Savita Devi & Another vs State Of U.P. on 31 July, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved

Court No. – 52

Case :- CRIMINAL APPEAL No. – 2317 of 2006

Appellant :- Savita Devi Another

Respondent :- State Of U.P.

Counsel for Appellant :- Krishanji Khare,Harshita Rani A.C.,L.S. Yadav,Satish Trivedi

Counsel for Respondent :- Govt. Advocate

Connected with

Case :- CRIMINAL APPEAL No. – 2318 of 2006

Appellant :- Siya Ram

Respondent :- State Of U.P.

Counsel for Appellant :- Krishanji Khare,L.S. Yadav,Satish Trivedi

Counsel for Respondent :- Govt. Advocate

Hon’ble Mrs. Vijay Lakshmi,J.

Criminal Appeal No. 2317 of 2006 has been filed by Savita Devi (married Nanad) and Chanmati Devi (unmarried Nanad) and Criminal Appeal No. 2318 of 2006 has been filed by Siya Ram (husband) and Smt. Sharda Devi (mother-in-law) against the judgment and order dated 6.4.2006 passed by the Additional Sessions Judge/ F.T.C. No. 1, Ghazipur, in S.T. No. 525 of 2004, State Vs. Siyaram and others, whereby they all have been found guilty resulting in their conviction under sections 498A, 304B I.P.C. and section 4 D.P. Act. All of them have been sentenced to undergo rigorous imprisonment for ten years u/s 304-B I.P.C., for three years R.I. with fine of Rs. 5000/- u/s 498-A I.P.C. and for two years R.I. u/s 4 D.P. Act with default imprisonment of six months.

As both the appeals arise out of the same impugned judgment in the same sessions trial, they are being decided by this common judgment.

Brief facts of the case are that Smt. Nirmala Devi (deceased), daughter of informant Ram Karan was married to accused Siya Ram on 12.3.2000. In the marriage, dowry was given by her father according to his capacity but it could not satisfy the accused persons and additional dowry was being demanded in the shape of cooler, fan and coloured television. When these items could not be given, she was harassed and ill treated and was finally set on fire on 10.4.2004 in the night at about 8.00 P.M. The informant i.e. the father of the victim came to know about the incident in the morning of the next day i.e. on 11.4.2004 at about 4.00 A.M. then he immediately rushed to the matrimonial home of his daughter. She was taken to the hospital for treatment in the morning of 11.4.2004 where she succumbed to her injuries on 1.5.2004. The post mortem was conducted on the same day in which the cause of death was found to be septicemia in wounds caused on account of burn injuries. The deceased was medically examined on 11.4.2004 at 8.00 A.M. by the Medical Officer in District Hospital, Mau. The injury report Ex. Ka-4 shows that she was brought by Smt. Sharda Devi i.e. her mother-in-law. This report also shows that she had 90% burn injuries, the smell of kerosene oil was present and her condition was very serious.

During the period when she was being treated in the hospital, her dying declaration was recorded by the Naib Tehsildar on 13.4.2004 at 4.15 P.M., after obtaining fitness certificate from the medical officer, in which she stated that she was married in March 2000. On 5.4.2004, she had returned to her matrimonial home from her parental home. On 10.4.2004, when she was sleeping, her mother-in-law, three nanads namely Dhanwati, Chanmati and Savita and her husband tied her hands and legs with a rope and gagged her mouth with a piece of a cloth, thereafter they sprinkled kerosene oil on her body and set her on fire. In the morning when her parents came, she was taken to hospital. Her husband, mother-in-law and nanads continuously used to demand money as dowry and they set her on fire on that account. She also stated that two days prior to this incident, her father-in-law had gone out of the village.

The Investigating officer recorded the statements of the witnesses, inspected the place of occurrence and prepared the site plan (Ex. Ka-5). He recovered the pieces of burnt Sari of the deceased, burnt Mangalsootra, half burnt pillow and a match box having five match sticks in it and prepared the recovery memo (exhibit Ka-6) of all these items. After conclusion of investigation, charge-sheet was submitted against the appellants.

The prosecution, in order to prove its case produced eleven witnesses in all. A brief description of the witnesses of fact produced by the prosecution is as under:-

PW1 is Ram Karan (father of the deceased), PW2 is Awadhesh Chauhan (brother of the deceased), PW3 is Dhanwati (mother of the deceased).

