Delhi District Court
- vs - on 28 March, 2008
IN THE COURT OF SHRI DINESH KUMAR SHARMA,
ADDITONAL SESSIONS JUDGE DELHI.
SESSION CASE NO.11/05
FIR NO. 169/02
POLICE STATION:TIMARPUR
UNDER SECTION.498-A/302/34 IPC
DATE OF INSTITUTION: 02.09.2002
DATE ON WHICH THE JUDGMENT
HAS BEEN RESERVED:- 20.3.2008
DATE ON WHICH THE JUDGMENT
HAS BEEN DELIVERED:25.3.2008
STATE
-V E R S U S-
1. ASHOK KUMAR S/O LATE SH. JAI KISHAN
R/O H.NO.4158, GALI NO.108, B- BLOCK, SANT NAGAR, DELHI.
2. SMT. KAUSHALYA DEVI W/O LATE SH. JAI KISHAN
R/O H.NO.4158, GALI NO.108, B- BLOCK, SANT NAGAR, DELHI.
3. SHYAM LAL S/O JAI KISHAN
R/O H.NO.4158, GALI NO.108, B- BLOCK, SANT NAGAR, DELHI.
4. SMT. GAYATRI DEVI W/O SHYAM LAL
R/O H.NO.4158, GALI NO.108, B- BLOCK, SANT NAGAR, DELHI.
5. ANITA W/O AMRIK SINGH R/O VILLAGE WAZIR PUR,DELHI
6. SMT. USHA W/O SURENDER SINGH
R/O B385, NEHRU VIHAR, DELHI
JUDGMENT
This is one another case in which a young married women of around 24 years lost her life only after around one and half years of her marriage. There are allegations of harassment at the hands of her husband and in laws. Allegedly the deceased was burnt alive. Before meeting her end, the deceased made dying declarations making allegations against her husband and her in- laws.
Facts in brief are that victim Bharati was married to accused Ashok Kumar on 18.11.2000. Immediately after the marriage the relations went into trouble. Allegedly, the victim was continuously harassed for bringing insufficient dowry. She was asked time and again to bring more and more dowry in the form of articles and cash. Allegedly accused persons also made wild allegations on her character. A female child was also born out of the wed lock. This also failed to bring the stability in the relations between husband and wife. Ultimately on 28.4.2002, allegedly Kaushalya Devi mother-in-law of the deceased poured kerosene oil over the deceased and accused Ashok Kumar i.e. husband of the deceased set her on fire. Accused Shyam lal (Jeth), accused Gyatri Devi (Jethani) and accused Usha and Anita (nanad) were also alleged to have instigated the husband and mother in-law for demand of dowry. The deceased in the statement made to her parents also alleged that accused Shyam lal (Jeth), accused Gyatri Devi (Jethani) and accused Usha and Anita (nanad) also participated in the commission of murder. The police reached on the spot and found injured in burnt condition on the first floor of the house. She was taken to the hospital. In the hospital, as per MLC the deceased made her first statement to the doctor to the effect that she got burnt due to explosion of LPG Gas Stove. However, her statement could not be recorded by SDM on that day being not fit for statement. The statement of victim Bharti was recorded by SDM on the next day in which she specifically stated that kerosene oil was poured on her by her mother in law Kaushalya Devi and her husband Ashok Kumar burnt her with match stick. The deceased also allegedly informed her parents the circumstances leading to her death. In the statement made to her parents, victim allegedly pointed out the role of co-accused Shyam lal, Gayatri Devi, Usha and Anita. Initially a case under Section 307/498-A/34 IPC was registered on 29-04-2002. on 5.5.2002, Bharti Devi succumbed to the burn injuries and case was converted into 498A/302/34 IPC. SDM recorded the statement of Krishan Lal i.e. father of the deceased. Post mortem was conducted. The burnt clothes of the deceased, match stick, scalp hair of the deceased and residue of K-OIL seized from the spot were sent to FSL. Accused persons were arrested and after investigation chargesheet was filed U/Sec. 498A/302/34 IPC.
Accused persons were charged for the offence 498A/34 and 302/34 IPC. Accused persons pleaded not guilty and faced trial for the said offence.
