Allahabad High Court
Smt.Saviti Devi vs State Of U.P. on 13 July, 2010
Author: Yogendra Kumar Sangal
Bench: Yogendra Kumar Sangal
Reserved
AFR
Court No. 10
Case :- CRIMINAL APPEAL No. - 184 of 1999
Petitioner :- Ramakant Misra @ Lalu
Respondent :- State Of U.P.
Petitioner Counsel :- Kunwar Mridul Rakesh,V K Shahi
Respondent Counsel :- Government Advocate
and
Case :- CRIMINAL APPEAL No. - 186 of 1999
Petitioner :- Jagdamba
Respondent :- State Of U.P.
Petitioner Counsel :- Kunwar Mridul Rakesh,V.K. Shahi
Respondent Counsel :- Government Advocate
and
Case :- CRIMINAL APPEAL No. - 187 of 1999
Petitioner :- Smt.Saviti Devi
Respondent :- State Of U.P.
Petitioner Counsel :- Kunwar Mridul Rakesh,V.K. Shahi
Respondent Counsel :- Government Advocate
Hon'ble Yogendra Kumar Sangal,J.
All these aforesaid appeals were filed by the accused of S.T. No. 681/1995 State vs. Jagdamba and etc., under Sections 498-A and 304-B IPC, P.S. Pura Qalander, Faizabad against the judgment and order dated 15.04.1999 passed by VIIIth Additional Session Judge, Faizabad convicting the appellants to undergo R.I. for 10 years to each under Section 304-B IPC and two years R.I. under Section 498-A IPC and to pay a fine of Rs. 1,000/- each and in default of payment of fine, six months R.I. in addition. All these sentences of the accused-appellants ordered to run concurrently.
As per prosecution case, marriage of Smt. Vijay Laxmi grand- daughter of the informant Rajkaran PW-1 had taken place with the accused Ramakant in the year 1989. Out of their wedlock, a son namely Sonu at present aged 1 ½ years was born who is living in his "Nanihal" along with informant etc. For non-fulfillment of demand of dowry i.e. for Scootor, all accused harassed, tortured and treated her with cruelly. On 21.09.1994 at about 5'O clock in the morning after sprinkling kerosene oil on the body of Smt. Vijay Laxmi, accused persons have put her on fire. Only when village persons pressed them, they got her admitted in the hospital and her parent were informed. They reached at the hospital. In the same night at 11.30 PM, she expired. On report by PW-1, a case was registered against all the four accused persons namely Ramakant, his father Gorakhnath, brother Jagannath and brother's wife Smt. Savitri Devi. Police of P.S. concerned started investigation in the matter. Earlier after her death in hospital, police was informed by hospital officials. Police persons reached there. Panchnama, photo lash, challan lash and letter to C.M.O., for post-mortem were prepared. Dead body was sent for post- mortem. Dr. K.N. Srivastava PW-3 conducted the post-mortem of the body and prepared the report Exhibit-Ka-2. In the opinion of the Doctor, she received burn injuries resulted in her death. Statement of witnesses were recorded. Investigation was concluded. Charge-sheet was submitted against all four accused named in the FIR.
As the case under Section 304-B IPC was exclusively triable by the court of Session, so after taking cognizance in the matter, learned Magistrate committed the case to the Court of Session. Trial of the accused persons was started. All the four accused were charged to face the trial for the offences under Sections 498-A and 304-B IPC, but they have pleaded not guilty and claimed their trial.
During the proceedings before the Session Court, one of the accused Gorakhnath had died. Orders for abatement of case against him were passed.
On behalf of the prosecution, PW-1 informant of the case Rajkaran Pandey; PW-2 Smt. Shanti Devi mother of the deceased; PW-3 Dr. K.M. Srivastava who conducted the post-mortem of the dead body; PW-4 Constable Ashok Kumar who prepared the chik report and entered the case in G.D.; PW-5 Investigating Officer Circle Officer Prem Chand were examined. They all have tried to support the prosecution case and proved the documents prepared by them. Genuineness of Panchnama and other papers was not disputed on behalf of the accused.
In their statement under Section 313 CrPC, all the three accused have denied the correctness of the prosecution case and evidence and pleaded not guilty. Accused Smt. Savitri Devi in addition stated that she and her husband lived separately from the family of accused Ramakant. Accused Jagdamba stated that when his Bhabhi was preparing milk and fire was in 'Chullah', 'his' son turn tiled the container of kerosene oil. In process to save him, she fastened in her Sari and fell down and caught fire. They have never made any demand of dowry and in hospital she had stated as such. Accused Ramakant had also stated in the same way and in addition he said that they got admitted her in the hospital and informed the members of family of her parent-side. She had also stated so, in hospital and never demand of dowry was raised.
