Delhi District Court
404/04, U/S 302/304B/4/498A/34 Ipc, ... vs Anand on 13 October, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 13/3/08
State
Versus
1- Anand S/o Harpal
R/o H.No.2/138,
Gali no.6, Harijan Basti
Sarai Rohilla, Delhi
2- Phoolwati W/o Harpal
R/o H.No.2/138,
Gali no.6, Harijan Basti
Sarai Rohilla, Delhi
3- Laxmi Devi S/o Harpal
R/o H.No.2/138,
Gali no.6, Harijan Basti
Sarai Rohilla, Delhi
4- Harpal S/o Sh.Sant Ram
R/o H. No. 2/138,
Gali No.6, Harijan Basti
Sarai Rohilla, Delhi.
Case arising out of :
FIR No. 404/04
U/S: 302/304B/498A/34 IPC
P.S. Sarai Rohilla
Date of FIR : 06.08.2004
Date of Institution : 19.12.2008
Date of Final Arguments : 18.09.2010
Judgment reserved on : 18.09.2010
Date of judgment : 27.09.2010
S.C. No. 13/3/08 Page1/43
JUDGMENT
This judgment shall dispose of the case arising out of the FIR No. 404/04, U/s 302/304B/4/498A/34 IPC, PS: Sarai Rohilla State V/s Anand & Other.
Charges levelled against the accused persons are that on 18.02.02 that Pooanm @ Anita was married to the accused Anand at 2/138, Gali no.6, Harijan Basti, Delhi. Anand being her husband, Harpal being her father in law, Phoolwati being her mother in law and Laxmi Devi being the sister in law in furtherance of their common intention has subjected her to cruelty and further under normal circumstances within seven years of her marriage and shown that soon before her death and above named accused persons being husband and other accused persons being relatives of her husband subjected to Poonam @ Anita to cruelty and she was harrased in connection with the demand of dowry and committed an offence of dowry death of Poonam @ Anita on 10.08.2004 at about 8:10 a.m. by setting her on fire and caused her death and thereby committed an offence punishable under section 302/304B/498A/34 IPC and they pleaded not guilty and wanted to contest the case.
The prosecution story are that in the intervening night of 5th and 6th August 2004 at about 02:25 AM, a call was received and endorsed vide DD No. 5B, on receiving a call that a lady patient appear in burning condition at JPN Hospital. PW12 ASI Brijeshwar Kumar alongwith Ct.Devender reached at JPN Hospital and collected the MLC of Poonam @ Anita who was unfit to make the statement because of burn injury. ASI Brijeshwar gave this information to the SHO through Duty Officer. On the direction of the SHO, ASI Brijeshwar Kumar visited the spot S.C. No. 13/3/08 Page2/43 where crime team was also called. The official of crime team took the photographs of the spot and other incriminating article and prepared the crime report. Thereafter PW12 ASI Brijeshwar Kumar again went to the hospital. SHO and SDM also come to the hospital in the morning and injured was declared fit to make the statement on which SDM PW13 Dharampal recorded the statement of Poonam @ Anita. SHO made endorsement on the statement recorded by SDM and got the case registered through Ct. Devender. Further investigation of the case was assigned to Additional SHO Insp. Daya Nand. ASI Brijeshwar Kumar again came back to the spot where the Addl. SHO with Ct. Devender also reached after registration of the case. PW1 ASI Brijeshwar Kumar handed over the crime team report to Addl. SHO Dayanand. He took over the possession of burnt clothes of the injured and prepared pullanda and also seized the pieces of broken bangles, one lighter filled with liquid and one empty plastic bottle which was smell of spirit and prepared seizure memo. Both the seizure memo bear his signatures Ex.PW5/A pertains to burnt clothes of the deceased vide seizure memo Ex.PW12/A, empty bottle Ex.P2 and burnt cloth piece are collectively Ex.P3. Ex.P4 are the pieces of broken bangles collectively and Ex.P5 is the plastic lighter.
PW13 Sh.Dharampal, SDM recorded the statement of the injured Poonam @ Anita (since deceased) after declaring fit for giving the statement same is Ex.PW13/A. After recording the statement, he made the endorsement vide Ex.PW13/B. On 10.08.07, Poonam @ Anita was declared dead in the hospital then PW13 SDM Dharampal conducted inquest proceedings and also prepared form 25.35 vide Ex.PW13/C. The brief facts are given by SDM are Ex.PW13/D and the request for S.C. No. 13/3/08 Page3/43 conducting postmortem is Ex.PW13/E. He also recorded statement of Smt.Savitri, mother of the deceased vide Ex.PW6/A, Rakesh brother of the deceased statement is Ex.PW8/A and SDM handed over the dead body to legal heirs after the postmortem.
PW16 Insp. Daya Nand after receiving the investigation prepared the site plan Ex.PW16/A. He prepared two pullandas of clothes at the spot vide seizure memo Ex.PW5/A and the same were sealed with the seal of DN. He also collected some bangles, a lighter vide memo Ex.PW12/A. After the death of the deceased, the post mortem was got conducted. Dead body was handed over to her relatives vide Ex.PW8/B. He also recorded statement of witnesses, neighbourers and other relatives. He arrested the accused Anand (Husband of the deceased) and Phoolwati (Motherinlaw of the deceased) on 12.08.2004 vide arrest memo Ex.PW16/B and PW4/B and their personal search was conducted vide memo Ex.PW16/C and Ex.PW3/A. On 12.08.04, h e had arrested the accused Harphool (Fatherinlaw of the deceased) vide arrest memo Ex.PW4/A and conducted personal search vide memo Ex.PW4/B. On 15.10.04, he had arrested Laxmi Devi (Sisterinlaw of deceased) vide arrst memo Ex.PW4/B and her personal search conducted vide Ex.PW4/A. Insp. Daya Nand collected FSL result vide Ex.PW16/E. He collected the photographs and identified the case property i.e. plastic bottle, salwar suit etc. After completion of the challan, the case was filed in the court and after compliance of the committal proceedings case was assigned.
In order to prove to prove the charge, prosecution examined Smt. Savitri Devi PW6, mother and PW8 Rakesh Kumar, elder brother S.C. No. 13/3/08 Page4/43 of the deceased Poonam @ Anita and in all total 16 witnesses examined after completion of the prosecution evidence, the statement of the accused persons under section 313 Cr.P.C. were recorded and all the incriminating evidence led by the prosecution were put to the accused persons for which they denied the same as false and incorrect. The accused Anand in his deposition admitted that Poonam @ Anita was married to him on 18.02.2008. He further stated that he has been falsely implicated in this case and Poonam @ Anita was being treated with love and affection by him as well as all other members of the family. No demand of dowry was made at any point of time whether after or before marriage and on any other occasion including the Pillia ceremony of the child born to Poonam @ Anita. There is no demand of any motorcycle or any other article or money from their side to Poonam @ Anita or to her mother and brother. Poonam @ Anita deceased sustained burn injuries while working in the kitchen. He and other family members extinguished the flames and admitted her in the hospital. Subsequently a false case has been fabricate against him and other family members. He and other family members are innocent and had not committed any offence. Similarly statement of other accused Harpal, Phoolwati and Laxmi were also recorded. All the accused persons wanted to lead the defence evidence. Ample opportunities were granted to accused persons but they had not examined any defence witness so opportunity to lead defence evidence was closed.
