Allahabad High Court
Sushila @ Annapurna And Others vs State Of U.P. on 14 February, 2023
Bench: Ramesh Sinha, Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 17.11.2022 Delivered on 14.02.2023 Court No. - 1 Case :- CRIMINAL APPEAL No. - 1244 of 2012 Appellant :- Sushila @ Annapurna And Others Respondent :- State of U.P. Counsel for Appellant :- Smt. Nalini Jain,Anuj Dayal,Bhanu Pratap Mishra,Firoz Ahmad Khan,Ratnesh Kant,Shiv Shankar Mishra Counsel for Respondent :- Govt. Advocate Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Renu Agarwal,J.
(Per: Mrs. Renu Agarwal,J. for the Bench)
1. The Present Criminal Appeal under Section 374(2) Cr.P.C. has been filed by the convicts/appellants against the Judgment and Order dated 06.09.2012 passed by Sri Faridul Haq, the then Additional Sessions Judge, Court No.3, District Faizabad in Sessions Trial No.11 of 2011 (State Vs. Satish Pandey And Ors.) arising out of Case Crime No.858 of 2010, under Sections 498-A, 304-B, I.P.C. & Sections 3/4 Dowry Prohibition Act, Police Station Poorakalandar, District Faizabad whereby convicting and sentencing all the appellants to undergo two years simple imprisonment under Section 498-A I.P.C. and a fine of Rs.2,000/- on each appellants and in default of payment of fine two months more simple imprisonment. Life imprisonment under Section 302 r/w Section 34 I.P.C. and fine of Rs.5,000/- on each appellants and in default of payment of fine six months more simple imprisonment. All the sentences will run simultaneously.
2. Wrapping the facts of the case in brief, the marriage of the daughter of informant was solemnized with accused-appellant Satish Pandey S/o Shri Laxmi Chand Pandey on 29.04.2007. At the time of marriage, one motorcycle and Rs.70,000/- cash were demanded as additional dowry by the accused-appellants but the ceremonies of marriage of his daughter completed on the intervention of relatives. Later on same demand was made at the time of Gauna and the same was performed on 25.11.2009 on the intervention of relatives. When his daughter came for the first time after her marriage, she informed that she was being beaten by her in-laws for the demand of dowry. She went by her in-laws again and again to her matrimonial home and sent back. On 06.09.2010, he was informed that his daughter was admitted in District Hospital, Faizabad and when he reached there he saw that his daughter was wholly burnt out and no one was present there to attend her in the hospital from the side of her husband. On the enquiry, his daughter told that her husband Satish Pandey, sister-in-law (bhabhi) Neha Pandey, sister-in-law (nanad) Suman, brother-in-law (devar) Awadhesh, father-in-law Laxmi Chand Pandey and mother-in-law Sushila @ Annapurna by pouring kerosene oil has set her ablaze. The dying declaration of his daughter was recorded the day before i.e. on 07.09.2010 at about 02:30 p.m.
3. On the basis of written report F.I.R. as Ext. Ka-1 was registered, chik report as Ext. Ka-14 was prepared and the same was endorsed in G.D. No.18 on the same day. Inquest upon the corpse of the deceased was conducted on 06.09.2010 by Sub-divisional Magistrate, who prepared inquest report as Ext. Ka-3 and other relevant papers i.e. photo nash, challan nash, letter to C.M.O., letter to R.I. were also prepared and sent the corpse of the deceased for autopsy. Autopsy was conducted on the same day at about 9:45 p.m. by Dr. R.P. Rai.
4. The Investigating Officer visited the site, recorded the statement of complainant u/s 161 Cr.P.C., prepared site plan and recovered semi-burnt footwear (chappal), sack of jute, shawl, curtain, jhalar, container of kerosene oil and match box from the place of occurrence and prepared recovery memo thereof and after completing investigation, he submitted charge-sheet against the accused-appellants namely; Sushila @ Annapurna, Neha Pandey, Satish Pandey and Laxmi Chandra Pandey, under Sections 498-A, 304-B, I.P.C. & Sections 3/4 Dowry Prohibition Act, Police Station Poorakalandar, District Faizabad.