The list of eight formal witnesses produced by the prosecution is as follows:-

PW4 is Constable Ramesh Kumar Pandey, who has prepared the check report on the basis of the written report submitted by the first informant and thereafter has made necessary entries in the general diary.

PW5 is Dr. Devendra Nath Ram, who was posted at District Hospital Mau, on the date of the occurrence and who had medically examined the deceased on 11.4.2004 at 8.00 A.M. During medical examination he found that the deceased had sustained 90% burn injuries, her condition was serious, smell of kerosene oil was present on her body. According to his opinion the burn injuries sustained by the deceased were of such nature that it might have resulted in her death at any time.

PW6 is Ram Jatan, who was posted as S.H.O. of P.S. Dullahpur, on 13.4.2004. He is the first Investigating officer of the case. He has stated about the proceedings of the investigation conducted by him.

PW7 is Dr. S. K. Singh, who had performed autopsy on the dead body of the deceased. He has duly proved the post-mortem report, which was marked as Ex. Ka-8.

PW8, Gyanendra Prasad, is Circle officer, who is the second Investigating officer of this case and who has filed charge-sheet against the appellants.

PW9 is Avinash Kumar, Naib Tehsildar, under whose supervision the inquest on the dead body of the deceased was conducted.

PW10 is Dharmendra Kumar Singh, Naib Tehsildar, who has recorded the dying declaration of the deceased and he has duly proved it as Ex. Ka-16.

PW11 is Dr. Mangal Singh, who was posted as Emergency Officer, District Hospital, Mau, on 13.4.2004, who had given the certificate of fitness to the deceased before recording her dying declaration by the Magistrate.

A perusal of the statement of prosecution witnesses shows that all the witnesses have fully supported the prosecution case in their testimony during trial. All of them have been cross-examined at length by the learned defence counsel but nothing could have been elicited to cause any shadow of doubt on the veracity of their statements.

After conclusion of prosecution evidence statements of accused persons were recorded u/s 313 Cr.P.C. in which they denied from the charges and claimed their false implication. All of them stated that the marriage between the accused-appellant Siya Ram and the deceased was performed on 27.5.1996 and thus more than seven years had elapsed on the date of the occurrence. They also stated that due to an accident, the kerosene stove got burst when the deceased was cooking food. As a result, her clothes caught fire and she sustained burn injuries. The accused have also stated that the appellant Smt. Sharda Devi herself got the deceased admitted in the hospital. They had denied that any dowry demand was ever made by them from the deceased. It has also been stated by the appellant Siya Ram that at the time of occurrence, he was working in the fields. His married sisters Savita and Dhanmati were in their matrimonial homes and his younger unmarried sister Chanmati had gone to matrimonial home of Savita to attend her as Savita was suffering from prenatal illness.

The appellant Sharda Devi stated that the father of the deceased was demanding Rs. 50,000/- from her husband and when her husband did not give the money to him, he lodged the false report. She has further stated that she was present at the hospital all the time and her daughter-in-law was not in a position to speak. The doctor has given a false certificate that the deceased was in a position to speak and the dying declaration is fake.

The appellant Savita has stated that she was married 12 years prior to the occurrence. She has four children. Since prior to two years from the date of occurrence, she did not visit her parental home, she was pregnant at the time of occurrence and was staying at her matrimonial home due to illness. Her younger sister Chanmati was also staying with her at that time to take care of her.

The appellant Km. Chanmati Devi has stated almost the same facts. Her age, recorded in her statement is 17 years. The prosecution has not disputed this fact. Thus, Chanmati was a juvenile on the date of the occurrence according to her statement u/s 313 Cr.P.C..

The appellants have produced five defence witnesses. DW1 is Bhikhari Chauhan, DW2 is Shiv Shanker Tiwari, DW3 is Doodhnath, DW4 is Basant Chauhan and DW5 is Ram Lakhan.

DW1, Bhikhari Chauhan is the Principal of Rambali Chauhan Uchchattar Madhyamik Vidyalaya. He has produced in the court the school register to show that the date of birth of the appellant Chanmati is 10.9.1989 and the appellant Chanmati had not even completed 15 years of age on the date of the occurrence.

DW2, Shiv Shanker Tewari is the Headmaster of Primary School, Khojwan, who has produced in the court the transfer certificate of the school, first attended by the appellant Chanmati, according to which also, her date of birth is 10.9.1989.