I have heard arguments of Ld.APP for the State and counsel for the accused persons and also gone through the material on record and authorities cited by the counsel.
Ld. Addl. P.P. for the state submitted that Prosecution examined all S.C. No. 13/3/08 Page5/43 the material witnesses and proved the allegations against the accused persons. The death of the deceased Poonam @ Anita was unnatural due to burn injury. The deceased in her statement before the SDM made clear and categorical allegations against the accused persons including her husband Anand specifically with respect to the harassment and cruelty and demand of dowry as well as elicit relationship with some other lady. Similarly, the deceased has also leveled the allegations of abetment and actively participation in the commission of crime against all the accused persons.
PW13 Dharam Pal, SDM in his cross examination admitted that he did not record the statement of any doctor that patient remained fit to make the statement but denied to get the patient identified by any other responsible person.
Addl.PP for the State further submitted that PW6 Savitri Devi mother of the deceased told that she received a telephonic call from her daughter Poonam @ Anita regarding harassment by her in laws and having elicit relations of her husband with some girl. The deceased Poonam @ Anita also told her on telephone at Hyderabad about the illicit relations of her husband. She also stated that her daughter has been burned in fire by her in laws. She stated that at the subsequent call regarding harassment by her in laws which she got recorded in her statement to the SDM. At the time of marriage of deceased Poonam @ Anita, they were residing at Hyderabad as she has house there, but they had come to Nahari Gaon to solemnize the marriage.
PW8 Rakesh Kumar admitted in his examination that marriage of Poonam @ Anita took place at native place of village Nahari. After some S.C. No. 13/3/08 Page6/43 time, all accused started harassing the deceased on account of inadequate dowry and used to taunt by say that they expected Motorcycle in the marriage. His sister Poonam @ Anita used to tell him about demands of dowry made by the accused person. In the year 2004, accused Anand and his sister Laxmi Devi visited the house at Hyderabad. Laxmi Devi sister of accused Anand asked to mother Savitri Devi to give motorcycle. He persuaded the couple and sent them back to Delhi. His sister was not treated with any misbehaviour even after not giving the motorcycle rather the accused persons used to keep the deceased properly. The fatherin law of deceased insulted her by saying that she brought the items worth Rs.10/ only and ate meals worth more than Rs.100/. SDM recorded the statement of Rakesh Kumar on 10.08.08 vide Ex.PW8/A. The other witnesses are police officials who has joined the investigation and witnesses of execution of the documents prepared during course of investigation. The doctor concerned proved the MLC and post mortem report of the deceased Poonam @ Anita.
Ld. APP for state further argued that when the statement of the deceased was recorded by the Ld. SDM, after obtaining the fitness certificate from the doctor concerned and in the statement, the deceased made clear consistent allegations against the accused persons for cruelty , harassment and demand of dowry and murder. The accused Anand poured oil like kerosene upon the body of the deceased and other accused persons put fire of flames on her and also abetted to the accused Anand to eliminate the deceased in fire. The deceased Poonam @ Anita given her statement to the SDM of her own free will and without any influence. The true, consistence dying declaration made by the deceased itself is S.C. No. 13/3/08 Page7/43 conclusive evidence to bring home the guilt of the accused persons. The deceased died at her matrimonial house and at the time of incident, the accused persons were present. There were four accused persons present at the spot, but none of them tried to extinguish the fire, if the fire had extinguished, the deceased Poonam would have alive. The Ld. Defence counsel did not make any whisper to deny about the illicit relation of accused Anand with some other lady Renu. The statement given to the SDM is treated as dying declaration which is unimpeachable in nature and deposed by the deceased Poonam @ Anita from her own free will without any pressure. The dying declaration made by her does not suffer from any infirmity and found worthy of reliance and may form the basis of conviction. The incriminating articles like bottle of kerosene oil, lighter and burnt clothes were seized from the spot.
Ld. APP for state further submitted that all the material witnesses have proved the charges against the accused persons and deposition made by prosecution witnesses are trustworthy, believable and complete the chain of evidence to bring home the guilt of the accused persons as per the charges framed against them, as such all the accused persons are liable to be convicted.
Per contra, Ld. Defense counsel submitted that prosecution measurably failed to prove its case against the accused persons as the main witness of the Prosecution are PW6 Savitri Devi being declared hostile and in cross examination by the defence counsel, she had not supported the case of the prosecution, she admitted that she did not remember if the accused persons had demanded motorcycle when they visited on the occasion of pillia. She further stated that after delivery of a S.C. No. 13/3/08 Page8/43 male child, Poonam @ Anita came to Hyderabad. She stated that the accused Anand had illicit relations with some girl whose name she does not remember. She further stated that she does not remember that accused person demanded motorcycle on the occasion of Pillia. In cross examination by the defence counsel PW6 Savitri mother of the deceased admitted that Anita @ Poonam was not happy with accused Anand due to extra marital relation with some other lady.
It is further submitted by Ld. Defence counsel that the prosecution has not been able to prove its case beyond all reasonable doubts. The deposition made by the prosecution witnesses does not inspire confidence. Their testimony are full of contradictions and the investigation as carried is tainted, defective and unfair. The case of the prosecution is surrounded among the deposition of PW3 Chanderwati who is declared hostile and has not supported the case of the prosecution on any point of time. She was also cross examined by Ld. APP for state in which she confronted from her statement under section 161 Cr.P.C. PW6 Smt. Savitri Devi, mother of the deceased has also not made any allegations on any demand of dowry made by the accused persons or any other relative from the deceased and the family members of the deceased. PW6 Savitri Devi was also declared hostile by Ld. APP for state and she has also been cross examined by Ld. APP for state and she confronted from her statement under section 161 Cr.P.C. Even when daughter Poonam @ Anita was admitted in the Irwin Hospital and she met to her deceased daughter Poonam @ Anita who told her that there was a quarrel between the husband and wife and as such this incident took place. The deceased Poonam has given birth to a male child at the time of Chhuchak S.C. No. 13/3/08 Page9/43 Ceremony there was a demand of motorcycle and cash. In the cross examination of Ld. APP for state,it is admitted that the deceased Poonam @ Anita prior to two and a half month of her death asked to come to Delhi complaining that her inlaws family was harassing her. She does not remember if her daughter told that her Nandoi was keeping an evil eye on her or he was instigating her inlaws against her or he used to force her husband to consume liquor. She also received a telephonic call from the deceased Poonam @ Anita regarding harassment to her by her inlaws which she got recorded in her statement made to the SDM. It is also admitted that the deceased used to be harassed for the want of motorcycle and Rs.50,000/ cash.