5. Accused-appellants were summoned in the Court and charges were framed against them, under Sections 498-A, 304-B I.P.C. & Sections 3/4 Dowry Prohibition Act, Police Station Poorakalandar, District Faizabad. Accused-appellants abjured from the charges and claimed to be tried.
6. Learned trial court, later on by order dated 23.02.2012 framed additional charges against them, under Section 302 r/w Section 34 I.P.C. as an alternate case. Accused-appellants abjured from the said charges also and claimed to be tried.
7. In order to prove the case, prosecution has adduced following witnesses:-
- P.W.-1 Ramapati Tiwari, who is informant of the case.
- P.W.-2 Smt. Indrawati Devi.
- P.W.-3 Rama Shankar Yadav, S.D.M.
- P.W.-4 Dr. Rakesh Prasad.
- P.W.-5 Dr. Dharmendra Rao.
- P.W.-6 Rakesh Kumar Pandey, Circle Officer.
- P.W.-7 Atar Singh, Head Constable and
- P.W.-8 Chandradeep Singh, S.I.
8. Besides oral evidence, prosecution produced following documentary evidence, which are as follows:-
- Ext. Ka-1 Written Report.
- Ext. Ka-2 Inquest Report.
- Ext. Ka-3 Application of informant for post-mortem.
- Ext. Ka-4 Invitation Card.
- Ext. Ka-5 Dying Declaration.
- Ext. Ka-6 Letter to C.M.O.
- Ext. Ka-7 Letter to R.I.
- Ext. Ka-8 Police Paper No.13.
- Ext. Ka-9 Photo Nash.
- Ext. Ka-10 Specimen of seal.
- Ext. Ka-11 Post-mortem Repot.
- Ext. Ka-12 Site Plan.
- Ext. Ka-13 Charge-sheet.
- Ext. Ka-14 Chik Report.
- Ext. Ka-15 Carbon copy of G.D.
- Ext. Ka-16 Carbon copy of Robkar G.D. No.18.
- Ext. Ka-17 Carbon copy of Robkar G.D. No.19.
- Ext. Ka-18 Carbon copy of Robkar G.D. No.40.
- Ext. Ka-19 F.S.L. Report.
- Ext. Ka-19 Recovery memo of semi-burnt articles.
- Ext. Ka-20 Recovery memo of container of kerosene oil and match box.
9. After recording the prosecution evidence, statements of accused-appellants were recorded under Section 313 Cr.P.C. whereby accused-appellants were denied all the charges levelled against them and stated that they have been falsely implicated in the present case due to animosity and they were provided the opportunity to adduce defence witness. The defence witnesses were produced, which are as follows:-
- D.W.-1 Harishankar Pandey.
- D.W.-2 Dr. Hariom Srivastava.
- D.W.-3 Dr. Rajesh Kumar Dubey.
10. The following documentary evidences were produced by the defence with list no.33A, which are as follows:-
- Ext. Kha-1 to Kha-4 Bed Head Ticket.
- Ext. Kha-5 Prescription, which were issued by District Hospital, Faizabad.
- Ext. Kha-6 Receipt.
- Ext. Kha-7 Photo copy of letter written to C.M.S., District Hospital, Faizabad.
- Ext. Kha-8 Photo copy of letter written to Circle Officer, Ayodhya.