Prosecution examined 23 witnesses in support of its case. The star witnesses of the prosecution are Krishan lal (PW-6) father of the deceased, Smt. Shanti Devi (PW-13),mother of the deceased and Sh. Sunil Kumar (PW-
15), brother of the deceased. Another most important witness is Sh. V. Valte, ADM the then SDM has been examined as PW-14. He had recorded the dying declaration Ex PW-1/A of the deceased on 29-04-2002. Besides this, the prosecution examined Dr. Vidyanand (PW-18) who declared the deceased fit for statement on 29.4.2002. Dr. Rajesh Prasad (PW-16) examined Ashok Kumar, husband of the deceased on 30.4.2002, Dr. Mukta Rani (PW-17) conducted the post mortem of the deceased and proved Post Mortem report as Ex PW-17/A. Sh. Sanat Kumar Mukodhaya (PW-20) proved the FSL report as Ex.PW-20/A. The information in this case was firstly given to PCR and same was recorded by L/Ct. Asha (PW-11). She proved the PCR form as Ex.PW-11/A. The witness deposed that original of the record has already been destroyed. The information given by L/Ct. Asha was recorded by H.Ct. Raj singh (PW-
2) at PP Jharoda vide DD No.14 and the same was handed over to SI Manoj Tyagi for further action. The true copy of DD no.14 is Ex. Pw-2/A. SI Manoj Kumar , conducted the entire investigation. He has been examined as PW-19. Ct. Bala Sahab (PW-13) and Ct. Vijender Singh (PW-7) also remained with Investigation-Officer.
Sh. Hari Singh, Photographer proved the positive photographs of the spot as Ex. PW-8/A to F and negatives of the same as Ex. PW-8/A1 to F1. MHC (M) Ct. Dharam Vir Singh has been examined as PW-9. He testified regarding deposit of case property and sending the same to FSL, Hyderabad. The scaled site plan got prepared by IO through Tirath singh (PW-10) has been proved as Ex. PW-10/A. Inspector Veer Singh (PW-22) filed the supplementary chargesheet in respect of accused Anita and Asha. Remaining witnesses examined by the prosecution are formal in nature.
Accused persons in their statement under Section 313 Cr.P.C. denied all the allegations and submitted that they have been implicated falsely. The accused persons took a defence that deceased set herself on fire. The defence also examined two witnesses namely Sh. Ramji lal and Smt. Santosh in support of their cases. Both of these witnesses deposed that deceased set herself on fire.
Ld. APP for the State has argued at length that prosecution has successfully proved its case by cogent and creditworthy evidence. It has been submitted that dying declarations made by the deceased to the SDM and her parents are crystal clear and there is no reason to disbelieve the same. Prosecution has submitted that there is enough material on record to prove that accused persons harassed the deceased for demand of dowry and ultimately the accused persons in furtherance of their common intention committed the murder of the deceased.
Per contra, Sh. Ashok Garg, Ld. Counsel for the accused persons has argued that the prosecution has miserably failed to prove its case against the accused persons. It has been submitted that the dying declaration recorded by SDM is unreliable. It has been submitted that the deceased gave true version immediately on reaching the hospital and all other statements made by the deceased are in-fact tutored versions and, therefore not reliable. Ld. Defence counsel has pointed out that as per dying declaration recorded by SDM the place of incident was on ground floor near the kitchen, whereas the injured was found in a burnt condition on the first floor. Ld. Counsel for accused has also submitted that there are material contradictions in the alleged dying declaration made by deceased to her parents and the dying declaration made to SDM. It has been submitted that infact the first dying declaration made by the deceased immediately after she was taken to the hospital is correct and trust worthy. It may be recalled that the victim has stated on reaching the hospital that she got burn injuries due to explosion of LPG Gas stove. Ld. Defence counsel has also placed on record a table showing the contradictions in the testimony of prosecution witnesses. It has been submitted that prosecution has failed to prove its case against accused persons beyond reasonable doubt. In support of its case he has relied upon Shaikh Bakhsu and Ors Vs. State of Maharashtra, VI(2007) SLT 373.
I have heard the submissions of Ld. APP for the state and Ld. Counsel for the accused and perused the record carefully.
In the present case the incident took place within the four walls of H.No.4158, Gali No.108, Sant Nagar, Burari Delhi. Police reached on the spot only after the incident had taken place. Prosecution did not find any eye witness. Injured/victim was also not found fit for making any statement. In these circumstances, IO kept the DD pending awaiting the statement to be made by the victim and did not initiate any proceedings. The statement of the victim was recorded on the next day, after the victim was declared fit for statement by Doctor Vidya Nand (PW-18). The said dying declaration recorded by Sh. V. Valte, SDM,( PW-14) is reproduced as follows:
"Statement of Smt. Bharti Rani, w/o Ashok Sharma, r/o H. No. 4158,gali No.108, Sant Nagar, Burari, New Delhi.
(Age 24 yrs)
Q. What is your name?
A. My name is Bharti Rani.
Q. Are you married?
A. yes, I got married to Ashok Sharma about 1 ½ years ago. I got
one child, a girl about three months old.