In defence two witnesses were examined. DW-1 Sri Ram Kewal Tiwari Tehsildar/Magistrate stated that on 21.09.1994 on the information received he went to the hospital to record the dying declaration of Smt. Vijay Laxmi. He recorded her statement at about 9.58 AM to 10.05 AM. Doctor present at that time had certified before and after recording the statement that she was in a position to give her statement. When the statement was recorded, no other person except doctor Mishra was there. He had proved the Exhibit-Kha-1 alleged dying declaration of the deceased. DW-2 Dr. S. Mishra in his statement had tried to corroborate the fact that dying declaration was recorded by DW-1 in his presence and he had certified that she was in a position to state at that time. A document card of vaccination to 'Sonu' born out of wedlock of Ramakant and deceased was also filed.
Hearing the parties counsel and State counsel and perusing the record by the impugned judgment and order, learned Session Judge found the accused-appellants guilty for the offences under Sections 498-A and 304-B IPC and sentenced them as above. Aggrieved, above three separate appeals were filed on their behalf. As all the three appeals related to the same offence and filed against the same conviction order so these appeals are being taken simultaneously for the purpose of final disposal.
Heard learned counsel for the appellants, learned AGA for the State and perused the record.
Undisputedly, all the three appellants are inter-se related and also with the deceased. Ramakant husband, Jagdamba and Smt. Savitri Devi are Jeth and Jethani of the deceased. Marriage of grand-daughter of the informant Rajkaran Pandy PW-1 and daughter of Yagaram Pandey with Ramakant not denied. As per prosecution case, this marriage took place in the year 1989. Although accused-persons tried to suggest that year of marriage is not correct but no other year of the marriage was stated by them in their statement under Section 313 CrPC. It was also not stated and suggested on their behalf that the death of Smt. Vijay Laxmi has not taken place within seven years of her marriage. PW-2 Smt. Shanti Devi is also undisputedly mother of deceased Smt. Vijay Laxmi.
Death of Smt. Vijay Laxmi has taken place in the Government Hospital on 21.09.1994 at about 11.30 PM as she received burn injuries in her matrimonial house in the morning on 21.09.1994 i.e. otherwise then normal circumstances is also not disputed on behalf of the accused. She was admitted in the hospital on the same day at about 8.00 AM by the accused persons for her treatment also not disputed. On the information of hospital authorities Panchatnama and other papers were prepared by the police of P.S. concerned at about 7.00 AM on 22.09.1994. Copy of Panchatnama and other papers prepared by the police are available on record. Genuineness of the same was not disputed on behalf of the accused which is clear from the record. Later on, post-mortem of dead body was done by Doctor PW-3 K.M. Srivastava and he prepared and proved the post-mortem report Exhibit-Kha-2. As per post-mortem report second to third grade burn injuries were found all over the body of the deceased except both sole. Skin was chard and blisters all over the body with red colour surface were present. In the opinion of Doctor cause of death was due to shock as result of the ante-mortem burn injuries. Her age was about 24 years. During the course of argument correctness of post-motem report and on oath statement of PW-3 was also not challenged on behalf of the accused-appellants.
As per prosecution case as demand of dowry of Scooter by the accused-appellants was not fulfilled by the parents of the deceased so Smt. Vijay Laxmi was being harassed, tortured and treated cruelly by them continuously since the second day of marriage till her death. She was forced to live in her parents house for long period for this cause, where she gave birth to a child. Both mother and son were not cared by the accused- appellants. Subsequently for a short period she went to her matrimonial house where again she was treated cruelly by the accused persons for non- fullfillment of demand and one accused Jagdamba had thrown "hot dal"
on her and she received injuries from that. She was brought to her parental house and where she was forced to live for a long period again. Only 15 days before of death, Ramakant and his father Gorakhnath came to her parents house to bring her, where PW-1 Rajkaran refused to send her saying that she is being harassed and tortured by the accused persons. They assured PW-1 that now this will not be done again only then she returned to her matrimonial house and later on, this occurrence took place. When they were informed about incident through Narendra related to Rajkaran Pandey, they came at the hospital where they found her there under treatment of burn injuries. Accused-persons were not there in the hospital. They got treated her but later on she succumbed to the injuries in the night at about 11.30 PM. Demand of Scootor was not fulfilled by the parents made by the accused-persons as per prosecution case which resulted in her death by the act of the accused-persons.