11. After hearing the submissions of D.G.C. and learned counsel for the accused-appellants, learned trial court reached to the conclusion that P.W.-4 Dr. Rakesh Prasad, C.M.O., District Hospital, Faizabad proved post-mortem report and he opined that the deceased was burnt out almost 90% and the cause of her death was ante-mortem injuries due to burning. Learned trial court held that the witnesses of fact, P.W.-1 Ramapati Tiwari and P.W.-2 Indrawati have turned hostile during their cross-examination regarding the fact of demand of dowry but the dying declaration was recorded and proved by P.W.-3 Rama Shankar Yadav, S.D.M. and P.W.-4 Dr. Rakesh Prasad, who conducted autopsy on the body of the deceased and proved injury report. P.W.-5 Dr. Dharmendra Rao certified that deceased was mentally fit and well oriented and was in fit condition of mind for giving her statement. P.W.-6 Rakesh Kumar Pandey, Circle Officer proved that he recovered semi-burnt footwear (chappal), sack of jute, shawl, curtain, jhalar, container of kerosene oil and match box from the place of occurrence. F.S.L. report reveals the use of kerosene oil for setting ablaze the deceased, therefore, learned trial court convicted and sentenced all the appellants to undergo two years simple imprisonment under Section 498-A I.P.C. and a fine of Rs.2,000/- on each appellants and in default of payment of fine two months more simple imprisonment. Life imprisonment under Section 302 r/w Section 34 I.P.C. and fine of Rs.5,000/- on each appellants and in default of payment of fine six months simple imprisonment. All the sentences will run simultaneously and acquitted all the accused-appellants under Section 304-B I.P.C. & Sections 3/4 Dowry Prohibition Act. Being aggrieved with the judgment and order of trial court dated 06.09.2012, convicted appellants have approached this Court by way of filing the present appeal.
12. We have heard, Shri Anuj Dayal, learned counsel for the appellants and Shri Arunendra, learned A.G.A. for the State-respondent and perused the record of this Court as well as the record of trial Court.
13. It is submitted on behalf of learned counsel for accused-appellants that the judgment and order passed by the learned court below is perverse and substantially illegal and has misread the evidence on record. The prosecution has failed to prove its case beyond reasonable doubt. Learned trial court has committed an error apparently on the face of the record by relying on the incorrect evidence. Learned trial court did not take into account the fact that initially the F.I.R. was lodged against six persons but during investigation the names of two accused persons were expunged which goes to falsify the entire prosecution story, therefore, it is prayed to set-aside the judgment and order of trial court and acquit the accused-appellants in the interest of justice.
14. Per contra; learned A.G.A. submitted that the case is of heinous in nature and the victim was set ablaze to the extent of 90% and her whole body was found wholly burnt except sole of the feet. It is true that witnesses of fact i.e. P.W.-1 and P.W.-2 namely; Ramapati Tiwari and Indrawati have been declared hostile on the point of demand of dowry but they have well proved that her daughter was set ablaze by the accused-appellants, therefore, the judgment and order passed by the learned trial court dated 06.09.2012 is liable to uphold.
15. Before analyzing the evidence on record, it is desirable to mention the statements of witnesses in brief:-
P.W.-1 Ramapati Tiwari, who is father of the deceased and informant of the case, has stated on oath that the marriage of his daughter was solemnized with accused-appellant Satish Pandey S/o Shri Laxmi Chand Pandey on 29.04.2007 as per Hindu Rites and Rituals and he gave dowry in the marriage according to his capacity. The Gauna of the same was performed on 25.11.2009 because they were demanding one motorcycle and Rs.70,000/- as additional dowry at the time of Gauna, which he could not give due to his financial condition and the Gauna can be performed only on the intervention of relatives. In the examination-in-chief P.W.