Jharkhand High Court
Ashru Sao vs State Of Jharkhand And Ors on 3 February, 2016
Author: R.N.Verma
Bench: R.N.Verma
Criminal Appeal (D.B) No.243 of 2013
with
Criminal Appeal (D.B) No.208 of 2013
with
Criminal Appeal (D.B) No.616 of 2015
----
Against the judgment of conviction dated 22.2.2013 and the order of
sentence dated 25.2.2013 passed by the Sessions Judge, Bokaro in S.T.
No.22 of 2012/58 of 2012.
Shibu Mahto, son of Shri Rusan Mahto,
resident of village Chaufan Basti, P.O.
& P.S.Harla,Dist-Bokaro...Appellant [Cr.App.(D.B) No.243 of 2013]
Ashru Sao, son of Ghani Nath Sao,
resident of village-Shivpur Kasmar, P.O & P.S.
Kasmar,Dist-Bokaro....Appellant[Cr.App(DB) Nos.208 of 2013 &
616 of 2015]
VERSUS
State of Jharkhand and another.................................Respondents
For the Appellant :M/s.B.M.Tripathy, Sr. Advocate and
Mr.Mukesh Kumar, Advocate
[In Cr.App.(DB) No.243 of 2013]
For the Informant : Mrs. Vandana Singh, Advocate
For the State : M/s.Ram Prakash Singh, S.K.Srivastava, A.P.P
For the Appellant: Mrs.Vandana Singh, Advocate
[In Cr.App.(D.B) Nos.208 of 2013 and 616 of 2015]
For the Respondents: M/s.B.M.Tripathy, Sr. Advocate and
P R E S E N T
THE HON'BLE MR. JUSTICE R.R.PRASAD
THE HON'BLE MR. JUSTICE R.N.Verma
Reserved on 06.1.2016 Delivered on 3.2.2016
R.R.Prasad, J. All the three appeals arising out of the same case were heard
together and are being disposed of by this common judgment.
The appellant Shibu Mahto of Cr.App.(D.B) No.243 of 2013 was put
on trial along with seven others on the accusation of committing dowry
death of his wife Urmila Devi and alternatively for committing her murder.
The trial court while acquitting seven others of both the charges under
Section 302/34 and 304B/34 of the Indian Penal Code and also the
appellant Shibu Mahto of the charge under Section 302/34 of the Indian
Penal Code did find the appellant Shibu Mahto guilty for the charge under
Section 304 of the Indian Penal Code convicted the appellant for the said
offence vide its judgment dated 22.2.2013 and sentenced him to undergo
imprisonment for ten years vide its order dated 25.2.2013.
The case of the prosecution is that the deceased Urmila Devi was
married to the appellant Shibu Mahto in the year 2009. After the
marriage, husband, father-in-law, mother-in-law and other family
members started subjecting her to cruelty on account of non-fulfillment of
demand of dowry. In order to prevent the accused persons from
subjecting the deceased to cruelty, 2.5 decimal of the land was
transferred in the name of the appellant. Subsequently, a sum of
Rs.50,000/- was also given to the members of the in-laws' family of the
deceased for constructing a house. In spite of that, the appellant and
other family members again started demanding money for purchasing
tractor. When the appellant Ashru Sao (P.W.1), father of the deceased
expressed his inability to meet the demand, they started subjecting the
deceased to cruelty more. On getting this information, the informant
came to her daughter's place on 7.9.2011 and made request to all the
accused persons not to subject the deceased to cruelty and at the same
time, he told them that he is unable to meet the demand.
Further case of the prosecution is that on 9.9.2011 at about 9.30
p.m. this appellant and other family members altogether twelve in
number including those seven persons, who have been acquitted, put the
deceased on fire in order to kill her as a result of which, she received burn
injury extensively. At about 12 in the midnight, Ranjeet Mahto and
Khedan Mahto (both not examined) relatives of the informant removed
her to Bokaro General Hospital. On getting information on telephone, the
informant in the night at about 1.30 a.m. came to the Hospital where the
deceased told him that the accused persons after pouring K.Oil put her on
fire. The deceased died on 10.9.2011. at about 5 a.m.