It is further contended that PW8 Rakesh Kumar in his deposition before the court has specifically stated that there was no talk about the dowry took place before the marriage. Upto six months after the marriage, everything went all right. The deceased used to tell about the demands of dowry, the allegations made are general in nature. There is no specific date of the event of allegations made. PW8 Rakesh Kumar in his cross examination admitted that the deceased might have died due to extra marital affair of her husband Anand.
It is further contended by Ld. Defence counsel that as per the certificate of fitness endorsed on the MLC was made at about 09:45 PM. However, the statement of the deceased was recorded by PW13 Dharampal, SDM at around 11:15 PM to 11:45 PM. During this period, no fitness certificate was obtained from the doctor nor any statement was recorded by or in presence of doctor or any other witness.
PW16 Insp. Daya Nand is the investigating officer who has S.C. No. 13/3/08 Page10/43 not conducted the investigation in a fair manner. The vital evidence from the spot has not been collected. He is silent about some clarifications with respect to the scene of crime. In cross examination on behalf of the accused persons, it is admitted that he did not collect any photograph of any other portion of the house where the deceased and the accused were living. It is also admitted that none of the photographs show the open space adjacent to the residential premises of the parties. The MLC of Anita mark 16/DA shows that her motherinlaw has stated that the patient received injuries while cooking at her house. It is also admitted that the photographs Ex.PW10/A1 to A4 do not show any marks of burning on the articles and furniture lying there. He cannot say if the lighter seized from the spot was sent to the CFSL or not. He cannot say whether the lighter seized from the spot was functional or not. It is further admitted that the plastic bottle seized from the spot was empty and dry. No residue of kerosene has been detected. He did not call any neighbour to join the investigation at the time of seizing the articles. He did not make any inquiry about Rani, mentioned in the statement of the deceased Poonam @ Anita nor he can tell about the whereabouts of Diwan Chand as he noted the name of Diwan Chand. When he reached at the spot and met ASI Brijeshwar, there was no kitchen in the said room or adjoining one. He did not visit the kitchen of the accused persons which they used. It is further contended that this is a false case and accused persons have been falsely implicated in the present case. The deceased Poonam @ Anita was being treated with love and affection by the accused persons. None of the accused persons made any demand of dowry at any point of time. There was no demand of any motorcycle or any other S.C. No. 13/3/08 Page11/43 article or money by the accused persons. The deceased sustained burn injuries while working in the kitchen. The accused persons extinguish the flames and the accused Phoolwati got her daughterinlaw Poonam @ Anita admitted to the hospital. Subsequently, a false case has been fabricated against the accused persons and they are innocent. Therefore, all the accused persons are liable to be acquitted.
In view of the above said contentions and the material placed on record, the case of the prosecution in a nutshell is that the deceased Poonam @ Anita whose murder charges faced by the accused persons with allegations of poring kerosene like oil or petrol and subjected her before the flames of fire. The deceased Poonam @ Anita was harassed and treated with cruelty in connection with the demand of dowry and the accused was having illicit relationship with some other lady. The accused persons facing trial for the charges for the offence under section 498A/304B/34 IPC and in the alternative under section 302 IPC read with section 34 IPC thereof.
The prosecution in order to establish the case against the accused persons, examined 19 witnesses in respect to its case. On the other hand, the accused persons in their statement under section 313 Cr.P.C. shown their inclination to examined the defence witnesses. However, despite ample opportunities granted, no witness was produced in their defence.
PW13 Dharampal, the then SDM who recorded the statement of the deceased Poonam @ Anita on 06.08.2007 between 11:15 AM to 11:45 AM in LNJP hospital. On the same day, she was admitted in the hospital. Ld. SDM Dharampal received an information at about S.C. No. 13/3/08 Page12/43 05:25 AM through SHO Insp. Ishwar Singh that one married lady has been admitted in LNJP Hospital after sustaining burn injuries at her matrimonial house i.e. at residence 2/138, Gali No.6, Daya Basti, New Rohtak Road, Harijan Basti, New Delhi within seven years of her marriage. SI Lakhanpal informed at about 09:45 AM that the patient has been declared fit for giving statement. Then PW13 Dharam Pal reached at LNJP Hospital at about 11:00 AM and found the patient Poonam @ Anita in Burn Ward No.20, Bed No.2 and recorded her statement vide Ex.PW13/A and obtained toe impression at point A. On 10.08.2007, Addl. SHO informed that the Poonam @ Anita was declared dead in the hospital and inquest proceedings were prepared and also made a request for conducting the post mortem vide Ex.PW13/E. PW13 Dharam Pal also recorded the statement of Savitri, mother of the deceased vide Ex.PW6/A and Rakesh brother of the deceased vide Ex.PW8/A. He also passed the directions to hand over the body to legal heirs after the post mortem.
PW6 Savitri Devi mother of the deceased whose statement was recorded by the SDM on 10.08.2004 and similarly the statement of PW8 Rakesh Kumar brother of the deceased was recorded by the SDM. PW6 Savitri Devi testified that her daughter Poonam @ Anita told that the accused Anand has illicit relations with some girl whose name she does not remember. Her daughter had telephoned her at Hyderabad about one month prior to this occurrence stating that her husband was not keeping her in good humour as he had some illicit relations with a girl and asked her to come to Delhi. She sent her son Rakesh to Delhi on receiving an information that Poonam @ Anita was met with an accident S.C. No. 13/3/08 Page13/43 of fire. Then on receipt of this information, she reached at Delhi and rushed to the hospital where she asked from her daughter how she sustained injuries, the injured daughter replied that " Bir Mard Ka Jhagda Hai" there was a quarrel between the husband and wife and in the meanwhile, the injured Poonam became unconscious. She was also put for cross examination by Ld. APP for state and in the cross examination, she stated that two and a half months of her death, the deceased asked to come to Delhi complaining that her inlaws family was harassing her. She also received a telephonic call from the deceased Poonam @ Anita regarding harassment by her inlaws. The deceased used to be harassed for want of motorcycle and a sum of Rs.50,000/. But she does not remember if the accused persons had demanded a motorcycle when they visited on the occasion of Pillia.
PW8 Rakesh Kumar brother of the deceased also made a statement before the Ld. SDM and deposed that when the motorcycle was not given as such the deceased used to be harassed by the accused persons. His sister did not make any complaint against the accused persons except the demand of motorcycle. The deceased asked for her mother to give motorcycle. Both the witnesses also put for cross examination on behalf of accused persons and during their cross examination, it has been categorically denied by them that the deceased did not make any complaint against her inlaws about the harassment, cruelty and extra marital relationship with a lady. It is also denied that Anita @ Poonam was never harassed by accused persons nor demand any motorcycle or any cash.