Q. Are you happy after marriage?
A. No, soon after marriage I was harassed by my husband and
mother-in-law. I was often beaten and kept in the verandah outside the house. They kept demanding for more dowry. Pappu (Jeth) Gayatri(Jethani), Usha and Anita (both nanads) influenced my mother-in-law and husband to demand dowry.
Q. How did you get burnt? A. yesterday, at about 3.00 PM, my mother-in-law poured k.oil over
my body near the kitchen and my husband burnt me with matches. Someone informed the police , who took me to the hospital.
( )
RTI of smt. Bharti Rani Recorded by me
Sd/-
29.4.2002
1250 HRS
(V.VALTE)
SDM (SB)
At Bed No.8, Burns Ward, LNJP"
On the basis of this statement made by the victim, SDM directed to register a case against the accused persons. In pursuance of the direction SHO Timarpur registered a case under Section 498A/307/34 IPC. The victim succumbed to injuries on 5.5.2002 and thus this statement became dying declaration of the deceased. The deceased had also made statement to her parents indicating the circumstances leading to her death. Sh. Krishan Lal PW-6 and Shmt Shanti Devi PW-13 deposed regarding such dying declarations made by their daughter to them. Another dying declaration is in the form of endorsement made by Doctor on MLC Ex. Pw18/A as alleged to have been stated by the deceased to the Doctor.
The case of the prosecution is thus based upon the dying declaration made by the deceased to the SDM and her parents. The fate of the case depends upon the credibility and reliability of such statements. Therefore, before entering into other arena of the case, it would be desirable if we first have a look on the parameters for accepting the dying declaration. The appreciation of evidence is an important function in the adjudication process.
If we analyse the provisions of Evidence Act, the general rule is that all evidence must be direct. The general rule is that if a witness deposes regarding a fact which could be seen, he must have seen it. Similarly if a witness deposes regarding a fact which could be heard or perceived, the witness deposing must have heard or perceived it himself. Thus, a person who has not seen it himself cannot depose about a fact which could be seen.
Similarly if some fact could be heard or perceived only that person who has heard or perceived it can depose about it. This is the reason that hearsay evidence is not admissible. It is correct that in a given case, the prosecution may prove its case on the basis of circumstantial evidence, in the absence of direct evidence. But in the cases of circumstantial evidence, the rule is well settled that all the circumstances must be so crystal clear that these indicate only towards the guilt of the accused and it excludes the innocence of the accused.
The exception to the direct evidence is contained in Section 32 of the Indian Evidence Act. In a way, it is an exception to general rule against hearsay evidence. Clause-I of Section 32 of Indian Evidence Act makes the statement of the deceased admissible which is generally described as dying declaration. It has been held in the catena of cases that the dying declaration essentially means statements made by the person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The admissibility of the dying declaration is based upon the principle that the sense of impending death produces in man's mind the same feeling as that the conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it in extremity, when the maker was at the point of death and when every hope of this world is gone, when every motive to the falsehood is silenced and mind induced by the most powerful consideration to speak the truth. However, still the rule of caution is that notwithstanding the same, care and caution must be exercised in considering the weight to be given to these species of evidence on account of the existence of many circumstances which may affect their truth. The Court has always to be on guard to see that the statement of the deceased was not the result of either tutoring or prompting or a product of imagination. The Court has also to see and ensure that 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 itself that the deceased was in fit mental condition to make the dying declaration, has to look for the medical opinion. Once the court is satisfied that the declaration was true and voluntary, it undoubtedly, can base its conviction on dying declaration without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated.
The rule requiring corroboration is merely the rule of prudence.
The well settled principles have been recognized and reiterated by the apex Court in the cases Smt. Paniben v. State of Gujarat, (1992) 2 SCC 474;
Uka Ram v. State of Rajasthan, (2001) 5 SCC 254; Laxman v. State of Maharashtra, (2002) 6 SCC 710; P.V. Radhakrishna v. State of Karnataka, (2003) 6 SCC 443; State of Maharashtra v. Sanjay D. Rajhans, AIR 2005 SC 97; and Muthu Kutty and another v. State by Inspector of Police, Tamil Nadu (2005) 9 SCC 113. 1992 AIR SCW 2050.
In Jai Karan v. State of Delhi (NCT) [(1999) 8 SCC 161], it was interalia held as under:
"A dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is on this premises which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on a strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable"
The courts have time and again cautioned that before accepting the dying declaration the court must satisfy itself as to its credibility. The dying declaration must be voluntary. It should not be tutored. The dying declaration must inspire full confidence of the court in its truthfulness or correctness. It has to be kept in mind that the maker of the dying declaration cannot be tested by cross-examination and, therefore, greater caution must be exercised in considering the weight to be given to the dying declarations. It has been held in the catena of judgments that the dying declarations are to be tested on the touch-stone of consistency and probability.