Both these witnesses have been cross-examined at length but noting appeared to cast a shadow of doubt on their testimony. Thus, from the statements of DW1 and DW2 and also from the age mentioned in the statement recorded u/s 313 Cr.P.C. it is clearly evident that the appellant Chanmati was a minor on the date of the occurrence.

DW3, Doodhnath is a co-villager of the appellants, who has stated that the deceased caught fire due to an accidental bursting of stove while cooking food. He has also stated that the deceased was admitted in the hospital by her mother-in-law Sharda Devi. It is also stated that both the families were very poor, therefore, there was no question of demanding such articles as alleged by the prosecution i.e. cooler, fan and coloured T.V.. He has stated that the stove found on the spot was given in his custody by the police, with the instructions to produce it before the court as and when the court desires. DW3 has produced the stove during his testimony, which was marked as material exhibit 1.

DW4, is Basant Chauhan, father-in-law of the appellant Dhanmati. He has stated that his daughter-in-law Dhanmati, after her marriage, solemnized five years prior to the occurrence, had never visited her parental home, till the death of her sister-in-law Nirmala (the deceased). He has further stated that Nirmala died after two years of her marriage.

DW5, Ram Lakhan is a neighbour of the appellant Savita. He has stated that at the time of occurrence the appellants Chanmati and Savita were present at his village and not at the village where the occurrence took place.

Learned trial court after considering the evidence produced by the prosecution and also by the defence, came to the conclusion that all the ingredients of section 304-B I.P.C. were present in the case. The learned trial court found the dying declaration of the deceased trustworthy. However, keeping in view the fact that the accused Dhanmati was neither named in the FIR nor her name was surfaced during the first statement of the deceased, recorded by the Investigating officer, the learned trial court found the involvement of the accused Dhanmati as doubtful but the involvement of the appellants Siyaram, Sharda Devi, Savita and Chanmati was found to be proved beyond reasonable doubt by the trial court. Consequently, all of them were convicted and sentenced as aforesaid.

The impugned order shows that the learned trial court has not expressed any view about the juvenility of the accused Chanmati on the date of the occurrence and has treated her at par with the other co-accused persons sentencing her with the same punishment of ten years R.I. under section 304-B I.P.C. like other accused persons.

Heard Ms. Harshita Rani, learned amicus curiae for the appellants and Mr. Shanti Prakash Patel, learned AGA for the State. Perused the lower court’s record.

Learned amicus curiae appearing on behalf of the appellants has contended that the doctor, who had examined the deceased on 11.4.2004, had found that the condition of the deceased was continuously deteriorating and the burn injuries were of such serious nature that her death could have taken place at any time. Learned amicus curiae has contended that under such circumstances it cannot be said that after two days on 13.4.2004 i.e. the date when her dying declaration was recorded, she was in a fit mental condition. It is further contended that in the preponderance of probabilities, the involvement of Nanads, specially married Nanad, having four children, does not appear natural, hence their presence on the spot at the time of the occurrence is doubtful. It is further contended that no specific role has been assigned to any of the appellants. It is also contended that there are material contradictions in the FIR version of the story, as narrated by the prosecution witnesses and as mentioned in the dying declaration. Learned amicus curiae has further contended that in the FIR and in the statement of the witnesses, it has been stated that the deceased was being treated with cruelty due to non-fulfillment of the demand of additional dowry in the shape of a cooler, fan and coloured television whereas in the dying declaration the deceased has stated that her husband, mother-in-law and Nanads were demanding cash money and therefore, they set her ablaze. It is further contended that the appellant Chanmati despite being a juvenile, was illegally convicted in this case. Moreso, she being not a direct beneficiary, her name was not even mentioned in the FIR, however, the trial court, without considering these facts, found Km. Chanmati guilty. Thus the findings of the trial court being perverse are liable to be set aside and the appeal deserves to be allowed.

Per contra, learned AGA has contended that the dying declaration, if found reliable, can be the sole basis of conviction. He has contended that in this case, the dying declaration of the deceased has been recorded by a Magistrate after receiving fitness certificate from a doctor. The doctor and the Magistrate have been produced in the court as witnesses and they have duly proved the dying declaration, therefore, the court below has rightly convicted the appellants relying on the dying declaration. According to learned AGA, there is no illegality in the impugned judgment in so far as the conviction of the appellants Siyaram, Sharda Devi and Savita are concerned. However, in so far as the conviction of Km. Chanmati is concerned, learned AGA could not point out anything relevant as to how without recording the finding about the juvenility of Km. Chanmati, the trial court has convicted her only on the basis of the fact that her name has appeared in the dying declaration of the deceased.