PW17 Dr. Arvind Mohan proved the MLC No.106551 of S.C. No. 13/3/08 Page14/43 Poonam @ Anita aged 25 years female which was prepared by Dr. Shikha Dungra and Dr. A. Rahman vide Ex.PW17/A. PW18 Dr. Prabhat Srivastava identified the signature of Dr. Kavish Rohtagi who prepared the death summary of the deceased Anita vide Ex.PW18/A. 75% of the burn injuries on the total body surface area. The cause of death is septicemia consequent upon burn injuries involving about 75% of the total body surface area. All injuries were ante mortem could be caused due to flames of fire.
The dying declaration recorded by the SDM was challenged by the Ld. Counsel for the accused persons on the ground that it does not bear the endorsement of the doctor who certified the fitness of patient. It has been contended on the ground that the deceased sustained injuries to her body portion of 75% of total surface area and at the relevant time whether she was fit to make statement before the SDM and Ld. SDM not recorded her statement in presence of the doctor who treated and medically examined the deceased. The obtaining of a certificate of fitness from the doctor before recording a dying declaration is seem to be doubtful/fabricated.
The contention on the requirement of obtaining a certificate of fitness from the doctor, before recording dying declaration. To this effect in Paparambaka Rosamma & Ors. Vs State of Andhra Pradesh, 1997 (7) SC 695, the dying declaration in question had been recorded by a Judicial Magistrate and the Magistrate had made a note that, on the basis of answer elicited from the declarant to the questions put, he was satisfied that the deceased was in a fit disposing state of mind to make a declaration. The doctor had appended a certificate to the effect that the S.C. No. 13/3/08 Page15/43 patient was conscious while recording the statement. Yet the court came to the conclusion that it would not be safe to accept the dying declaration as true and genuine and that it was made when the injured was in a fit state of mind, since the certificate of the doctor was only to the effect that the patient was conscious while recording the statement. However, in a Koli Chunilal Savji & Anr. Vs State of Gujarat: 1999 later decision ' VIII AD (SC) 426=1999 (9) SCC 562, it was held that the ultimate test is whether the dying declaration can beheld to be a truthful one and voluntarily given. It was further held that before recording the declaration the officer concerned must find that the declarant was in a condition to make the statement in question. The court relied upon the earlier decision Ravi Chander VS State of Punjab: 1998 (9) SCC 303, wherein it had in ' been observed that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made, need not be doubted. The Magistrate being a disinterested witness and a responsible officer and there being no circumstances or material to suspect that the magistrate had any animus against the accused or was in anyway interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the magistrate does not arise.
The apparent conflict in the aforesaid two decisions both of which were three Judges' Bench decisions, came to be resolved by a Constitution Bench of the Supreme Court in Laxman Vs State of Mahaashtra 2002 VII AD (SC) 1, the Constitution Bench inter alia held as under : " The court insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness S.C. No. 13/3/08 Page16/43 and correctness. The court, however has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable.
What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the court ultimately hold the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise.
We have no hesitation in coming to the conclusion that the observations of this court in Paraprambaka Rosamma & Ors. Vs State of Andhra Pradesh 1999 (7) SCC 695 to the effect that " In the absence of a medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a magistrate who opined that the injured was in a fit state of mind at the time of making a declaration has been broadly S.C. No. 13/3/08 Page17/43 stated and is not the correct enunciation of law.
In Sukanti Moharana Vs State of Orissa: 2009 VIII AD (S.C.) 337=JT 2009 (9) SC 697, dying declaration of the deceased by recorded by a lecturer in the Surgery Department of the hospital where she was taken. She also made an oral dying declaration to her relatives. The dying declaration recorded by the doctor was challenged on the ground that it did not contain any fitness certificate that she was in a stable mental and physical condition to make such a statement. The dying declaration in that case also did not contain the signature or thumb impression of the deceased. However, there was an endorsement on the Bed Head Ticket which indicated that as per the history given by the deceased herself the treating physician had endorsed that it was a case of homicidal burn due to ignition caused by spilling of kerosene. Rejecting the challenge it was held by the Supreme Court that the ultimate test was as to whether dying declaration was truthful or voluntary.
In Nallapati Sivaiah Vs SubDivisinal Officer, Guntur, A.P.: 2007 IX AD (SC) 73=AIR 2008 SC 19, the Supreme Court reiterated that there is no requirement of law that the dying declaration must necessarily contain a certification by the doctor that the patient was in a fit state of mind especially when the dying declaration was recorded by a Magistrate. It was further held that it is the testimony of the Magistrate that the declarant was fit to make statement that gains importance and that reliance can be placed upon such a declaration, even in the absence of the doctor, provided the court ultimately hold the same to be voluntary and truthful.
Thus, the settled legal proposition with respect to a dying S.C. No. 13/3/08 Page18/43 declaration is that though it is not necessary to obtain a certificate or endorsement from a doctor about fitness of the maker to make a statement nor is it necessary that a doctor should be present at the time the dying declaration is recorded, the court needs to ensure that the deceased was not tutored or prompted before she made the statement and that the statement made by her was not a product of his/her imagination. The court further needs to satisfy itself, from the evidence produced before it and other facts and circumstances of the case that the deceased, at the time she made the statement was in a fit state of mind and was making a voluntary statement. If this is so, there is no rule of law which requires any corroboration of the dying declaration and it is legally permissible and open to the court to base the conviction solely upon such a dying declaration. The Supreme Court in Nanahau Ram & Anr. Vs State of M.P. : AIR 1988 SC 912 observed that normally the court in order to satisfy whether the deceased was in a fit medical condition to make the dying declaration looks up to the medical opinion, but where the eyewitnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion cannot prevail over it.
Though the dying declaration recorded by a Magistrate by itself is not a proof of its truthfulness, it is indeed entitled to a great weight and normally needs to be accepted, be it is found acceptable after passing the test of scrutiny by the court. The ultimate test in every case would be as to whether the dying declaration can be said to be trustful and voluntarily made.
In the present case PW13 Dhraram Pal, SDM categorically stated that he received the information at about 05:45 AM through SI S.C. No. 13/3/08 Page19/43 Lakhan Pal reached at the LNJP Hospital at about 11:00 AM. The injured Poonam was found admitted in the Burn Ward and he recorded her statement vide Ex.PW13/A. He obtained the toe impression at point A. Her statement was recorded between 11:15 AM to 11:45 AM. In the cross examination on behalf of defence counsel, PW13 Dharam Pal further testified that he did not ask the attendant doctor for endorsement before recording the statement of the injured Poonam @ Anita. The endorsement was already made on the MLC and the patient was identified by the investigating officer and the attendant doctor. It is denied that he did not pen down the statement of Poonam, the victim and some relative of the deceased or that he has not obtained any endorsement on any doctor on the statement Ex.PW13/A. PW16 Insp. Daya Nand received the investigation from ASI Brijeshwar Kumar and prepared the site plan; pulandas of the articles received from the place of occurrence and collected the MLC; post mortem report of the deceased; arrested the accused persons and prepared their arrest memos & personal search memos.