In P.V. Radhakrishan Vs. State of Karnataka,AIR 2003, SC 2859, the Apex Court discussed in detail the principal on which the dying declaration is made admissible in evidence. It was interalia held as under:
"Clause (1) of S. 32 makes relevant what is generally described as dying declaration, though such an expression has not been used in any statute. It essentially means statement made by a person as to the cause of his death or as to the circumstances of the transaction resulting in his death. The grounds of admission are; firstly, necessity for the victim being generally the only principal eye-witness to the crime, the exclusion of the statement might deflect the ends of justice; and secondly, the sense of impending death, which creates a sanction equal to the obligation of an oath. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn and so lawful is considered by the law as creating as obligation equal to that which is imposed by a positive oath administered in a Court of justice. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri - a man will not meet his maker with a lie in his mouth."
It was further held that the situation in which a person is on death bed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye-witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.
Similarly, in Sohan lal Vs. State of Punjab, 2003 Crl.LJ 4569, the Apex Court interalia held as under:
"The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the death-bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross- examination are dispensed with. Since the accused has no power of cross-examination, the Courts 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, however, has always to 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 looks 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. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice, provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidentary value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case.
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 holds 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."
In Panchdeo Singh Vs. State of Bihar,2002 Crl.L.973, the Apex Court observed that the dying declaration which inspires confidence of the court is sufficient piece of evidence to sustain conviction. The Apex Court ineralia stated thus:
"It must allure to the satisfaction of the Court that reliance ought to be placed thereon rather than a distrust. The confidence of the Court is the summum bonum and in the event of there being any affirmation thereto in the judicial mind, question of any disbelieve or distrust would not arise. In the event, however, of there being some infirmity, howsoever, negligible it be, the Court unless otherwise satisfied about the credibility thereof, ought to look for some corroboration, if however it is otherwise, question of requirement of a corroboration would not arise; dying declaration alluring confidence of the Court would be a sufficient piece of evidence to sustain conviction. There is no format as such of dying declaration neither the declaration need be of any longish nature and neatly structured. As a matter of fact, perfect working and neatly structured dying declaration may bring about an adverse impression and create a suspicion in the mind of the Court since dying declarations need not be drawn with mathematical precision - the declarant should be able to recollect the situation resulting in the available state of affairs"
.
Let us examine whether on the touch stone of above parameters the dying declarations made by the deceased in the present case can be relied or not.
Let us take all the dying declaration one by one. The first dying declaration is in the form of endorsement made by the Doctor on Ex. PW- 18/A. As per this the victim stated that she suffered burn due to explosion of LPG Stove. The defence wants this court to believe this dying declaration. I am afraid that this dying declaration cannot be believed for several reasons. It is a matter of record that the prosecution did not examine the Doctor who made this endorsement on MLC EXPW18/A. Even no such witness has been cited. Thus the prosecution has not relied upon this document. The defence has also not examined any witness to prove this dying declaration made by the deceased.. Therefore, it only remained to be a paper on case file which is not proved in accordance with the provisions of Evidence Act. Let us assume that the court in the quest of justice should have considered this document even in absence of any such proof. Even in that case, this dying declaration is not reliable, for the reason that there is no mention of LPG Gas Stove anywhere in the entire case. As per FSL report, Ex.PW-20/A the kerosene residue oil was detected in the burnt clothes of the deceased and bunch of sclap hair of the deceased. Even the accused persons in their statement under Section 313 Cr.P.C. did not state that deceased caught fire due to explosion of LPG Gas Stove. Interestingly the defence witnesses examined by the defence also did not state that deceased caught fire due to explosion of gas stove. In case had there been explosion of LPG stove, the situation on the scene of crime would have been totally different. There is another aspect also. The husband of the deceased accompanied the deceased to the hospital, as indicated by the MLC, therefore, the "fear factor" also cannot be ruled out. In such cases normally the married woman at first instance would also try to shield her husband.
