact is not mentioned in his diary statement, he could not tell reasons. He has further stated that the accused persons had spent enough money in the marriage. He has also admitted the fact that the deceased was ill since marriage. He has stated that all the expenses incurred in the treatment of deceased was borne by the accused persons. He has admitted in Para-20 that he is aware that his sister suffered accidental burn injuries and on account of grief, they were feeling that it is the accused persons who are responsible for the death of the deceased.

17. Kishan Dubey (PW-11) is another brother of the deceased. He has also made the statement in similar fashion as has been made by Rishabh Dubey (PW-10). According to this witness, on the first day of his two days' stay in the house of the deceased, there was a quarrel between all the accused persons on which his sister asked him to get back to Chandrapur as her in-laws were abusing him. The deceased had also told him to inform number of things to her parents and on which he told her to give the same in writing as he could not keep in mind all those things whereupon she wrote a letter and given to him. He has further stated that his sister has not only mentioned her name in the said letter but also signed the same. However, the letter (Article-10'C') available in the record does not contain name and signature of the deceased. In Para-11 of his cross-examination, he has admitted that death of his sister is the result of fire accident. He has further submitted that as his sister died in the fire accident, therefore, they were unhappy and of the view that the family members of his brother-in-law are responsible for her death. 15

18. Sandhya Dubey (PW-12) is the mother of deceased and stated that having been informed about the incident, she visited the hospital on 25 th, but on that day she was not allowed to meet the deceased. On the next day when she met her daughter, she told her that her mother-in-law caught hold of her hairs and her brother-in-law had poured kerosene oil on her, set her aflame and thereafter bolted the door from outside. Ten minutes thereafter her younger brother-in-law came running to her and poured water on the body. She has further stated that the deceased further informed her that before setting her aflame, the accused persons have beaten her after tying her hands & legs. She has further stated that on earlier occasions also her daughter was subjected to cruelty by the accused persons. There appears to be material improvements in her Court statement from that of her diary statement (Ex.D-3) and this witness has stated that she is not aware as to why all these things have not been mentioned in her diary statement which she has stated in the Court. She has admitted the fact that financial condition of the accused persons was good and considering their financial status and the fact that there is no demand from their side, the proposal of marriage was sent by them and ultimately the marriage was solemnized.

19. S.N. Pandey (PW-13) is the person who recorded the FIR (Ex.P-19).

20. Virendra Dubey (PW-15) is the father of the deceased. He has also made the allegations against the accused persons for subjecting the deceased with cruelty for demand of dowry. He has admitted the fact that acquitted accused Kailash Dixit had agreed for the marriage without any dowry and after seeing his family, the marriage was solemnized. He has further admitted that before marriage her daughter was taking treatment and she was also taken for exorcism. There appears to be material improvement 15 in the Court statement of this witness as compared to his diary statement and the FIR lodged by him.

21. Dr. Tarun Kumar (PW-16) is the person who conducted post-mortem on the body of deceased and gave his report (Ex.P-12). According to this witness, he had noticed 100% burn on the body including face, chest & forehead and opined cause of death as shock due to septicaemia caused by extensive burn.

22. Hemraj Patel (PW-17) is the person who prepared the inquest (Ex.P-13).

23. R.S. Paraste (PW-18) is the Investigating Officer and has duly proved the prosecution case.

24. Pursuant to the order of this Court dated 2.2.2015, statements of Head Constable Premlal (PW-19) and Dr. D.N. Pujari (PW-20) were recorded. Premlal (PW-19) has proved the dying declaration recorded by him vide Ex.P-28, whereas Dr. D.N. Pujari (PW-20) has proved the dying declaration recorded by him vide Ex.P-30.

25. We have given our thoughtful consideration to the contentions urged by the counsel for parties and perused the impugned judgment and the materials on record.

26. In order to attract application of Section 304-B IPC, the essential ingredients are as follows:-

• The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance and such death should have occurred within seven years of her marriage. • She must have been subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry.

On proof of essential ingredients mentioned above, it become obligatory 15 on the Court to raise a presumption that the accused caused the dowry death. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment.

"Soon before" is a relative term and it would depend upon circumstance of each case and no straitjacket formula can be laid down as to what would constitute a period "soon before the occurrence". There must be in existence a proximate live link between the facts of cruelty in connection with the demand of dowry and the death. If the alleged incident of cruelty is remote in time and has become stale enough not to disturb mental equilibrium of the woman concerned,it would be of no consequence.

27.The evidence and material on record is to be examined whether there is evidence to prove that "soon before the occurrence", deceased was subjected to torture and harassment in connection with demand of dowry.