On the other hand defence case is that in the morning of 21.09.1994 when she was preparing milk for baby on 'Chullah', baby was near to her. He (baby) turn tile the container of kerosene oil which was spread there. In order to save the baby when she was trying to stand up, she fastened in her Sari and fell down on the 'Chullah' and caught fire. On her hue and cry, accused-persons rushed towards the place of occurrence and extinguished the fire. As she received burn injuries, she was taken to hospital for treatment and was admitted there. Her parent were informed. During her treatment in the hospital in the night she succumbed to the injuries. No one amongst the accused had dared to state the defence case on oath before the Court and also to face the cross-examination on the point. As per defence case her dying declaration was recorded on the information of the Doctor to the Magistrate and they examined DW-1 the Tehsildar/Magistrate and also the Doctor DW-2 who was said present at the time of recording the dying declaration. On behalf of the prosecution recording of such dying declaration of the deceased was denied and it was argued that the same was prepared in the collusion of the accused later on. Discussing the evidence of both these defence witnesses and cited case law on behalf of both the parties, giving detailed reasons, learned Session Judge had discarded the evidence of both these defence witnesses and not accepted the case of the defence that dying declaration of the deceased was recorded.
Undisputedly, deceased was admitted in the hospital where she was treated for burn injuries. Her bed head ticket was prepared in the hospital. Photocopy of the same was filed by DW-2 on the request of prosecution counsel when he was cross-examined and he stated that bed head ticket was prepared by Doctor Hari Om Srivastava and he is acquainted with his writing and signatures and he identified his writing and signatures on the bed head ticket which was with him at the time of statement and he said that he is filing the photocopy of the same with his signatures in the Court. From its perusal, it reveals that she was admitted in the hospital on 21.09.1994 at about 8.00 AM and at that time she was having 90 to 95% superficial to deep burn injuries all over her body. Her blood pressure was not recordable at the time of her admission in the hospital. Later on, when she was examined by the Doctor on the bed again it was found that her pulse and blood pressure were not recordable and kerosene oil smell was all over her body and she was having deep to superficial burn injuries 90 to 95% Doctor had prescribed medicines for her treatment. It is said recording her dying declaration was started at 9.58 AM and completed at 10.05 AM. DW-2 Doctor said that before recording the statement and after recording the same he found that she was in senses. When DW-1 Magistrate started to record her statement, he found her in senses and till he recorded her statement she remained as such no such certificate was given by the Magistrate below her statement Exhibit-Kha-1. Although in his oath statement he stated so but why he has not certified as such in the end of the statement, it was not sufficiently explained by him. Under the provisions of law, it is he who is required to satisfy himself about her mental condition before start to recording her statement. Earlier two other Doctors have tried to record her pulse and blood pressure but as per copy of the bed head ticket the same were not recordable. Learned AGA argued that Doctor DW-2 neither in the certificate nor in his oath statement had stated how he reached at this conclusion that she was in a position to state. The primary duty of the Doctor was to record her pulse and blood pressure but he had not stated about recording same although these were not recordable earlier due to her serious condition. My attention was also drawn by learned AGA on the detail of medicines prescribed and administered to her by the doctor when she was on the bed in the ward and argued that injection of Fortwin Phenargan were administered for sedation purpose and said that when such medicine are injected, within 15 to 20 minutes patient goes in sound sleep and it cannot be accepted that she will be in a position to speak for 6 to 8 hours. She was admitted in the hospital at about 8.00 AM which is clear from the note on bed head ticket. Definitely she would have been in severe pain and must have been crying. Medicines prescribed by the doctor must have been administered to her immediately. She will be in a position to state before the Magistrate at about 10'O clock it is not probable and believable in the facts and circumstances of the case. When it was inquired from DW-2 by the State counsel whether any sedative was given to the patient or not, he had given evasive reply saying that what was prescribed to the patient by the Doctor, it is not readable in the bed head ticket, shows that he is not coming with clean hands and trying to suppress the correct fact. There is no note on the bed head ticket also that dying declaration of the deceased was recorded. Thumb impression of the patient is said on Exhibit-Kha-1 but there is no note of the Magistrate on the same to whom it belongs. Detailed also not given whether it is a thumb impression or of her finger impression.