-1 has supported the contents of F.I.R. and stated that on 06.09.2010, he was telephonically informed that his daughter was admitted in District Hospital and when he reached there he saw that his daughter was burnt and she died due to burn injuries on 06.09.2010 at about 2:30 p.m. This witness proved written report Ext. Ka-1, inquest report Ext. Ka-2, application of informant for post-mortem Ext. Ka-3 and marriage invitation card Ext. Ka-4 Invitation Card. This witness turned hostile in his cross-examination on the point of demand of dowry. P.W.-2 Smt. Indrawati Devi, who is mother of the deceased and has corroborated the contents of F.I.R. in her examination-in-chief but this witness too turned hostile in her cross-examination on the point of demand of dowry. P.W.-3 Rama Shankar Yadav, S.D.M. has deposed that he recorded the statement of victim in the Burn Ward of District Hospital, Faizabad and he certified in writing that she was conscious and well oriented. He stated that before the dying declaration of the deceased, he has taken her right toe impression because the hands of the deceased were burnt wholly. This witness proved dying declaration as Ext. Ka-5, which is quoted hereinbelow:-
^^eS deys'k iRuh lrh'k ik.Ms; vkt fnukad 6-9-2010 dks lqcg 5-30 cts vius dejs esa ysVh FkhA esjs Åij ifr lrh'k] lkl] llqj] tsBkuh usgk] iRuh fxjh'k pUn us gekjs mij feV~Vh dk rsy Mkydj ekfpl ls vkx yxk fn;sA lHkh yksx igys ls >xM+k djrs FksA lHkh yksx dgrs Fks fd rqe dke ugh djrh gksA blh dkj.k lHkh yksx MkVrs Fks] dgrs Fks fd rqEgkjs eSds okyksa us ngst esa dqN ugh fn;k FkkA ekjrs&ihVrs ugha Fks] dsoy /kedh nsrs FksA vkx tkucw>dj ?kj okyks us tkucw>dj feV~Vh dk rsy fNM+d dj yxkbZ FkhA^^ This witness also proved the inquest report Ext. Ka-2, Ext. Ka-6 Letter to C.M.O., Ext. Ka-7 Letter to R.I., Ext. Ka-8 Police Paper No.13, Ext. Ka-9 Photo Nash, Ext. Ka-10 Specimen of seal.
P.W.-4 Dr. Rakesh Prasad, who stated that he conducted autopsy on the body of the deceased on 06.09.2010 at about 9:45 p.m. and found following injury:-
Before death injury:-
Except sole of feet, she was completely burnt out. Reddish lines were present on the body. Hair was curled by burning.
Internal Examination:-
Swelling on brain and membrane, membrane of lungs, both lungs, trachea, heart mantle, membranes, stomach membrane, pepsin, spleen and kidneys.
Opinion:-
In the opinion of the doctor, the death of the deceased is likely to have been caused by the ante-mortem burn injuries.
P.W.-5 Dr. Dharmendra Rao has proved the fitness certificate and stated that victim Smt. Kamlesh was admitted on 06.09.2010 in Burn Ward of the District Hospital, Faizabad and Magistrate reached there at about 1:00 p.m. The pulse rate was recorded 82 per minute and R/R was recorded 20 per minute. Due to swelling, she was unable to open her eyes but she could speak and her mental condition was stable. This witness issued fitness certificate and stated that she was medically able to give her statement. The statement of the victim was started at about 1:10 p.m. and the same was ended at about 1:25 p.m. P.W.-6 Rakesh Kumar Pandey, Circle Officer deposed that he obtained copy of F.I.R. and chik report, recorded the statements of witnesses u/s 161 Cr.P.C., visited at the place of occurrence and prepared site plan and after collecting sufficient evidence, he submitted charge-sheet in the competent Court against the accused-appellants namely; Sushila @ Annapurna, Neha Pandey, Satish Pandey and Laxmi Chandra Pandey, under Sections 498-A, 304-B, I.P.C. & Sections 3/4 Dowry Prohibition Act, Police Station Poorakalandar, District Faizabad. This witness proved F.S.L. report, charge-sheet and site plan also.
P.W.-7 Atar Singh, Head Constable is a formal witness, who endorsed chik report, G.D. and registered Case Crime No.858 of 2010, under Sections 498-A, 304-B, I.P.C. & Sections 3/4 Dowry Prohibition Act, Police Station Poorakalandar, District Faizabad P.W.-8 Chandradeep Singh, S.I. proved G.D. No.19 as Ext. Ka-17 and G.D. No.40 as Ext. Ka-18.
D.W.-1 Harishankar Pandey, Chief Pharmacist, District Hospital, Faizabad, who proved bed head ticket as Ext. Kha-1 to Ext. Kha-8 in Court and stated that the victim was treated by Dr. Hariom Srivastava and on 06.09.2010 at about 3:15 p.m., she was declared dead by Dr. Laxman Mishra.