Considered the rival submissions of the parties.

By the impugned judgment, the appellants have been convicted under section 498-A and 304-B of I.P.A. And section 4 of Dowry Prohibition Act.

Section 304B of I.P.C. reads as follows:

304B. 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 for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation-For the purposes of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less the seven years but which may extend to imprisonment for life.

This section was inserted by the Dowry Prohibition (Amendment) Act, 1986 with a view to combat the increasing menace of dowry deaths. It lays down that 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 the death of the woman, she was subjected to cruelty or harassment by her husband or his relations for or in connection with any demand for dowry, such death shall be called “dowry death” and the husband or relatives shall be deemed to have caused her death and shall be punishable with imprisonment for a minimum of seven years but which may extend to life imprisonment.

As per the explanation to the section, the “dowry” for the purposes of this section shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 which defines “dowry” as follows:

2. Definition of “dowry” – In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly –

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Keeping in view the object, a new Section 113-B was introduced in the Evidence Act to raise a presumption as to dowry death. It reads as under:

113B. Presumption as to dowry death- 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.

Section 498A I.P.C. reads as under:

498-A, Whoever being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purposes of this section, “cruelty” means

a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

A careful analysis of Section 304B shows that this section has the following essentials:

(1) The death of a woman should be caused by burns of bodily injury or otherwise than under normal circumstances;

(2) Such death should have occurred within seven years of her marriage;

(3) She must have been subjected to cruelty or harassment by her husband or any relative of her husband soon before her death;

(4) Such cruelty or harassment should be for or in connection with demand for dowry.

A careful perusal of the evidence available on the record in the present case shows that all the prosecution witnesses have supported the prosecution case during their testimony. In so far as the dispute regarding the date of marriage is concerned, though the accused persons have stated in their statement recorded u/s 313 Cr.P.C. that the marriage between the deceased and Siyaram took place on 27.9.1996, no evidence has been produced by them in proof of the aforesaid fact. Moreover, DW4 during his cross-examination, has admitted that the deceased Nirmala died within two years of her marriage.

In view of the above, the first ingredient of section 304-B I.P.C. is found established.

All the prosecution witnesses are throughout cogent and consistent during their depositions and there is no reason to disbelieve them. All of them have stated about the ill-treatment meted out to the deceased in her matrimonial home in relation to additional demand of dowry, therefore, the second ingredient is also found proved.

In so far as the discrepancy between the statements of the prosecution witnesses and the dying declaration is concerned, keeping in view the fact that the deceased was in a serious condition at that time, hence such discrepancy may occur during her dying declaration, the entire prosecution case cannot be discarded only on this ground.

The deceased has died within two years of her marriage at her prime age of 20 years, thus, it was clearly an untimely death under unnatural circumstances inside her matrimonial home. The mother of the deceased (PW3) has categorically stated that the deceased was not inclined to go to her matrimonial home under the apprehension that she might be killed due to non-fulfillment of additional dowry. The prosecution witnesses have stated that whenever she used to come to her ‘maika’ she always informed them about the ill-treatment meted out to her in her matrimonial home due to non-fulfillment of the dowry demand. PW1 i.e. the father of the deceased has stated that the husband and the in-laws of his daughter were asking for a coloured television, cooler and a fan or the price of the aforesaid articles in cash. He has also stated that his daughter while going back to her matrimonial home without the articles demanded by her husband and in-laws was apprehending about her death. There is no reason to disbelieve the statements of parents of the deceased. Therefore, all the essential ingredients of Section 304-B I.P.C. are found to be successfully established by the prosecution in this case. Under these circumstances the burden has shifted on the accused persons to prove their innocence. The appellants have tried to prove it by means of producing five defence witnesses, who all are either their close relatives or neighbours. Their statements cannot be relied upon in view of the dying declaration of the deceased in which she has categorically made allegations against all the appellants.

The doctor (PW-11), who has given the fitness certificate and the Naib Tehsildar (PW-10), who has recorded her dying declaration, are independent witnesses, having no enmity with the accused-appellants. Admittedly, both the parties belong to lower strata of the society, suffering from extreme poverty and there is no such allegation that the palms of either the doctor or the Naib Tehsildar were greased to record such dying declaration and it was therefore, recorded for some extraneous consideration. There is no reason to disbelieve the dying declaration of the deceased in this case.