In Shobran Singh VS. The state, 2006IXADDelhi14 our own Hon'ble High Court while dealing with a matter in which the deceased told the admitting Doctor that she had sustained burnt injuries while she was boiling milk on a stove and lateron the victim made the declaration that she stated so because her mother in law Smt. Sarla Devi told her to do so, but actual fact are that husband had set her on fire after pouring kerosene over her. In this case it was interlia held as under:
"Consequently when a person (such as the deceased in the present case) is admitted to a hospital by the offender or his close relative, there is a "fear factor"
working on the mind of the victim, which is to say that the perpetrator of the crime continues to exercise control, through fear, over the thoughts and mind of the victim due to the authority at he or she wields over the victim because of their power equation. This is particularly so in situations of dependent relationships such as where the "weak" is susceptible to undue influence from the "strong' in situations in domestic violence and elder abuse, which show that undue influence may be extended exerted on a victim, where power relations exist between the perpetrator of a crime and its victim. (See "Offenders and victims: accountability and fairness in the criminal justice process" a working paper prepared by the Secretariat of United nations for the Tenth United Nations Congress of the Prevention of Crime and the treatment of Offenders). At such a point in time, it would not be surprising if due to the "fear factor" the victim is unable to speak the truth and this is what appears to have happened in the case of the deceased".
Thus, in the present case also the "fear factor" cannot be ruled out and thus this dying declaration looses its significance and credibility.
Now coming to the alleged dying declarations made by the deceased to her parents. Sh. Krishan lal father of the deceased in the statement made to SDM on 5.5.2002 stated that her daughter told her on 28.4.2002 on reaching the hospital that accused Shyam lal and Gayatri Devi caught her hand and accused Kaushalya poured kerosene oil on her and thereafter accused Ashok burnt her with match stick. When krishan lal came to depose in the court he changed his version. In the statement made before the court Sh. Krishan lal stated that her daughter was lying unconscious on 28.4.2002 and she regained consciousness on 29.4.2002 and at that time she told that accused Ashok, Anita and Usha were harassing her for bringing more dowry from her parents. The deceased also allegedly told her father that accused Ashok had caught hold her in the presence of accused Usha and Anita. Kaushalya sprinkled kerosene oil on her and when she tried to run away, Ashok closed the door of the room. She further told that accused set her on fire and at that time accused Shyam lal and Gyatri Devi caught hold of her. Let us see what her mother says. Smt. Shanti Devi in her statement made before the court also told that on 28.4.2002 when they reached Irwin hospital, they were not allowed to meet Bharti as she was kept in ICU. On 29.4.2005 in the afternoon, Doctor asked them to meet deceased as she was conscious at that time. Smt. Shanti Devi stated that when she asked the victim as to what had happened the victim told that her mother-in -law and jethani had caught hold of her and her husband put her in flames with match sticks. Before evaluating their evidence let us recall what the deceased told in this regard to the SDM.
The SDM asked a specific question that how did she get burn. The deceased replied as under:-
"yesterday, at about 3.00 PM, my mother-in-law poured k.oil over my body near the kitchen and my husband burnt me with matches. Someone informed the police , who took me to the hospital"
As we have discussed above, the basic touch stone to accept a dying declaration is that it should not be tutored. The dying declaration made by the deceased to the SDM has been assailed by defence primarily on the following points.
1. that there is no endorsement of any doctor as to the fitness of the deceased on the dying declaration made by the deceased to the SDM;
2. that the statement was made by the deceased in Hindi and SDM translated it in English and therefore, it may not the correct version of the statement made by the deceased; and
3. it was tutored statement.
Before proceeding further let us examine what the superior courts say about it. In Ravi Chander & Ors. Vs. State of Punjab(1998)9 SCC 303 the Apex court interalia held as under:
"....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 Court observed that the Executive Magistrate is a disinterested witness and is a responsible officer as long as there was no material on record to suspect that he had any animus against the accused or was in any way interested in fabricating the dying declaration, no question arises to checking the genuineness of the dying declaration recorded by the Executive Magistrate, unless indicated otherwise.
Similarly in respect of an endorsement made by Doctor on the dying declaration, the Constitution Bench of the Hon'ble Supreme Court in the case Laxman Vs State of Maharashtra AIR 2002 SC 2973, the view taken in the case of Paparambaka Rosamma Vs. State of A.P. (1999) 7 SCC 695,AIR 1999 SC 3455 that in the absence of a medical certification as to the fitness of state of mind, it would be risky to accept a dying declaration on the subjective satisfaction of the Magistrate was overruled as having been too broadly stated and not being the correct enunciation of law. The Constitution Bench interalia said :
". . . . . . It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji v. State of Gujarat."