It is also the case of the prosecution that when the deceased was
removed to Hospital and was being treated there in Casualty Ward, ASI,
Baban Singh (P.W.15) came and recorded the statement of Urmila Devi
which was reduced in writing (Ext.3) wherein it had been stated that
while she was in her house, the appellant Shibu Mahto poured K. Oil on
her and it was her aunt Nirmala Devi (since acquitted) who put her on
fire.
After the death of the deceased, when OD slip was received, Ram
Pyare Ram (P.W.17), who had been posted at Sector IV Police Station
came to Hospital and recorded the Fardbeyan (Ext.1) of Ashru Sao
(P.W.1) wherein he stated about the incident as has been stated above
and took up the investigation during which he held inquest on the dead
body and prepared an inquest report (Ext.6). He having prepared dead
body challan, sent the dead body for post mortem examination which was
conducted by Dr.Vikash Kumar (P.W.14), who upon holding autopsy of the
dead body did find following injuries.
" Burn about 90% over scalp hair, all over face, front and
back of the neck, front and back of the chest both sides,
both sides all over abdomen, both shoulder arm and
forearm and both thigh and legs. No deformity was found
in brain. Hyoid bone was intact. Trachea and larynx
congested. Right chamber of the heart was found full with
blood and left chamber was found empty. Lung, Spleen,
Liver and Kidney were found congested."
Doctor issued post mortem examination report (Ext.2) with an
opinion that death was caused due to septicemia, leading to shock due to
burn injuries.
Meanwhile, one S.I, Phuleshwar Rai (P.W.16) of Harla Police Station
took over the investigation, who having inspected the place of occurrence
and recording the statements of the witnesses, submitted charge sheet
against the appellant and seven others against whom cognizance of the
offence was taken. In due course, when the appellant and seven others
were put on trial, they were charged under Sections 302/34 and 304B/34
of the Indian Penal Code. The prosecution in order to prove the charges
did examine as many as 17 witnesses. Of them, P.W.1, Ashru Sao, the
informant, P.W.11, Sakuntala Devi, mother of the deceased and P.W.12,
Pinki Kumari, sister of the deceased did depose that after six months of
the marriage, the accused persons started demanding money. Instead of
giving money, 2.5 decimal of land was transferred in the name of the
appellant, Shibu Mahto. After sometimes, money was again paid when
the accused persons started putting demand for constructing house. In
spite of that, the accused persons again started demanding money for
purchasing a tractor upon which he (P.W.1) expressed his inability to
meet the demand. On 7.9.2011 when he (P.W.1) came to in-laws' place
of his daughter, he requested the accused persons to allow her to go with
him for celebrating Karma festival but the accused persons did not allow
the deceased to go. P.W.1 and P.W.11 have further testified that on
getting information that the daughter has been shifted Bokaro General
Hospital on being burnt by fire, they came to the Hospital in the night of
9.9.2011/10.9.2011 at about 1.30 a.m. and found the daughter severely burnt, who disclosed to them that her husband Shibu Mahto poured K Oil and Nimia Devi put her on fire whereas other accused persons at that time had caught hold of her. P.Ws. 2, 3, 4, 5, 6 and 7 when did not support the case of the prosecution, they were declared hostile. P.W.8, Kailash Mahto @ Kailash Turi, P.W.9, Bandhan Mahto, P.W.10, Nirmal Mahto, P.W.13, Jageshwar Turi have testified that when on hearing halla they came to the house of Shibu Mahto, they found his wife in burnt condition and hence, she was removed to Hospital where she died. However, they categorically deposed that they do not know how the deceased received burn injury. They further deposed that the deceased was intending to go to Chandigarh where the appellant was working but the appellant told her that he will be taking her there after he will be allotted a quarter. P.W.9, Bandhan Mahto has further testified that when the deceased was taken to Hospital, he had also accompanied her but during treatment she died and only thereafter the informant, Ashru Sao, P.W.1 on being informed came in the morning at about 5-6 a.m. Upon closure of the prosecution case when the appellant and others were questioned under Section 313 of the Code of Criminal Procedure over the incriminating evidences, they denied.
However, the appellant stated that the deceased wanted to go to her parents' house on the occasion of Karma festival and hence, they had been informed to take her there but since nobody came and he too did not take her to her parents' house on account of he being busy, the deceased committed suicide.