28. Minute scrutiny of the evidence of Virendra Dubey (PW-1), father of deceased, Sandhya Dubey (PW-12), mother of deceased, Rishabh Dubey (PW-10), brother of deceased, & Kishan Dubey (PW-11), another brother of deceased, make it clear that except the allegation of demand of Rs.25,000/- from the side of groom i.e. amount spent in the treatment of the deceased, there is no whisper in their evidence that any kind of dowry demand was ever made or that "soon before the occurrence" the deceased was subjected to torture and harassment in connection with the demand of dowry. It has also not come in the evidence that the accused persons had been torturing the deceased with their cruel behaviour and she complained the same to them. On the contrary, the parents & brothers of the deceased have admitted in their evidence that before the marriage or at the time of marriage there was no demand of dowry from the side of 15 groom. Their evidence further goes to show that the deceased was suffering from some disease and even prior to the marriage she was taking treatment of the same. In absence of any specific allegation of commission of cruelty and harassment upon the deceased by the present appellant in connection with demand of dowry, it would be unsafe to presume that "soon before her death" the deceased was subjected to cruelty and harassment by the present accused/appellant and she is definitely entitled to be acquitted of the charge by extending her benefit of doubt.

29. Now the question arises for consideration before us is as to whether having regard to the contradictory and/or inconsistent stands taken by the deceased in her dying declarations, the impugned judgment can be sustained in law? The deceased had made four dying declarations one before Head Constable, one before the doctor and two before the Executive Magistrate. In the first three statements of the deceased (Ex.P-21, Ex.P-28 & Ex.P-30) made before the Executive Magistrate, Head Constable & the doctor respectively the deceased has clearly stated that while she had been cooking food in the kitchen, she got burnt catching fire from the gas stove, thereby indicating that it was an accident. The questions whether she was burnt by some one or did she herself put a fire, were answered by the deceased in negative. In the last dying declaration (Ex.P-4) made before the Executive Magistrate on 26.11.2011, the deceased had stated that while she was in the kitchen, her mother-in- law came from behind, poured kerosene oil on her and ignited fire to her saree with a matchbox and when she shouted, her brother-in-law came running to her and extinguished fire by pouring water on her. In these circumstances, we think it necessary to extract these dying declaration as 15 found in the records.

30. In the first dying declaration (ExP-21) recorded by the Executive Magistrate on 24.11.2011 at 9.45 a.m., the deceased has stated thus;

        "iz'u&             dSls tyh \

        mRrj&              nky NkSdqaxh dgdj gYnh fudky jgh Fkh xSl pwYgk esa

dyNqj p<+kbZ Fkh rHkh pwYgs dh vkx us lkM+h idM+ yh vkSj eSa ty xbZA iz'u& ml le; ?kj esa vkSj dkSu&dkSu Fks\ mRrj& esjk NksVk nsoj iznhi vkSj lklw ekWa mij eafty esa FksA iz'u& fdlh us rqEgsa tyk;k rks ugh\ mRrj& ughA iz'u& fdlh rdyhQ ds dkj.k [kqn ls vkx rks ugh yxkbZ\ mRrj& ughaA"

Another dying declaration recorded by the Head Constable Premlal Chandra (PW-19) reads as follows;

        "1-    vkidk uke D;k gS\
               esjk uke liuk fn{khr gS
        2- vkidk mez D;k gS
               esjh mez 22 o"kZ gSA
        3- vkidh 'kknh dc gqbZ Fkh
               esjh 'kknh 30 tuojh 2011 dks gqbZ Fkh
        4- vki dSls tyh gSA

EkSa [kkuk cuk jgh Fkh xSl dks nky idkus ds fy;s pkyw fd;k rks vpkud xSl ds tknk tyus ls igus dIkM+k lkM+h esa vkx yx tkus ls tyh gWwA 5- dkSu dkSu Fkk ogka lkFk esa\ dksbZ ughA 6- fdlh us vkidks tyk;k rks ugh gS\ ughA 7- vkidks llqjky esa dksbZ rdyhQ gqvk rks ugh\ ughA 8- gLrk{kj djks EkS ugh dj ldrhA"

The third dying declaration (Ex.P-30) was recorded at 12.20 p.m. on 24.11.2011 by Dr. D.N. Pujari (PW-20) and the relevant portion of it reads as follows;-

"uke & Jherh liuk xSl dks pkyw dh vkSj ty xbZ] [kkuk cuk jgh FkhA dksbZ ugh Fkk lkFk esaA fdlh us ugh tyk;kA llqjky esa dksbZ nq[k rdyhQ ugh] lkM+h esa vkx yx xbZA"