D.W.-2 Dr. Hariom Srivastava deposed that victim was admitted in the District Hospital, Faizabad and as per bed head ticket her general condition was very poor. B.P. could not be recorded. Pulse rate was 80 per minute and R.R.-11 (medium). She was burnt 95%. She was medically treated by him and at the time of examination her temperature and breath condition were normal. Pulse rate was recorded 100 per minute.
D.W.-3 Dr. Rajesh Kumar Dubey deposed that he was emergency doctor on 06.09.2010 and the victim was brought by her husband on 06.09.2010 at about 6:30 a.m. in burn condition and her general condition was poor.
16. It is undisputed that P.W.-1 and P.W.-2 i.e. parents of the deceased have been declared hostile by A.D.G.C. on the point of demand of dowry. In their examination-in-chief P.W.-1 and P.W.-2 have specifically stated that there was demand of dowry and their daughter was being tortured for the same. They never complained about demand of dowry at any forum. But in their cross-examinations, they have been declared hostile. It is also specific that P.W.-1 has stated that there was no demand of dowry either before marriage or at the time of marriage or after marriage. P.W.-2 mother of the deceased stated that there was no demand of motorcycle or cash at the time of Gauna. There was not any kind of demand of dowry after marriage, therefore, the essential ingredient of Section 304-B I.P.C. is missing. However, the victim expired within seven years of her marriage in her matrimonial home in abnormal condition.
17. The statement of victim was recorded on the same day on her admission in District Hospital, Faizabad by P.W.-3 S.D.M., Rama Shankar Yadav and the doctor medically certified that she was mentally fit and well oriented and was in fit condition of mind at the time of her statement recorded as dying declaration and in this connection, doctor issued certificate at the end of the statement also.
18. Learned counsel for the accused-appellants argued that in their statements D.W.-2 and D.W.-3 have stated that the general condition of patient was very poor and B.P. could not be recorded. R.R. was 11 and Pulse Rate was 80. It is submitted that in this condition, it cannot be said that patient was in fit condition to deliver her dying declaration, therefore, the dying declaration could not be relied upon for conviction of accused-appellants. The certificate issued by P.W.-3 Ramashankar Yadav could not be relied upon regarding the physical and mental condition of deceased.
19. Learned counsel for the appellants has placed reliance upon the judgment of Hon'ble Apex Court in Prem Kumar Gulati and Another Vs. State of Haryana and Another wherein it is well settled that a truthful and reliable dying declaration may form the sole basis of conviction even though it is not corroborated. However, the reliability of declaration should be subjected to close scrutiny and the courts must be satisfied that the declaration is truthful. He further placed reliance upon the judgment of Apex Court in K. Ramachandra Reddy Vs. Public Prosecutor, wherein it is observed that the dying declaration is undoubtedly admissible under Section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross-examination, the courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of his imagination. The court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration.
20. In the light of above submissions made by learned counsel for the accused-appellants, we have perused the statements of D.W.-2 and D.W.-3. D.W.-3-Dr. Rajesh Kumar Dubey stated that he was working as an emergency doctor on 06.09.2010 when the deceased was admitted in emergency ward at about 6:30 a.m. by her husband. He administered anti-biotic, life saving medicines and drip. Her general condition was very bad. B.P. could not be recorded. Pulse rate was 50 per minute, R.R. was 11 and she was burnt out 90%. He called surgeon for further treatment. D.W.-2 Dr. Hariom Srivastava, Surgeon in District Hospital, Faizabad, who stated on oath that he was called for further treatment of the patient by D.W.-3 Dr Rajesh Kumar Dubey and he examined the patient on 06.09.2010 at 7:30 a.m. The general condition of patient was improved and she was fully conscious. She was given anti-biotic, life saving medicines and drip. Her temperature and breath was normal and pulse rate was 100 per minute. It is also stated by him that as per bed head ticket, she was again examined by doctor at about 1:10 p.m. In this connection, the statement of P.W.-5 Dr. Dharmendra Rao is also pertinent to mention that he stated in his statement that the statement of deceased was recorded at about 1:10 p.m. at that time he was present and he issued fitness certificate. Pulse rate of deceased was 82 and R.R. was 20 per minute. She was unable to open eyes but she was capable of speaking. Her mental condition was normal and the fitness certificate was signed by Dr. Dharmendra Rao, therefore, it is clear from the statements of three doctors that when the deceased was admitted her condition was poor but after administering essential medicines and drip, she improved and she was found fit at the time of recording her dying declaration. P.W.-5 issued certificate and concluded that the dying declaration of deceased was recorded from 1:10 p.m. to 1:25 p.m. and she remained well oriented during this period. However, prosecution failed to prove that the victim was set ablaze on account of the demand of dowry but it is well proved that she died within seven years of her marriage due to ante-mortem burn injuries.