Thereupon the trial court having regard to the facts and circumstances rejected the dying declaration both oral as well as written dying declaration (Ext.3) on the ground that there has been inconsistency in between it as according to P.Ws.1 and 11, they were told by the deceased that all the accused persons had played role in putting her to fire whereas dying declaration of the deceased (Ext.3) reduced in writing shows that only two persons, Shibu Mahto, the appellant and Nimia Devi, aunt-in-law of the deceased had played role in putting her to fire and thereby both the statements are not reconcilable and on account of that, it was held by the trial court that it would not be safe to rely either on the oral or written dying declaration. On that premise, the learned trial court did hold that the prosecution has failed to establish the charge under Section 302/34 of the Indian Penal Code and hence, the appellant as well as other accused persons were acquitted of the said charge. However, the trial court did find that the prosecution has been able to establish that it was the appellant, who put forth demand of dowry and on account of its non-fulfillment, subjected her to cruelty and that the death of the deceased was unnatural and hence found the appellant guilty of the charge under Section 304B of the Indian Penal Code. At the same time, the court did find that no evidence to the effect as aforesaid is there so far other accused are concerned and thereby the trial court while convicting the appellant, acquitted the other accused persons.
Against the order of conviction and sentence, the appellant Shibu Mahto filed Cr.App.(D.B) No.243 of 2013 whereas against the order of acquittal, Cr. App.(D.B) No.208 of 2013 was preferred by the informant. However, much thereafter Cr.App.(D.B) 606 of 2015 was preferred by the appellant against that part of the judgment whereby the appellant Shibu Mahto had been acquitted of the charge under Section 302 of the Indian Penal Code.
When the case was taken up for hearing, it was pointed out by learned counsel appearing for the informant that the trial court has wrongly rejected the dying declaration of the deceased reduced in writing (Ext.3) upon which the signature of the appellant Shibu Mahto is there explanation of which as to under what circumstances the signature of Shibu Mahto was there over the written dying declaration (Ext.3) has never been given by the appellant in his statement made under Section 313 of the Code of Criminal Procedure. At that stage, it was stated by learned counsel appearing for the appellant that the trial court had never put any question relating to signature of this appellant appearing over the dying declaration reduced in writing (Ext.3). In that event, we thought it proper and appropriate to put that pertinent question relating to the fact stated above and thereby the appellant was directed to be produced from the custody. Upon his production when the question relating to the matter as aforesaid was put in, he made statement to the effect that he had brought his wife to Hospital in unconscious state at about 9.45 p.m. in the night of 9.9.2011/10.9.2011 and since then, till she died on 10.9.2011 at about 4.45 a.m. she had never regained her consciousness and thereby there was no occasion for her to give any statement. He further stated that after her death, the police took his signature over a piece of paper on the premise that dead body was to be sent for post mortem examination. After the statement was recorded, plea was taken that the appellant is intending to give evidence in this regard. Therefore, the matter was sent before the trial court for examining the witnesses if any to be adduced on behalf of the defence. Thereupon the defence examined D.Ws. 4 and 5, who testified that when the deceased did receive burn injury, she was removed to the Hospital by the appellant and his family members during which period, she was unconscious and never regained consciousness till she died. Apart from the aforesaid two witnesses, the defence had earlier examined three witnesses. Of them D.W.1 has stated that the deceased wanted to go to Chandigarh where the appellant used to work but the appellant told her that he will be taking her when he will be allotted with a quarter whereas D.Ws.2 and 3 did testify that when the deceased was found in burnt condition, she was taken to Hospital by the appellant and the family members. According to D.W.3, he had also been to the Hospital but he never found the deceased in conscious state till she died. After recording the evidences of D.Ws 4 and 5 when the record was made available to this Court by the trial court, hearing of the case was taken up.