On careful scrutiny of the evidence, the deceased Poonam @ Anita was in a fit state of mind to make dying declaration recorded by the SDM. As regarding the possibility of tutoring, it has not come on record on the deposition of any of the witnesses that the PW6 Savitri and PW8 Rakesh has tutored or whispered any word in the ear of the deceased. Both the witnesses were not present at the time of recording of the statement of the deceased nor at the time of taking the impression of toe. The statement of the deceased also indicated that the none of the family members of the deceased was present at the relevant time when her S.C. No. 13/3/08 Page20/43 statement was recorded. Therefore, it is revealed that the dying declaration made by the deceased was not a product of tutoring on the part of the any of her family members.
Another circumstances, which ruled out the possibility of dying declaration being a product of tutoring by the family members of the deceased is that in the dying declaration, the deceased did not attribute any overt act except to the present accused Anand Kumar than any other person. These circumstances needs to be viewed in the light of the facts that the mother of the deceased in her deposition has stated that the deceased Poonam @ Anita has uttered that " Beer Mard Ka Jhagda Hai." She has not attributed any deposition against the other accused persons before her mother. Had the dying declaration being a product of tutoring, the turn would have put by the deceased not only to her husband Anand but also to the other coaccused or at least to her motherinlaw who has removed the deceased from the spot and admitted her in the hospital. The deceased in her deposition before the Ld. SDM has brought the allegations of cruelty and harassment by demanding a motorcycle and cash of Rs.50,000/ at the occasion of Pillia ceremony and has also made categorically allegations against her husband that he has illicit relationship with some other lady. The dying declaration recorded by the SDM find corroboration from the PW6 Savitri Devi and PW8 Rakesh Kumar before the Ld. SDM PW13 Dharam Pal. Therefore, no ground or circumstances to reject the dying declaration made by the deceased is true. The deposition which is made without any pressure or undue influence.
Ordinarily, offences against married women have been committed within the four walls of a house and normally direct evidence S.C. No. 13/3/08 Page21/43 regarding cruelty or harassment on the woman by her husband or relatives of the husband is not available. Hence, while deciding as to whether a woman was harassed or ill treated by her husband or his relatives, various factors and circumstances can be considered by the court, such as dying declaration of the woman, if any, extra judicial confession by the accused, injuries or burns, if any, on the person of the woman, motive place, time, demand, if any of dowry, physical or mental cruelty shown towards wife, conduct of the husband and also the conduct of th relatives of the husband etc. In a case titled as Gurbachan Singh AIR 1990 SC 209 it was observed that " In case of dowry death, husband was convicted of the offence under section 498A, on the basis of testimony of PW7, who deposed that the deceased had told her that her husband demanded a scooter and scolded deceased for not bringing a cot as dowry and had also shown her the injuries and complained that the accused husband had inflicted the injuries on her failure to bring the scooter. The conviction was held proper" .
In order to succeed in charge under section 498A IPC, the prosecution was required to prove that the accused had subjected the deceased to cruelty as defined in the explanation to the section. It is not every cruelty which is punishable under section 498A IPC. The cruelty, as defined in the explanation to 498A IPC, is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of Hindu Marriage Act. The cruelty, so as to attract penal provisions, contained in section 498A of IPC, has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of S.C. No. 13/3/08 Page22/43 the expression ' willful' in the explanation to section 498A of IPC indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonable expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceived such a behavior. If a woman is harassed with a view to coerce her or by her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to section 498A IPC. Of course, the expression ' cruelty' would take in its ambit mental cruelty as well as physical torture of the woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injurious to her life and safety, such a conduct would attract criminal liability, envisaged in section 498A IPC.
If the woman has harassed on account of her failure or the S.C. No. 13/3/08 Page23/43 failure of her relatives to meet an unlawful demand for property or valuable security, that also constitutes cruelty, within the meaning of section 498A IPC. The expression ' harassment' has not been defined ins section 498A IPC, but its dictionary meaning is to subject someone to continuous vexatious attacks, questions, demands or other unpleasantness, etc. But, it is not harassment of every nature which is punishable under section 498A IPC. In order to attract criminal liability, there should be torture physical or mental, by positive acts. Such acts should be aimed at persuading or compelling the woman or her relatives to meet an unlawful demand of any property or valuable security or its should be actuated by the failure of the woman or her relative to meet such a demand.
In the instant case, there was a demand of motorcycle and cash of Rs.50,000/ from the day of male child was born out of the said wedlock. This fact has been stated by PW6 Savitri Devi and PW8 Rakesh Kumar in their examination as well as suggestions to this effect has been denied in cross examination. It cannot be said that these two witnesses are interested being in relation of the deceased. The witness is not alleging of demand of car or any other article. The facts as happened and narrated by the deceased, same has been explained by these two witnesses. These two prosecution witnesses also stated regarding the illicit relationship of accused Anand with one Renu. These facts are corroborated by the dying declaration vide Ex.PW13/A, whereas the deceased Poonam @ Anita stated that " ....Mere Pati Ke Renu Naam Ki Ladki Ke Saath Najaayaj Sambandh Hai... Mere Ladka Hone Par Usne Motorcycle Ki Maang Ki Thi.... Mere Pati Ki Ye Maang Puri Na Kar Sake, Isiliye Mera Pati Muje Maarta Peetataa Tha..."
S.C. No. 13/3/08 Page24/43Section 498A Explanation (a) defined clearly that any willful 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 ; it does not speak about any demand of dowry. The subject matter is confined to cruelty on atrocities and harassment. The deceased Poonam @ Anita in Ex.PW13/A stated that '...
. Isi Baat Par Naaraj Hokar Mujhe Chappal Aur Dande Se Maarne Laga...."
The dying declaration of the deceased has been found to be true and without any pressure, same has been corroborated by deposition of PW6 Savitri and PW8 Rakesh Kumar. The demand of motorcycle, cash was continued till her death as well as the atrocities of harassment being maltreated, tortured continuly too. Even the Ld. SDM, PW13 Dharampal put the direct questions regarding demand and harassment to the deceased, she gave rational answer that " ...Mera Bhai Akela Kamane Wala Hai Aur Maa Bimar Rahti Hai, Jo Mere Pati Ki Mang Puri Na Kar Saki, Isliye Mera Pati Muje Marta Peetata Hai..."
As regarding to the cross examination by Ld. APP after sought the permission from the court to declare the witness as hostile. These depositions has to be read as a whole, court cannot throw out entire statement of the hostile witness. The part of extract incriminating statement brought on record will be read against the accused persons if found any substance or incriminating brought on record " hostile statement to which extent the testimony of such witness is corroborated or reliable witness acceptable and the evidence of interested witness cannot be thrown out when the testimony is trustworthy, truthful and credible.