21. According to the dying declaration of deceased, she mentioned the demand of dowry as well as the fact that her in-laws were angry with her and rebuke her on account that she does not assist in the domestic work. P.W.-1 and P.W.-2 have turned hostile, as they stated that no demand of dowry was made by in-laws of their daughter. It appears that she was set ablaze due to day to day domestic discord with her in-laws.
22. P.W.-8 Chandradeep Singh, S.I. has stated on oath that on the direction of Circle Officer, he went at the place of occurrence and recovered semi-burnt footwear (chappal), sack of jute, shawl, curtain, jhalar, container of kerosene oil and match box from the place of occurrence and prepared recovery memo thereof and proved the same as Ext. Ka-19 and Ext. Ka-20. Recovery memo as well as clothes, container of kerosene oil and match box, etc. were proved in Court as material Ext.- 1 to 4 and semi-burnt footwear (chappal), sack of jute, shawl, curtain and jhalar were proved as material Ext.- 5 to 10.
23. Prosecution proved with cogent evidence that accused-appellants by pouring kerosene oil set ablaze the victim. According to the F.S.L. report Ext.-19 dated 20.11.2010, the content of kerosene oil was found and during the analysis the liquid in container was identified as kerosene oil and on the examination of recovered articles i.e. semi-burnt footwear (chappal), sack of jute, shawl, curtain and jhalar the contents of kerosene oil were found, hence, it was found by trial court that she was set ablaze by pouring kerosene oil and as such, the accused-appellants were found guilty of 302 r/w 34 I.P.C.
24. We are of the opinion that the trial court did not find any demand of dowry on the basis of witness of fact and rightly acquitted all the accused-appellants under Sections 3/4 D.P. Act and Section 304-B I.P.C., therefore, there is no reason to convict the accused-appellants under Section 498-A I.P.C. The demand of dowry is important factor to constitute the offence under Section 498-A I.P.C., if there is no demand of dowry then the conviction under Section 498-A I.P.C. by trial court is against the fact and legal proposition of law, therefore, the judgment of trial court is bad on this point and the appeal is liable to be partly allowed to the extent that accused-appellants namely; Sushila @ Annapurna (mother-in-law), Neha Pandey (sister-in-law/bhabhi), Satish Pandey (husband) and Laxmi Chand Pandey (father-in-law) are acquitted under Section 498-A I.P.C. However, their conviction under Section 302 r/w 34 I.P.C. is liable to be upheld.
25. In view of the above, the appeal is accordingly partly allowed. We acquit all the accused/appellants under Section 498-A I.P.C. and confirm their conviction as ordered by the trial Court by means of impugned judgment and order dated 06.09.2012 under Section 302 read with 34 I.P.C.
26. Convicts/appellants, namely, Sushila @ Annapurna (mother-in-law), Neha Pandey (sister-in-law/bhabhi), Satish Pandey (husband) and Laxmi Chand Pandey (father-in-law) are in jail. They shall serve out the sentence awarded by trial court and confirmed by this Court under Section 302 read with section 34 I.P.C.
27. Let a copy of this judgment and order as well as record of trial court be transmitted to the concerned trial court forthwith for necessary information and compliance of this order.
(Renu Agarwal,J.) (Ramesh Sinha,J.) Order Date :- 14.02.2023 Zafar