Mr.B.M.Tripathy, learned Sr. counsel appearing for the appellant submits that the trial court has convicted the appellant for the offence punishable under Section 304B of the Indian Penal Code after recording that the prosecution has been able to prove the fact that there was demand in connection with the marriage and on account of non- fulfillment of demand of dowry, the deceased was subjected to cruelty and that the death was unnatural as the deceased died on account of receiving burn injury but the trial court is absolutely wrong in recording the fact that the deceased was subjected to cruelty. None of the witnesses either P.W.1, P.W.11 or P.W.12 have stated a single word relating to the deceased being subjected to torture/harassment on account of non-fulfillment of demand of dowry and thereby any conviction of the appellant under Section 304B of the Indian Penal Code is quite bad as the prosecution failed to prove one of the ingredients required to be there for establishing the charge under Section 304B of the Indian Penal Code and thereby the trial court committed illegality in recording the order of conviction and sentence for the offence punishable under Section 304B of the Indian Penal Code.
Further submission which was advanced on behalf of the defence is that some of the witnesses such as, P.W.1, P.W.11 and P.W.15 have testified that the deceased was quite conscious when she was removed to Hospital but on the other hand, one of the prosecution witness namely, Bandhan Mahto, P.W.9 and also defence witness, D.W.2 have testified that the deceased had never regained consciousness during her treatment and therefore, in view of this glaring inconsistency, certificate of the Doctor over Ext.3, the dying declaration of the deceased, should have been there but neither any certificate is there over Ext.3 nor police has taken statement of the treating Doctor and that since dying declaration was never recorded in the form of question and answer, it becomes a suspicious piece of document which would not be safe for the court to put reliance on it.
Further submission which was made on behalf of the appellant is that it is true that there happens to be a signature of this appellant over Ext.3 (written dying declaration) but that has been taken by the police officer when the deceased died on the pretext that dead body is to be sent for post mortem examination. To this effect evidences have been led by the defence which in the facts and circumstances is worth reliable, keeping in view the testimonies of the witnesses such as P.W.9 and D.W.2 that the deceased had never regained consciousness in the Hospital during her treatment.
As against this, Mrs.Vandana Singh, learned counsel appearing for the informant as well as learned counsel appearing for the State submits that the trial court committed illegality in rejecting both the dying declaration, oral as well as written on the premise that there has been inconsistencies in between written dying declaration and the oral dying declaration for the reason that in the oral dying declaration, name of all the accused persons are there whereas in the written dying declaration name of only two persons, the appellant and Nimia Devi, aunt-in-law are there, who were responsible for causing death of the deceased but that cannot be a ground for rejecting both the dying declaration, rather the duty of the court is to consider each of them in its correct perspective and satisfying itself which one of them reflects the true state of affairs.
In this connection, learned counsel has referred to a decision rendered in a case of Nallam Veera Stayanandam and others vs. Public Prosecutor, High Court of A.P. [(2004) 10 SCC 769] and also in a case of Puran Chand vs. State of Haryana [(2010) 6 SCC 566].
Thus, it was stated that the trial court can certainly be said to have committed illegality in rejecting both the dying declaration.
Further it was submitted that absence of any certification of doctor over the dying declaration hardly proves to be fatal if a person recording it was satisfied that the deceased was in a fit state of mind.
In this regard learned counsel has referred to a decision rendered in a case of Sher Singh and another vs. State of Punjab [(2008) 4 SCC 265] .
Further submission which was made on behalf of the informant is that on one hand, the defence which was taken through defence witnesses is that the deceased was intending to go to Chandigarh but the appellant did tell the deceased that he will be taking later on whenever he would be allotted a quarter and by adducing this evidence indication was given that the deceased had committed suicide but the statement made by the appellant in 313 Cr.P.C is something different where he took the plea that the deceased intended to go to her parents' house on the occasion of Karma festival but nobody came from the parents' house of the deceased to take her to there and he was also not having time to take her there, she committed suicide and in such event, defence taken by the appellant warrants to be rejected on its threshold.