In Koli Chunilal Savji versus State of Gujarat AIR 1999 SC 3695 a Bench of three learned Judges rejected the contention that in the absence of a doctor while recording the dying declaration, the declaration loses its value and cannot be accepted. The Court interalia observed as under:
"It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. But in the absence of doctor while recording the dying declaration, the said declaration does not lose its value and can be accepted. With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital she told the doctor on duty that she is required to take the statement of deceased and she showed the doctor the Police yadi. The doctor then introduced her to deceased and when she asked the doctor about the condition of deceased the said doctor categorically stated that she was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on Police yadi, indicating that deceased was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of doctor on the police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, the dying declaration can be relied upon in the absence of the endorsement of the doctor thereon"
In the cross-examination of the SDM there is nothing to suggest that the SDM was having any bias against accused persons. In his evidence Ld. SDM has specifically stated about the condition of the maker of the statement. In this regard the Prosecution has also examined the doctor who declared the victim fit for making the statement. There is also nothing on record to suggest that the deceased was tutored in any manner. I have no hesitation in accepting the dying declaration made by the deceased to SDM. However, I am not inclined to accept the dying declarations alleged made by the deceased to her parents.
Firstly, there are inherent contradictions in it. The witnesses have made self-contradictory statements in this regard. If their daughter made such statement to them on 29.4.2002 itself what restrained them from informing this to the police prior to 6.5.2002. The dying declarations made to the parents have not inspired the confidence of this court. It seems that the parents of the deceased made this statement only in the anxiety of implicating other relatives of the husband of the deceased. Thus I propose to proceed further on the basis of dying declaration made by the deceased to the SDM Now we will examine the contradictions as suggested by the defence between this dying declaration and the case of the prosecution Ld. Defence counsel has argued that the dying declaration recorded by SDM is perse contradictory in regard to the place of incident. It has been submitted that as per the dying declaration Ex Pw-1/A the spot of incident is near the kitchen, whereas the injured was found on the first floor. Prosecution has placed on record the site plan prepared by the IO as well as the site plan prepared by PW-10 Tirath singh. Both the site plan indicate that the kitchen is on ground floor, whereas the injured was found on first floor in the burnt condition. The site plan Ex. PW-2/A has added to the confusion. Note No.1 on site plan Ex. PW-10/A has shown the place of occurrence on first floor. In support of its contention Ld. Counsel for the accused has cited Shaikkh Bakshu & Ors. Vs. State of Maharashtra VI (2007) SLT 373. In this case there were two dying declaration and there was contradiction in respect of the alleged place of occurrence. According to the deceased the occurrence took place in the bed room however, as par pachnama no burn marks were found in the bed room. Rather the burn marks were found in the kitchen. In this case the Apex Court rejected the dying declaration on the ground that it was not reliable.
I have gone through the judgment. With entire humility at my command I consider that the abovesaid case can be respectfully distinguished on the facts and circumstances of the present case. In this case there were two dying declarations recorded in the span of around one hour. The first dying declaration was allegedly recorded at around 6 PM, whereas the information was received at around 6.30 PM. There were other glaring contradictions also which surfaced in the prosecution case. In the present case, the deceased only stated in her dying declaration that Smt. Kaushalya Devi poured kerosene oil over her body near the kitchen. Thereafter, the deceased continued to say that her husband burnt her with matches. If this sentence is read as a whole, it does not indicate that the victim was burnt near the kitchen. The photographs proved on record undoubtedly indicates that the burn marks were also found on the first floor. In this regard we have also to understand the topography of the house. The perusal of site plan Ex. PW-10/A indicates that the staircase is just near the kitchen and it opens near the room at first floor. There is a possibility that after the kerosene oil was poured on victim she might have run to save her life on the first floor and then on the first floor she was burnt. Unfortunately, the victim is not before us and only she could have actually told that what had happened at that time. In absence of any direct evidence, the court has to look for the prevailing circumstances. In the present case if we go through the testimony of prosecution witnesses there is nothing to suggest that the deceased was tutored in any manner. The credibility of the dying declaration can also be ascertained from the fact that deceased did not name other relatives of her husband regarding whom she made the allegations of instigating her husband and mother-in-law for the demand of dowry. Had there been any possibility of tutoring, nothing would have stopped the deceased to take the name of other relatives of the husband. SDM in his statement has specifically stated that he made enquiries from her and was satisfied that the victim was fit for statement. SDM also stated in the cross examination that he also enquired from the doctor about the fitness of the victim for the