From the bed head ticket and post-mortem report, it reveals that burn injuries were spread all over her body and these injuries were of 90 to 95 percent of grade 2nd and 3rd degree and whole of her body was black/chard. Blisters were also found on her body. Raises in finger or in thumb for impression purposes on paper will be available, it is also not believable. Both PW-1 and PW-2 have stated on oath that when they reached at hospital at about 1'O clock, she was not in a position to speak. PW-5 Investigating Officer had also stated that during the course of investigation, he had not found any statement recorded as dying declaration. Learned AGA had drawn my attention to the fact in the dying declaration Exhibit-Ka-1, she had stated that her baby was there on the spot. On the other hand in his statement under Section 313 CrPC accused Jagdamba stated that "his" baby was there who turn tile the container of the kerosene oil. Moreover from the alleged statement (dying declaration), it reveals that with the help of kerosene oil fire was put in the 'Chullah', and when she was trying to stand up fastened in her Sari and fell down on Chullah. She will catch fire of such nature in short period that when accused Ramakant and his other family members reaches there, the fire will spread so much in volume that whole her body will burn upto 90 to 95% having second to third grade injuries, it is not believable.
Learned AGA after drawing my attention on the fact in file prepared in the Magistrate Court (before the committal proceedings) and argued that earlier till the bail was not granted to the accused-persons, there was a case that her husband and father-in-law also received injuries in saving her from the fire. But as these facts were not correct and there was no burn injuries on their body so they did not get medically examined themselves and in the trial they have not pressed this plea in their defence. Had they have tried to save her from the fire and the fire was of such nature that whole her body was burnt within second, in saving her they will not receive any injury from the burn, it is again surprising and not believable. Copy of the bed head ticket submitted and proved by DW-2 in the Court shows that there was smell of kerosene oil from her body when she was examined by the Doctor in the ward. If she had fell down on the burning 'Chullah' and caught fire, there will be smell of kerosene oil from her body, it is not believable. Learned AGA argued that this smell of kerosene oil from her body in the ward of hospital at the time of her examination and also nature of injuries found on her body suggests that kerosene oil was sprinklinged all over her body and only then she was put on fire resulting these 90 to 95% superficial to deep injuries of second to third grade. She was wearing synthetic cloth at that time, it is not the case of the accused- persons. Seeing the nature and seriousness of burn injuries on the body of victim a smell of kerosene oil from the same does not rule out the correctness of the argument raised by learned AGA in the facts and circumstances of the case and this also create doubts on the correctness of the fact mentioned in the alleged dying declaration. From the above facts and going through the judgment of the trial court and taking into consideration argument of both the parties, I am of the view that it is not established on the record that dying declaration of the deceased was recorded and also of the view that there is no illegality, invalidity and improbability in the findings of the trial court in this regard.
It is on the record that when the parents of the deceased reached at the hospital no one amongst the accused was present there. Medicines were being purchased by the cousin of the PW-1 Rajkaran. Nobody was there to receive the dead body after post-mortem and cremation of dead body and last rites were done by her parents. Nowhere it was claimed on behalf of the accused that they remained present in the last rites of the deceased. As per prosecution case parents of deceased were not informed by the accused persons and one Narendra had informed them about the occurrence and it is nowhere in the evidence of the accused persons that they informed the parents through Narendra about the occurrence. These are other certain facts on record which supports the correctness of prosecution case.
It is said on behalf of the accused appellant that there is delay in lodging the FIR. Informant and his other family members reached at the hospital at about 1'O clock. As per their own version accused persons were not there. Why immediately they have not informed the police about the occurrence and also till next day noon, it is not clear. Learned AGA argued that Smt. Vijay Laxmi was all alone in the hospital. She was being treated by the doctors for her injuries. They remained busy in arrangement of medicines and in her care. When next day, they cremated the dead body, report was lodged by them. There is no inordinate delay in lodging the FIR in the facts and circumstances. My attention was also drawn on the facts narrated in the Panchatnama. Genuineness of the same was accepted by the accused. In the "Rai" of Panchas, Investigating Officer had mentioned that in their opinion she was done to death by putting her on fire and they have not accepted that it is a case of accidental burn. It was further argued by learned AGA that it is in the statement of PW-1 that deceased "Saas"
and three "Nanad" are still alive, they are not named in the FIR. Informant has only named those persons in the FIR who have actually harassed and tortured the victim for non-fulfillment of demand of Scootor. If they would have any intention of false implication they will leave "Saas" and "Nanad" or will not name them in the FIR, it is not believable. This argument of learned AGA is also not without force in the facts and circumstances.