Having heard learned counsel appearing for the parties and on perusal of the record, we do find that the case of the prosecution as has been testified by the informant, P.W.1, father of the deceased, P.W.2, mother of the deceased and P.W.3, sister of the deceased is that the deceased had been married to the appellant, Shibu Mahto. After the marriage, the appellant started demanding Rs.50,000/-. Instead of giving money, 2.5 decimal of land was purchased in the name of the appellant. Subsequently, also the money was also given to the appellant. In spite of that the appellant 15 days before the occurrence started demanding money of Rs.1.5 lacs to which P.W.1 told to the appellant that he is unable to meet the demand, when P.W.1 had visited the house of her daughter on 7.9.2011. On 9.9.2011 the deceased received burn injury and was removed to Hospital where the deceased gave her statement to P.W.15, A.S.I, Baban Singh which was reduced in writing (Ext.3) wherein it was stated that it was the appellant who poured K. Oil and Nimia Devi, aunt-in-law set her on fire. However, according to P.W.1 and P.W.11, the deceased told them when they came to Hospital, that while the appellant poured K.Oil on her and Nimia Devi, aunt-in-law set her on fire the other accused persons had caught hold her. However, the trial court rejected both the dying declaration either oral or written as there were inconsistencies in between those two dying declaration and thereby the trial court acquitted the appellant as well as other accused persons of the charge under Section 302/34 of the Indian Penal Code. However, the trial court did find that the charge under Section 304B gets proved against the appellant and thereby convicted him for the offence punishable under Section 304B of the Indian Penal Code. However, other accused persons were acquitted of that charge also as cogent evidences were not there of putting forth demand or subjection the deceased to torture by them.
So far the conviction of the appellant is concerned, it was found by the trial court that the prosecution has been able to establish all the ingredients which required to be there for proving the charge under Section 304B of the Indian Penal Code but on scrutiny of the evidences, we do find that though the prosecution has been able to prove the factum of demand of dowry but none of the witnesses, P.W.1, P.W.11, P.W.12 has testified about the deceased being subjected to torture/harassment on account of non-fulfillment of demand of dowry and in that event, one of the essential ingredients of the offence under Section 304B of the Indian Penal Code is lacking and therefore, the prosecution can easily be said that the prosecution has failed to prove the charge under Section 304B of the Indian Penal Code either against the appellant or other accused persons against whom Acquittal Appeal No.208 of 2013 has been preferred and thereby the appellant is acquitted of the charge under Section 304B of the Indian Penal Code. Simultaneously, we do find that other accused persons for the same reason as assigned above have right been acquitted and thereby Cr.App.(D.B) 208 of 2013 deserves to be dismissed.
Now coming to the charge relating to Section 302/34 of the Indian Penal Code we have already stated that the charge under Section 302/34 is based mainly on the dying declaration. However, the trial court on finding inconsistency in between oral and written dying declaration, rejected both of them which approach does not seems to be correct as in case of multiple dying declaration, each dying declaration have to be considered independently on its own merit.
In this regard, reference of a case of Nallam Veera Stayanandam and others vs. Public Prosecutor, High Court of A.P. (supra) be made wherein Their Lordships have been pleased to observe as under.
" If the trial court was making the second dying declaration as the basis to reject, the first dying declaration as incorrect then also, in our opinion, the trial court has erred because in the case of multiple dying declaration each dying declaration will have to be considered independently on its own merit as it is evidentiary value and one cannot be rejected because of the contents of the other. In cases where there is more than one dying declaration, it is the duty of the court to consider each of them in its correct perspective and satisfy itself which one of them reflects the true state of affairs."
In view of this proposition, it has to be seen as to which of the facts as narrated under oral dying declaration or written dying declaration happens to be true state of affairs ?
It be stated that P.W.1 and also P.W.11 have testified that on getting information that the deceased after receiving burn injury has been shifted to Bokaro General Hospital, both of them came there at about 1.30 a.m. on 9.9.2011 and found her in badly burnt condition. On being asked, she disclosed that the appellant had poured K. Oil and Nimia Devi, aunt-in-law, set her on fire whereas other accused persons at that time had caught hold of her. Presence of the aforesaid two witnesses at the Hospital while the deceased was surviving appears to be quite doubtful in view of the statement of P.W.16, Investigating Officer, wherein he has stated that Sakuntala Devi had made statement before him that when she reached Hospital, by the time the deceased had died. If Sakuntala Devi had not reached to the Hospital before the deceased died, P.W.1, husband of P.W.11 could not have been at the Hospital as according to P.W.11, both of them had gone together. Furtherore had P.Ws.1 and 11 reached at the Hospital before the deceased died, P.W.15, who recorded the dying declaration of the deceased most likely would have taken their signatures as witnesses over the written dying declaration (Ext.3) but signatures of those two witnesses are never there.