The fourth dying declaration (Ex.P-4) made on 26.11.2011 before the Executive Magistrate reads as follows:-

"uke liuk mQZ izKk nhf{kr ifr lq/khj nhf{kr mez 20 o"kZ] fuoklh&lkjax<+ ftyk jk;x<+ iz'u& dSls tyh\ mRRkj&tc ls esjh 'kknh gqbZ gS] esjh lkl eq>s cgqr rdyhQ ns jgh Fkh] xanh xanh xkyh nsrh FkhA mBus ls ysdj lksus rd eq>s rdyhQ nsrh FkhA ngst ykus dgrh FkhA iz'u& fdl izdkj tyh ;s crkvks\ mRrj&fiNys xq:Okkj dks eSa lqcg ugh /kksdj rS;kj gqbZ] vius ifr ds lkFk ?kj esa iwtk dh fQj] esjk ifr xk;=h eafnj iwtk djus pyk x;kA lqcg yxHkx 10%30 cts eSa jlksbZ esa ;g ns[kus xbZ fd fdruk cklh [kkuk cpk gS] vkSj gYnh fudkyus yxh rHkh esjh lkl ihNs ls esjs mij feV~Vh rsy Mky dj ekfpl ls esjs mij vkx yxk nh] ftlls eSa tyus yxh vkSj fpYykus yxh] esjk nsoj vk;k vkSj ikuh Mky dj vkx cq>k;kA iz'u& igys ftyk vLirky esa esjs lkeus tks c;ku nh Fkh] mlesa nwljh ckr crkbZ Fkh] D;ksa\ mRRj& esjs llqjky okyksa ds lkFk esjk ifr Hkh Qal tk,xkA ;g lksp dj eSa ml fnu lp ckr ugh crkbZ FkhA iz'u& rqEgkjk igys dk c;ku lgh gS ;k vkt tks vHkh ns jgh gks og lgh gSA mRRj& eSa tks vHkh c;ku ns jgh gWw ogh lgh gSA"

31. The law with regard to dying declaration is that a dying declaration should satisfy all the necessary tests and one such important test is that if there 15 are more than one dying declarations, they should be consistent particularly in material particulars. From perusal of all the four dying declarations it is evident that in first three dying declarations recorded on 24.11.2011, she has stated that the incident has taken place accidentally. However, at the time of recording of fourth one, which was recorded on 26.11.2011, she has stated altogether a different story that she was set on fire by her mother-in-law. The evidence on record goes to show that before the fourth statement of the deceased was recorded by the Executive Magistrate, her father had met her in the hospital and being so, the possibility of the deceased having acted upon her father and made the statement attributing the entire incident to present accused/appellant cannot be ruled out. Needless to say that in the three statements, the deceased did not make even a whisper about the involvement of any of her in laws in the crime in question and it is only after the father-daughter meeting in the hospital, this new story has come to the surface which, sorry to say, does not have any legal value. Furthermore, the statement of father of deceased makes it clear that the deceased had informed to have been set ablaze by her mother-in-law & brother-in-law, whereas the deceased has taken the name of only mother-in-law to be the person setting her on fire. This apart, the last dying declaration was though recorded in presence of the doctor, who has appended his remark that at the relevant time the deceased was fit to make statement, but unfortunately the said doctor has not been examined by the prosecution nor even the witness in whose presence such dying declaration was recorded has also been examined. This way also the dying declarations involving the different characters on different occasions cannot be made any basis to convict the accused/appellant under Section 304B of IPC. 15

32. So far as letter of Article -10 C is concerned, this letter was not discovered during investigation but it was later produced by the complainant. According to the evidence of Kishan Dubey (PW-11), in the letter given to him the deceased has not only mentioned her name but also appended her signature, however, the letter of Article 10-C does not contain name & signature of the deceased. Furthermore, the prosecution has also not taken any steps to send this document to handwriting expert for obtaining the opinion of the handwriting expert by summoning the admitted writing of the deceased. Being so, the so-called letter written by the deceased to her parents cannot have any evidentiary value in the eye of law.

33. Taking into consideration all the above factors, we find that the circumstances create doubt about the participation of accused/appellant in the crime in question and the benefit of doubt has to be given to her.

34. In the result, the appeal is allowed. Conviction and sentence of accused/appellant under Section 304-B of the IPC are hereby set aside and she is acquitted of that charge by extending her benefit of doubt. She is reported to be in custody, therefore, she be released forthwith if not required to be detained in connection with any other offence.

                     Sd/-                                                     Sd/-
              (Pritinker Diwaker)                                       (C.B. Bajpai)
                    Judge                                                  Judge

roshan/-

Unlock Advanced Research with PRISMAI

Chattisgarh High Court