statement. It also came in the cross examination of the SDM that he read over the statement to the victim. I consider that the dying declaration made by the deceased is crystal clear. It has inspired the confidence of the court. There is no material to suggest that the deceased was tutored in any manner. The defence witnesses produced by the accused have stated that the deceased set herself on fire. However, the testimony of defence witnesses is not creditworthy for the reason that that the accused persons in their statement under Section 313 Cr.P.C. even did not mention the name of these witnesses. Only in the cross examination of IO, a suggestion was put that Smt. Santosh was present at the time when IO reached on the spot. The defence taken by the accused persons seems to have been an after thought and is therefore, not reliable. The defence has also heavily relied upon the fact that accused Ashok Kumar suffered burn injuries on his hand. There is no doubt that even as per MLC proved on record as Ex. PW-16/A accused Ashok has suffered burn injuries on his hand. Merely because the accused Ashok suffered burn injures on his hand entire story of the prosecution cannot be thrown out. It cannot be ruled out that a person after setting on fire would certainly try to do something to show that he rather tried to save his wife. Any fact on record has to be seen in totality. This conduct of the accused has to be seen in view of the earlier conduct of accused. Rather the burn injuries on his hand proves the presence of the accused on the spot .The accused persons in the cross examination had taken a defence that deceased set herself on fire. However, the accused persons have not brought any circumstances which would have compelled the deceased to take such a extreme step. It is correct that the prosecution is bound to prove its case against the accused beyond reasonable doubt and benefit of doubt always goes to the accused. But the theory of benefit of doubt cannot be stretched too long. The defence in order to make the story of the prosecution unreliable has to bring a cogent and trust worthy material on record. Stray doubts here and there cannot displace the otherwise plausible story of the prosecution. The defence being put up by the accused is weak, contradictory, after thought, unreliable and untrustworthy. Even accused Ashok stated nothing regarding burn injuries suffered by him in his statement.
I consider that taking into account the testimony of prosecution witnesses and material on record, the complete reliance can be placed upon dying declaration recorded by the SDM. The dying declaration also finds corroboration from the FSL report. In these circumstances, I consider that on the basis of discussion made herein accused Ashok Kumar and Kaushalya are liable to be convicted for the offence under Section 302/34 IPC. However, there is no material on record to convict accused Shyam Lal, Gyatri Devi, Usha and Anita for the offence under Section 302/34 IPC.
Now coming to the charge under Section 498 A IPC. The following are the ingredients of Section 498 A IPC:-
1 The women must be married;
2 She must be subjected to cruelty or harassment; and 3 Such cruelty or harassment must have been shown either by husband of the women or by relative of her husband The deceased in her dying declaration stated that soon after marriage she was harassed by her husband and her mother-in-law and she was often beaten and kept in varandha outside the house. Victim also stated that they kept demanding for more dowry and Pappu (Jeth) Gyatri (Jethani) Usha and Anita (Nand) influenced her mother in law and husband to demand dowry.
Let us see what her parents have stated about this Sh. Krishan lal PW-16in his statement stated that soon after marriage accused Ashok started harassing her daughter for bringing less dowry and accused Usha and Anita used to instigate him for demand of dowry. He further stated that accused Ashok used to demand cash on the pretext of having a custom in their family of taking cash in the marriage. The father of the victim stated that his daughter was being threatened by her husband that he would desert her if the demand was not fulfilled. Pw-6 further stated that on 5.5.2001, accused Ashok brought his daughter at his house and on that occasion he demanded a cooler from them. Accused Ashok left the victim at her parental house. Lateron, his demand of cooler was fulfilled. It further came in the testimony of PW-6 that on 16.6.2001, again accused Ashok deserted his daughter at his house alleging that he would not keep the victim at his house any more. On 19.6.2001, accused again visited the parental house of the deceased and made wild allegations against the victim. The matter was settled with the police intervention. Accused Ashok again misbehaved with the victim and her parents on 12.8.2001, when PW-6 alongwith his son Pw-15 and his wife Pw-13 went to drop her daughter at her matrimonial home. This time also police had to be called. PW-6 also deposed about the alleged incident of an attempt to sell his daughter on 10.9.2001. Further in his testimony PW-6 deposed about the hurling of abuse on the part of Usha and Anita and the allegations of infidelity on the victim. The last incident was of 20th April,2002 when the victim was again sent back by accused Ashok to bring a Fridge and Rs. 2 lakh because accused Ashok had suffered heavy loss in his business. This is what the father of the victim deposed in his testimony. Similarly, PW Shanti Devi also deposed regarding demand of dowry by accused Ashok. PW-13 was declared hostile by the prosecution. In the cross examination by ld. APP, PW -13 admitted the suggestion that the accused persons were not happy with the dowry she was given in the marriage. Similarly PW-15, Sunil Kumar brother of the deceased also stated that after few days of marriage accused persons started harassing her sister for dowry and started making allegations against her regarding infidelity.