S.C. No. 13/3/08 Page25/43Coming to the charge under section 304B of IPC, before a person can be convicted under this section which deals with what is described as ' dowry death', the prosecution must necessarily prove the following ingredients :
(i) The death of a woman must have been caused by burn or bodily injury or otherwise than under normal circumstances;
(ii) Such death must have occurred within seven years of her marriage;
(iii) Soon before her death, the woman must have been subjected to cruelty or harassment by her husband or by relatives of her husband;
(iv) Such cruelty or harassment must be for or in connection with demand for dowry;
(v) Such cruelty or harassment is when to have been meted out to the woman soon before her death;
The term ' dowry' has not been defined in section 304 B IPC, but since this expression has been defined in section 2 of Dowry Prohibition Act, it is required to be given the same meaning for the purpose of under section 304B IPC as held by hon' ble Supreme Court in Satvir Singh & Ors. Vs State of Punjab and Anr. 2001 VIII AD (S.C.) 221= 2001 (4) Crimes 45.
In Satvir Singh (Supra) while dealing with this issue, the hon' ble Supreme Court, inter alia, observed as under :
' Thus, there are three occasions related to dowry. One is before the marriage, second is at the time of marriage and the third is 'a t any time' after the marriage. The third occasion may appear to be an S.C. No. 13/3/08 Page26/43 unending period. But the crucial words are ' in connection with the marriage of the said parties'.
This means that giving or agreeing to give any property or valuable security on any of the above three stages should have been in connection with the marriage of the parties. There can be many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of ' dowry'.
Hence, the dowry mentioned in section 304B should be any property or valuable security given or agreed to be given in connection with the marriage.
In case titled as Appasaheb & Anr. Vs State of Maharashtra, 2007 II AD (S.C.) 417= AIR 2007 SC 763, the hon' ble Supreme Court observed as under : ' In view of the aforesaid definition of the word ' dowry' any property or valuable security should be given or agreed to be given either directly or indirectly at or before or any time after the marriage and in connection with the marriage of the said parties. Therefore, the giving or taking of property or valuable security must have some connection with the marriage of the parties and a correlation between the giving or taking or property or valuable security with the marriage of the parties is essential. Being a penal provision it has to be strictly construed. Dowry is a fairly well known social custom or practice in India. It is well settled principle of interpretation of Statute that if the Act is passed with reference to a particular trade, business or transaction and words are used which everybody conversant with that trade, business or transaction knows or understands to have a particular meaning in it, then the words S.C. No. 13/3/08 Page27/43 are to be construed as having that particular meaning. A demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. The evidence adduced by the prosecution does not, therefore, show that any demand for ' dowry' as defined in Section 2 of the Dowry Prohibition Act was made by the appellants as what was allegedly asked for was some money for meeting domestic expenses and for purchasing manure.' Therefore, so far as ingredients of section 304B, it is undisputed fact that the deceased was married with accused Anand and death was due to burn injuries within seven years of marriage. The cruelty or harassment made by the accused persons with respect to the demand of motorcycle and cash which has been continuous from birth of child till death of deceased Poonam@ Anita. The accused Anand Kumar being the husband of the deceased played more aggravated role in this episode, as he himself given beatings or maltreated the deceased and also had illicit relation with one Renu. This is also brought through the evidence of PW6 Savitri, PW8 Rakesh Kumar and PW13 Dharampal, SDM who recorded the dying declaration Ex.PW13/A. The deceased Poonam stated in Ex.PW13/A that " .... Mera Pati Muje Maarta Peetata Tha ...." PW6 Savitri stated "i t is correct that the deceased used to be harassed for want of motorcycle and Rs.50,000/" . In cross examination on behalf of accused persons further stated that "... I had talked with Anita just fifteen days prior to the incident when she lodged complaint against her inlaws about harassment and asked me to take her back because accused Anand was having some extramarital relation with a lady..." It is S.C. No. 13/3/08 Page28/43 unnatural death. The PW8 Rakesh Kumar corroborated the allegation of demand of motorcycle, car and harassment, cruelty upon the deceased Poonam @ Anita. Thus the testimony of the prosecution witnesses are credible and inspire confidence to bring home the guilt of the accused Anand for the offence under section 304B IPC.
In a serious case like murder, investigation must be fair, honest and above board. There should not be undue or undesirable delay in investigation or crime. Unexplained delay in recording statement of witnesses may throw doubt on the bonafides of the prosecution case. Inordinate delay may raise suspicion and may give rise to the suggestion that the investigation may not be impartial and unbiased. If the investigation officer deviates from truth on a minor point, his evidence may not be discarded altogether though the court may not place implicit reliance on his evidence. Laxity in investigation causing inconsistencies in the case of the prosecution may be regarded as fatal and the court may grant benefit of doubt to the accused. But where there is sufficient evidence on record, which is otherwise reliable minor deviations may not affect the case of the prosecution. Similarly, though delay is undesirable, in absence of hostile animus or motive to implicate the accused falsely,no adverse inference can be drawn against the prosecution.
Defective investigation may discredit the prosecution, but prosecution evidence may not necessarily be discarded on that ground. If the evidence is otherwise reliable and trustworthy, the court may convict the accused. Reminiscence of investigating officer will not ipso facto weaken the case of the prosecution. Courts should not be influenced by suspicious roles played by the investigation officer during investigation S.C. No. 13/3/08 Page29/43 and criminal justice should not be made a casualty for wrongs committed by investigating officers. In cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting an accused person solely on account of the defect and to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.
In case titled as Akbar & Anr. Vs State 2010 III AD (Delhi) with reference to the decisions of the Supreme Court reported as Tahsildar Singh Vs State of UP AIR 1959 SC 1012, Bharwada Bhoginbhai Hirjibhai Vs State of Gujarat AIR 1983 SC 753 and Leela Ram Vs State of Haryana AIR 1997 SC 3717, 13 principles to be followed while evaluating evidence of eye witnesses were culled out being :
(i) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(ii) If the court before whom the witness given evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to S.C. No. 13/3/08 Page30/43 reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(iii) When eyewitness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(iv) Minor discrepancies on trivial matters not ouching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(v) Too serious a view to be adopted on mere variations falling in the in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(vi) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(vii) Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(viii) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person' s mind whereas it might go unnoticed on the part S.C. No. 13/3/08 Page31/43 of another.
(ix) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(x) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(xi) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(xii) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events,or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnesses by him.
(xiii) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction.
(xiv) Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to S.C. No. 13/3/08 Page32/43 some extent it would not be helpful to contradict that witness.
So far as, as regard to contradictions or defect as pointed out by defence counsel are not much effect the prosecution case, same are due to lack of skill of the investigating officer or natural one. The variations in deposition of prosecution witnesses also does not go to the root of the case, same are natural and bound to be occurred, which could not help the accused persons in any manner.