Smt. Savitri Devi in her statement under Section 313 CrPC had stated that she and her husband live separately from the family of Ramakant and deceased. Learned AGA argued that her this statement does not find support from Jagdamba statement under Section 313 CrPC and her Dever Ramakant has also not supported this fact. No defence evidence was adduced on behalf of the accused in this regard also and this case was developed later on by the accused to save the consequences of this case. Moreover, from the statement of Jagdamba under Section 313 CrPC, it reveals he claimed that his son at about 5.00 AM in the morning on the day of occurrence was along with deceased when she was preparing milk. If this would have been in the position that Savitri Devi was living separately, his son will be there where the occurrence has taken place with deceased, it is also not believable and probable. From these facts and circumstances, it is clear that accused Smt. Savitri Devi and Jagdamba failed to establish that they were not living with Ramakant and his family in the same house.
Learned counsel for the accused-appellants further argued had they put her on fire they will admit her in the hospital for her treatment to save her so that she may state against them to her parents, it is not believable and probable. Since very beginning i.e. from the FIR, it is clear that prosecution case when the villagers reached there only under their pressure, accused were forced to get admitted her in hospital for her treatment. Moreover, it was further argued on behalf of the prosecution that possibility of her survival was not there and only for face saving, they got admit her in the hospital to answer the parents of the deceased in the matter. In the facts and circumstances of the case this argument of the learned AGA also cannot be said without force.
Demand of accused-persons for Scootor in dowry was not fulfilled and she was being harassed and tortured by the accused persons continuously since the second day of marriage and also soon before her death clear from the evidence on record. Only 15 days before when she was brought from her parents house when both Ramakant and his father assured PW-1 that now they will not harass her for the purpose, this all shows that only for the non-fulfillment of dowry she was done to death in her matrimonial by the accused persons within 7 years of her marriage with accused Ramakant. Section 304-B IPC deals with the offence of dowry death which reads as follows:-
"304-B. Dowry Death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand of dowry, such death shall be called 'dowry death', and as such husband or relative shall be deemed to have caused here death.
Explanation.- For the purpose of this sub-section, 'dowry' shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."
Section 113-B of the Evidence Act provides as follows:-
"113-B.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation: For the purposes of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)."
Section 106 of Evidence Act is designed in such a way by the legislators that in exceptional cases in which it would be impossible or at any rate disproportionately difficult for the prosecution to establish facts which are especially within the knowledge of the accused they can prove it without difficulty or inconvenience. Accused persons are failed to discharge their burden laid under Section 106 Evidence Act. In the circumstances of the case, it can be presumed that cruel treatment with her remained continued till she was died for non-fulfillment of demand of dowry. At the time of incident only victim and the accused were in the house what happened there only they can tell better. How she received burn injuries why have given a story but from the above discussion, it is clear that they failed to establish their version on record. A burden lies on them to prove what happened at that time which resulted in her death, but they failed to discharge the same.
In 2005 SCC (Crl.) 511 Kamlesh vs. State, Hon'ble Apex Court has laid down as follows:-
"Marriages are made in heaven, is an adage. A bride leaves the parental home for the matrimonial home, leaving behind sweet memories therewith a hope that she will see a new world full of love in her groom's house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects not only to be a daughter-in-law, but a daughter in fact. Alas ! the alarming rise in the number of involving harassment to the newly wed girls for dowry shatters the dreams. In-laws are characterised to be outlaws for perpetrating terrorism which destroys the matrimonial home. The terrorist is dowry, and it is spreading tentacles in every possible decision."
Giving detailed and sufficient reasons, scrutinizing the evidence with panic eyes discussing the case law cited by both the parties, learned trial court held guilty to the accused-appellants for the offences for which they were charged. All the circumstances proved by the prosecution clinchingly establishes the culpability of the accused themselves and no innocence of the accused from any view point is found. Already lenient view was taken by the trial court in awarding the sentence to the accused- persons. I do not find any force in the appeals of the accused-appellants and the same are liable to be dismissed.
Accordingly, all the three appeals are hereby dismissed. Sentence awarded to all three accused-appellants namely Ramakant, Jagdamba and Smt. Savitri Devi are confirmed. Accused-appellants are on bail. Their bail are hereby cancelled. They are not present in the Court today. Copy of the judgment along with record be sent to the trial court forthwith to procure their attendance and to send them in jail to serve out the sentence awarded to them. Compliance report be sent to this Court by the trial court within two months.
Order Date :- 13.07.2010 Rakesh