In the cross examination the parents of the deceased admitted that there was no demand of dowry at the time of marriage. Rather, father of deceased admitted in the cross examination that accused Shyam Lal and his wife used to live separately in a portion of the same house. It is an admitted case that accused Anita and Usha were married, even before the marriage of deceased and were settled in their matrimonial home. It also came on the record that marriage of the deceased was solemnized in an Ashram. Even no marriage card was got printed from the girl side. The deceased in her dying declaration had stated that demand of dowry was made by accused Ashok and his mother. There is no direct evidence of demand of dowry on part of accused Shyam Lal, Gyatri, Usha and Anita. I consider that as far as offence under Section 498A IPC is concerned, there is no material against accused Shyam Lal, Gyatri, Usha and Anita and they are entitled to be acquitted of this charge also. However, there is specific evidence of demand of dowry against accused Ashok and Kaushalye Devi. The deceased has specifically named her mother in law Kaushalya devi and husband Ashok Kumar.
In the circumstances, I consider that accused Ashok and Kaushalya Devi are guilty for the offence under Section 498A/34 IPC.
In view of the discussions made herein above, accused Ashok and Kaushalya Devi are convicted for the offence under Section 302/498A/34 IPC. Accused persons Shyam Lal, Smt. Gayatri Devi, Anita ,Usha are acquitted of the offence under Section 302/498A/34 IPC. Their bail bonds are cancelled, sureties are discharged.
ANNOUNCED IN OEPN COURT (DINESH KR. SHARMA)
TODAY ON: 25TH MARCH,2008 ADDL.SESSIONS JUDGE
DELHI
IN THE COURT OF SHRI DINESH KUMAR SHARMA, ADDL. SESSIONS JUDGE DELHI.
SESSION CASE NO.11/05 FIR NO. 169/02 POLICE STATION:TIMARPUR UNDER SECTION.498-A/302 IPC DATE OF INSTITUTION: 02.09.2002 DATE ON WHICH THE JUDGMENT HAS BEEN RESERVED:- 20.3.2008 DATE ON WHICH THE JUDGMENT HAS BEEN DELIVERED:25.3.2008 STATE
-V E R S U S-
1. ASHOK KUMAR S/O LATE SH. JAI KISHAN R/O H.NO.4158, GALI NO.108, B- BLOCK, SANT NAGAR, DELHI.
2. SMT. KAUSHALYA DEVI W/O LATE SH. JAI KISHAN R/O H.NO.4158, GALI NO.108, B- BLOCK, SANT NAGAR, DELHI.
Present: Sh. Mohd. Iqrar Ld. APP for State.
Accused persons produced from Custody.
Sh. Ashok Garg ld. Counsel for accused persons.
Accused persons have been convicted for the offence under Sections 302/498A/34 IPC. The fact that one of the accused is a lady of around 80 years of age has made the job of sentence really difficult. However,the court is bound with the law. The conviction has been passed on the basis of dying declaration made by deceased Bharti Devi.
Ld. APP for state has pressed for extreme punishment to the accused persons as they have set a young women on fire. It has been argued that the greed and lust of the accused persons took the life of a young women. It has been submitted that harsh punishment in such case would send a message to the society at large that such an act invites the extreme punishment.
On the other hand, Sh. Ashok Garg ld. Counsel for accused has pressed for lenient view on the ground that accused Ashok is having a small child of 6 year of age. The young child also does not keep well and is suffering from regular epliptic fits. It has been submitted that there is nobody else in the world to look after the child except the accused Ashok Kumar. In respect of accused Kaushalya Devi, it is submitted that she is a lady of 80 yeas with multiple health problems. It has been submitted that a lenient view be taken. Ld. Counsel has also submitted that there have been no complaint against the accused persons and their records are absolutely clear.
I have considered the submissions and perused the record carefully. The offence committed in the present case is very serious.A young lady lost her life to the greed and lust of the accused persons. Bharti Devi was burnt alive by the offenders. However, I consider that this is not a case which falls into the category of the rare of the rarest case. I consider that in the present facts and circumstances, imprisonment for life and fine of Rs. 2,000/- in default of SI for six months under Section 302 IPC and SI for two years and fine of Rs. 2,000/- in default of SI of one month under Section 498A IPC to each of the accused shall meet the ends of justice. Both the sentences shall run concurrently. Benefit under Section 428 Cr. P.C be given to the accused persons.
Since accused Kaushala Devi is an old lady of around 80 years of age, Superintendent of Jail is specifically directed to provide her all necessary medical aid during the period of her detention. Copy of judgment and sentence order be supplied to the accused persons.
ANNOUNCED IN OPEN COURT (DINESH KR. SHARMA) TODAY ON: 28.3.2008. ADDL. SESSIONS JUDGE:DELHI.