The contentions raised by defence counsel in statement under section 313 Cr.P.C. that Poonam @ Anita sustained burn injuries while working in the kitchen and accused persons extinguished the flames. It has not been brought by the accused persons whether the deceased was cooking the food etc. on gas Chulha or kerosene oil stove, what was the location of it. If this fact is in the knowledge of the accused persons, then in such circumstances, they have to prove it. The accused persons never made suggestions to this effect to any witness,accused nor sustained any burn injuries if extinguish the flames of fire.
Under section 106 Evidence Act, if any fact, specially knowledge of accused, if not satisfactorily explained, it is a factor with the accused while corroborating the totality of the circumstances, this view was observed in case titled as State of Punjab Vs Karnail Singh, (2003) II SCC 271.
As regarding to dried of kerosene bottle or spirit/petrol, it is natural phenomenon that the petrol or spirit substance will be vaporised with the passage of air and its substance could not be remain on the body or cloths of the deceased or in bottle. The litter as recovered from the spot does have fuel of flameable oil. There is no quantity of its nonfunctional S.C. No. 13/3/08 Page33/43 of litter. The kerosene oil flame the substance bottle with cap or without cap will not have negative effect on the prosecution case since the liquid in bottle have the quality of evaporisation. Since there are deposition of occular testimony of prosecution witnesses, the expert opinion is mere to corroborate the testimony of the witnesses. In Kanwaljit Singh Vs State of Punjab, 2004 Cri. L.J. 28 (SC), observed that unless the oral evidence in its terms goes so far as to completely rule out all possibilities, whatsoever of incident taken place in the manner stated by the eye witnesses, the testimony of eye witnesses cannot be thrown out.
The charges against the accused persons were framed under section 304B IPC alternatively for the offence under section 302 IPC. As per the post mortem report, the injuries as shown in the body of the deceased are caused death due to burn injuries and there was no cut wound injuries or legislature mark or tenderness in the body of the deceased. The death of the deceased was caused due to 75% burn injuries due to flames of fire. The medical jurisprudence draw a table showing difference between suicidal death and homicidal death and came to the conclusion from the material placed on record as well as from the medical evidence and dying declaration of the deceased that the death of the deceased not a suicidal death but it was a homicidal death.
Dr. Amit Sharma deputed to prove the port mortem report in place of Dr. Vinod Kumar Ranga. The post mortem report Ex.PW21/A opined the cause of death as septicemia consequent upon burn injuries involving about 75% of the total body surface area. All injuries are ante mortem and could be caused due to flame of fire. Therefore, in this case, there is no mark of struggle nor other external injuries and no other S.C. No. 13/3/08 Page34/43 evidence to show that the deceased poured kerosene like oil herself to commit suicide. Therefore, it is proved that this is a case of homicidal death. The deceased was the only eye witness and the victim in the hands of the accused Anand. She herself has stated in Ex.DW13/A that the accused Anand used to beat her with chappal and danda blow and also put her in the closed room and her husband is the real culprit who put the oil like spirit and flame her in the fire and he himself is liable for her death as due to nonfulfillment of the demands and caused beatings to her. Therefore, the case of the prosecution, if it is to be brought under section 304B where the ingredients of section 304B satisfied the section would apply that the death is homicidal and not suicidal, in the natural circumstances, the provision of section 304B would be attracted.
None of the other accused than the accused Anand has attributed any role in the commission of the death of the deceased. There is no definite deposition made by any witness including the deceased that which of the accused has shared the common intention in commission of the offence of homicide rather, the motherinlaw of the deceased has removed the deceased from the place of the incident and admitted in the hospital.
The accused Anand Kumar was married to deceased Poonam @ Anita on 18.02.2002 and died on 10.08.2004 i.e. within seven years of marriage. It is also proved beyond all reasonable doubt that the deceased has been subjected to cruelty or harassment soon before her death which was continued from the birth of child till the death of deceased. There was no sharing of common intention or object to cause the death of the deceased Poonam @ Anita by the other accused persons except the S.C. No. 13/3/08 Page35/43 accused Anand Kumar. Hence provision of u/s 304B is not attracted against the other accused persons except against the accused Anand who is husband of the deceased Poonam @ Anita.
So far as with respect to the other accused persons namely Phoolwati, Luxmi Devi and Harpal, there are sufficient corroborative, trustworthy and believable evidence to bring home the guilt under section 498A/34 IPC. Accordingly, I came to the definite conclusion :
(i) that the accused Anand is hereby convicted for the offence punishable under section 304 (B) and 498A IPC.
(ii) that the accused namely Phoolwati, Laxmi Devi and Harpal are convicted for the offence punishable under section 498A/34 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 27.09.2010 (WEST04): DELHI S.C. No. 13/3/08 Page36/43 IN THE COURT OF SH. SATINDER KUMAR GAUTAM ADDITIONAL SESSIONS JUDGE (WEST04), DELHI SC NO. 13/3/08 State Versus 1. Anand S/o Harpal R/o H.No.2/138, Gali no.6, Harijan Basti Sarai Rohilla, Delhi. 2. Phoolwati W/o Harpal R/o H.No.2/138 Gali no.6, Harijan Basti Sarai Rohilla, Delhi. 3. Laxmi Devi S/o Harpal R/o H.No.2/138 Gali no.6, Harijan Basti Sarai Rohilla, Delhi. 4. Harpal S/o Sh.Sant Ram R/o H. No. 2/138 Gali No.6, Harijan Basti Sarai Rohilla, Delhi. Case arising out of : FIR No. 404/04 U/S: 302/304B/498A/34 IPC P.S. Sarai Rohilla Order on Sentence 13.10.2010 Present: Sh. Subhash Chauhan, Ld. APP for state. Accused/convicted Anand from J/C.
The other convicted namely Phoolwati, Laxmi Devi and Harpal in person.
Sh. Mukul Sharma, counsel for the all the accused persons.
S.C. No. 13/3/08 Page37/43Heard on the point of sentence and perused the material on record, the convicted Anand has been held guilty for the offence under section 304 (B)/498A IPC and the other convicted namely Phoolwati, Laxmi and Harpal are held guilty for the offence under section 498A/34 IPC, vide judgment dt. 27.09.2010.
Ld. APP for state argued on the point of sentence that the prosecution proved its case against the accused persons beyond all reasonable doubts and submitted that the deceased Poonam @ Anita died a unnatural death. The convicted Anand poured oil like kerosene/petrol and the other accused lit fire upon the deceased, whereas the deceased was burnt 70% on her body and she was removed to the hospital by the convicted Phoolwati, motherinlaw. The deceased gave dying declaration before the SDM wherein made categorically allegations against all the convicted for harassment, cruelty, maltreatment and demand of dowry and killed her in the flame of fire.
It is further submitted that whenever danstardly crimes of this nature are detected and the offence brought home to the accused, the court must deal with the offender most ruthlessly and impose deterrent punishment. Where the accused persons subjected the deceased to cruelty as a result of which the deceased died within seven years of her marriage, the sentence to the imprisonment of life may be awarded.