Under the circumstances we do find that oral dying declaration as has been claimed to have been made by the deceased to P.Ws.1 and 11 never inspire confidence to be believed.
Now coming to the dying declaration (Ext.3) recorded by P.W.15, ASI, Baban Singh and was reduced in writing it be stated that when P.W.15 came to the Hospital, he found Urmila Devi in conscious state and was able to speak out and thereby he recorded it. Since there has been no certification of the doctor, submission was advanced on behalf of the defence that it be taken to be a suspicious piece of document which submission is not acceptable in view of the fact that according to P.W.15, he did record the dying declaration of the deceased when he found the deceased in conscious state of mind. In such event, one can very much put reliance on such declaration even if dying declaration lack certification by the doctor.
In this regard, we may refer to a decision rendered in a case of Laxman vs. State of Maharashtra [(2002) 6 SCC 710] wherein it has been observed as follows:
"In Laxman vs. State of Maharashtra a Constitution Bench of this Court had an occasion to consider similar aspects regarding veracity of dying declaration where the doctor's certificate regarding the fitness of a person had not been taken. This Court held that if the persons recording the statement is satisfied that the person was fit then the veracity of the declaration will not be questioned. The Court said that the view taken in Paparambaka case of getting the doctor's certificate on the state of mind of the patient to make the statement would be a hypertechnical view, particularly when the Magistrate stated that the patient was in a fit state of mind and whereafter he recorded the dying declaration. The Court further held that where the Magistrate had ascertained from the doctor whether the victim was in a fit condition to make the statement and obtained an endorsement to that effect, merely because the endorsement was not made on the dying declaration but on the application, it would not render the dying declaration suspicious in any manner."
The same principle has been reiterated in a case of Sher Singh and another vs. State of Punjab (supra) wherein it has observed as under:
"Acceptability of a dying declaration is greater because the declaration is made in extremity. When the party is at the verge of death, one rarely finds any motive to tell falsehood and it is for this reason that the requirements of oath and cross-examination are dispensed with in case of a dying declaration. Since the accused has no power of cross- examination, the court would insist that the dying declaration should be of such a nature as to inspire full confidence of the court in its truthfulness and correctness. The court should ensure that the statement was not as a result of tutoring or prompting or a product of imagination. It is for the court to ascertain from the evidence placed on record that the deceased was in a fit state of mind and had ample opportunity to observe and identify the culprit. Normally, the court places reliance on the medical evidence for reaching the conclusion whether the person making a dying declaration was in a fit state of mind, but where the person recording the statement states that the deceased was in a fit and conscious state, 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 mind of the declarant, the dying declaration is not acceptable. What is essential is that the person recording the 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 without there being the doctor's opinion to that effect, it can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certificate by the doctor is essential a rule of caution and, therefore, the voluntary and truthful nature of a statement can be established otherwise."
That apart, there does not appear to be any reason to doubt over the veracity of the declaration made by the deceased as recorded under Ext.3 particularly when signature of the appellant is there over Ext.3. Explanation relating to signature of the appellant over Ext.3 being there was tried to be given through D.Ws.4 and 5 wherein they have stated that after the deceased died, the police took the signature of the appellant on the pretext that dead body is to be sent for post mortem examination but such explanation seems to be after thought as no suggestion to that effect was given to P.W.15 who had recorded the dying declaration. Under the circumstances, explanation which was given through D.Ws.4 and 5 is never acceptable.
Further, we do find that when the dying declaration was recorded, the appellant was present and thereby the dying declaration cannot be a result of tutoring or prompting and thereby truthfulness and correctness of the dying declaration is never under any doubt and thereby the conviction of the appellant can be based on this document alone.
Accordingly, we do find that the appellant Shibu Mahto guilty for the offence punishable under Section 302 of the Indian Penal Code and is sentenced to undergo imprisonment for life.
Thus, both the appeals being Cr.App (D.B) No.243 of 2013 and Cr. App. (D.B) No.616 of 2015 stand allowed whereas Cr.App.(D.B) No.208 of 2013 stands dismissed.
R.N.Verma, J. I agree.
(R. R. Prasad, J.)
(R.N. Verma, J. )
Jharkhand High Court, Ranchi,
The 3rd February, 2016,
NAFR/N.Dev.