Hon’ble Apex Court, in the case of Smt. Laxmi Vs. Om Prakash and others, AIR 2001 SC 2383, has held as under:-

“Nemo Moriturus praesumitur mentire- No one at the point of death is presumed to lie.” “A man will not meet his maker with a lie in his mouth”- is the philosophy in law underlying admittance in evidence of dying-declaration. “A dying-declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying-declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts. It becomes a very important and a reliable piece of evidence and if the Court is satisfied that the dying-declaration is true and free from any embellishment, such a dying-declaration, by itself, can be sufficient for recording conviction even without looking for any corroboration.”

In Kundula Bala Subrahmanyam Vs. State of A.P. The Apex court added- such a statement, called the dying declaration, is relevant and admissible in evidence ‘provided it has been made by the deceased while in a fit mental condition’.

Harjit Kaur Vs. State of Punjab, (1999) 6 SCC 545 was another case of bride burning. There, the dying declaration was recorded by the Sub Divisional Magistrate, the genuineness of which was challenged inter-alia on the ground that there was an agitation by the relatives of the deceased and the declaration was recorded by the Sub Divisional Magistrate under pressure. The Court, however, held that Sub Divisional Magistrate being independent witness holding high position, has no reason to do anything, which was not proper. It was, therefore, held that genuineness of dying declaration could not be doubted and conviction recorded on that basis could not be faulted.

Now reverting to the facts of the case in hand, the doctor has certified about fitness of deceased before recording of her statement and thereafter the Magistrate has recorded her statement. Both these witnesses have been produced in court, who have duly proved it.

In Kaliya Vs. State of Madhya Pradesh, (2013) 10 SCC 758, which was also a case of death by kerosene oil burn, the Apex Court disbelieved the plea of alibi and affirmed the conviction, relying on the dying declaration.

In Vikas and others Vs. State of Maharashtra, (2008) 3 SCC 516 the order of conviction and sentence was upheld by Hon’ble Supreme Court, on the basis of dying declaration despite the fact that PW1 i.e. the father of the victim, had turned hostile and had not supported the prosecution case.

In the present case also, the dying declaration corroborated by other evidence, was found reliable and trustworthy by the learned trial court, resulting in conviction of the appellants namely Siyaram, Sharda Devi, Chanmati Devi and Savita Devi. However, the learned trial court committed a mistake while convicting Km. Chanmati, without recording any finding on the issue raised by the defence that Chanmati was a juvenile on the date of the occurrence, therefore, the impugned judgment requires interference with regard to conviction and sentence awarded to Km. Chanmati.

Accordingly, Criminal Appeal No. 2317 of 2006 filed by Savita Devi and Chanmati Devi is partly allowed and Criminal Appeal No. 2318 of 2006 filed by Siya Ram, and Sm. Sharda Devi is dismissed. The conviction and sentence awarded to the appellants Savita Devi, Siyaram and Smt. Sharda Devi are hereby confirmed and the conviction and sentence awarded to the appellant Km. Chanmati is hereby set aside.

Before parting with the judgment, it is relevant to mention that according to the report submitted by the Jail Superintendent, Ghazipur, dated 2.4.2016 Km. Chanmati, who was detained in jail on 20.7.2004 as an under trial and on 6.4.2006, after her conviction from the trial court, was released on 6.8.2007 under the Government order of remission. The Jail Superintendent, Ghazipur, has also reported that the appellant Savita Devi, after undergoing sentences of six years six months and twelve days and after receiving the benefit of remission, was released from jail on 22.1.2011. The appellant Sharda Devi has also been released from jail in pursuance of the Government order of remission dated 22.2.2011. So far as the appellant Siyaram is concerned, according to the report of the Jail Superintendent, Ghazipur, he has suffered the entire period of sentence awarded to him by the trial court and has deposited the entire amount of fine. Thereafter he has also been released from jail on 1.6.2012.

As all the appellants have already undergone the sentence awarded to them by the trial court, there is no need to pass any further order in this regard.

The learned amicus curiae, who has very efficiently assisted this court, will be paid Rs. 15000/- as fee for assisting this court.

Order Date :-31.7.2017

Pcl

 

 

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