The minimum sentence is not less than seven years and the maximum sentence can be imprisonment for life. The accused Anand Kumar is not only committed a single crime but he used double edged weapon one way, he caused harassment and maltreated to the deceased and demanded motorcycle and cash, secondly by having illicit S.C. No. 13/3/08 Page38/43 relationship with Renu and also relied upon the judgment of the Apex Court in case tiled as Hem Chand, (1994) 4 SCC 148: 1996 SCC (Cri) 608, where the Apex Court observed that maximum penalty can be awarded only in rare cases. The legislature has by amending the Penal Code and the Evidence Act made penal law more stringent for dealing with and punishing offences against married women. Such stringent laws would have a deterrent effect on the offenders only if they are so stringently implemented to achieve the legislative intent. The practice of giving and demanding dowry is a social evil having deleterious effect on the entire civilized society and has to be condemned by the strong hands of the judiciary. Therefore, prayed that the maximum sentence may be awarded to the convicted Anand and other coaccused.
Ld. Counsel for the convicted submitted that all the accused persons are belonging to very poor background and living in the small hut. The convicted Laxmi is abandoned by her husband 12 years back and having 12 years old child and these both are dependent upon the accused Phoolwati and Harpal. The convicted Anand is the brother of the convicted Laxmi. Harpal and Laxmi are old ailing and suffering from several diseases. The convicted Harpal is unable to walk and could not see properly. The convicted Anand is the only earning member in the family. If all the convicted will remain in the judicial custody, they are at the verge of starvation and likely to die. The convicted Anand remained in judicial custody for more than two years and there is no active role played by the accused persons in the commission of the offence. The deceased died in an accident while preparing the food and there is no foul play committed by the convicted. The allegations of demand of dowry, S.C. No. 13/3/08 Page39/43 harassment and illicit relationship are false and motivated and prayed that lenient view may be taken and convicted may be released on undergone imprisonment.
Keeping in view of the submissions of Ld. APP for state and Ld. Counsel for the convicted and material on record.
Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. Where it relates to offences against women, dacoity, kidnapping, misappropriation of public money and other offences involving moral turpitude or moral delinquency which have great impact and serous repercussions on social order and public interest cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time or considerations personal to the accused only in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by the required string of deterrence in built, in the sentencing system. Leniency in such offences would be really a case of misplaced sympathy. Where the acts which led to the conviction of the accused are not only shocking but outrageous in their contours.
In Kailash Kaur AIR 1987 SC 1368 : 1987 Cri LJ 1127 (SC) and Machhi Singh AIR 1983 SC 957 : 1983 Cri LJ 1457 (SC), it is observed that by the Supreme Court that severe sentence should be imposed on the perpetrators of gruesome murder of young wives who have killed them only for the purpose of extraction of dowry as such cases would fall within the category of rarest of rare cases. In some other cases, S.C. No. 13/3/08 Page40/43 however, the Supreme Court has taken liberal view.
In the present case, the deceased was died within seven years of the marriage and having kids of 11 months, when a lady having a minor child, she cannot wish to die whatsoever atrocities have been suffered by her. The deceased Poonam @ Anita in her dying declaration has categorically made the allegations against her husband Anand Kumar who has lust of motorcycle and money. Even though, he knows the fact that the brother of the deceased is the only earning member and has very limited source of income. The convicted persons have repeatedly committed cruelty and harassment on the deceased. It is also proved that the convicted Anand Kumar having an illicit relationship with a lady namely Renu. The convicted Anand Kumar simply denied this fact without any substance. The death of the deceased took place at her matrimonial home in presence of the accused persons. None of the convicted received any burn injuries on their person which shows that they have made any efforts to save the life of the deceased.
When a dowry death takes place in a matrimonial home, while awarding punishment, court should take notice of the fact that section 304B only raises a presumption and lays down minimum sentence of seven years which may be extended to imprisonment for life. As held by the Apex Court, awarding of extreme punishment of imprisonment for life should be in rare cases and not in every case.
In the instant case, both the parents of the convicted are old aged persons, they have very limited source of income. They are belonging to a very poor family. The convicted Anand Kumar also remained in judicial custody for a sufficient period of time and he is S.C. No. 13/3/08 Page41/43 convicted for to undergo rigorous imprisonment for a period of seven years for the offence under section304 (B) IPC.
So far as section 498A IPC is concerned, the convicted Anand Kumar is also held guilty for the offence under section 498A IPC apart from the other accused Laxmi, Phoolwati and Harpal. It must be an eye opener to the offender and he must realize that he cannot get away merely by paying some amount as fine or by remaining in jail for some time. When the wife was subjected to cruelty and died within seven years, the punishment was enhanced from two years RI to three years i.e. the maximum punishment under section 498A IPC. The mere fact that the accused is neither a habitual criminal nor do they have any criminal antecedents, is hardly an agreement available while dealing with matrimonial cruelty. The Supreme Court observed that it is virtually a matter of shame to civilization that indiscriminate attacks and violence are directed against married women for obnoxious and anti social demand of dowry and the accused are let off imposing freebite sentence 't ill the rising of the court' or ' sentence already undergone' without verifying whether the accused has undergone any sentence. Result is violence against women continues unabated as law loses its deterrent effect.
In case titled as Surya Narayan Panda 1998 Cri LJ 3050 (Ori), it is observed that where the marriage between the husband and wife had been dissolved on the basis of a joint petition filed by the parties, as rancour between is subsided for conviction of the husband under section 498A the period of substantive sentence was reduced to the period already undergone. In conviction of motherinlaw for the offence of cruelty, considering her age, her sentence was reduced to the period S.C. No. 13/3/08 Page42/43 already undergone provided she deposited a fine amount in addition to the sentence.
Therefore, keeping in view of the facts and circumstances and to consider the convicted, the two convicted are women one Phoolwati who is aged about 60 years and other woman Laxmi is aged about 30 years. Apart from it, the fatherinlaw of the deceased, Harpal Singh is aged more than 70 years and suffering from several ailments and facing rigor trial since long. Sentence to seven years RI to his son Anand Kumar is more painful for them.
Therefore, all the convicted namely Anand Kumar, Phoolwati, Laxmi Devi and Harpal Singh are sentenced to period already undergone and fine of Rs.10,000/ each in default of three months simple imprisonment for the offence punishable under section 498A/34 IPC. The accused/convicted Anand Kumar S/o Harpal is sentenced to rigorous imprisonment for seven years for the offence punishable under section304B IPC. The benefit under section 428 Cr.P.C. be also given to the accused, the period already undergone by the accused in judicial custody be set off from the sentence awarded.
A copy of this order as well as of the judgment be given free of cost to all the convicted. File be consigned to Record Room.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court today ADDITIONAL SESSIONS JUDGE
i.e. on 13.10.2010 (WEST04): DELHI
S.C. No. 13/3/08 Page43/43