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Pappu vs The State Of U.P. on 16 March, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

Reserved

Court No. – 31

Case :- CRIMINAL APPEAL No. – 1885 of 2003

Appellant :- Pappu

Respondent :- The State Of U.P.

Counsel for Appellant :- Atul Verma

Counsel for Respondent :- Govt.Advocate

Hon’ble Dinesh Kumar Singh,J.

1. The present appeal arises out of the judgment and order dated 26.09.2003 passed by the Additional Sessions Judge, FTC-V, Lucknow in Sessions Trial No.25 of 2001. The learned Trial Court vide impugned judgment and order has convicted the accused appellant under Sections 498A and 304B I.P.C.

2. The accused-appellant, Pappu was sentenced under Section 498-A I.P.C. to undergo 2 years rigorous imprisonment with fine of Rs.2,000/- and in the event of non-payment of fine two months additional rigorous imprisonment and under Section 304B I.P.C. to undergo 10 years rigorous imprisonment. It was directed that both the sentences would run concurrently.

3. The prosecution story, as emerges from the record, is that on 24.05.2000 the complainant, Mahesh, P.W.1, gave a written complaint, Exh. Ka-1, at Police Station alleging that the marriage of his sister Prema, the deceased, was performed with the accused-appellant, Pappu 3-4 years before. The accused had killed his sister in the intervening night of 23/24.05.2000 by setting her on fire for not bringing sufficient dowry. It was alleged that two days before the date of incident, the accused-appellant came to the complainant’s house and demanded Rs. 20,000/- on the ground that the complainant side did not give enough dowry at the time of marriage. It was alleged that the family members assured the accused-appellant that they had bought a mango grove and after the crop come, they would give Rs.5,000/- to him and they would not give any more money thereafter. The accused-appellant warned that if he did not get the money within 3-4 days he would kill the deceased by putting her ablaze and, thereafter, he would see the complainant side as well.

4. P.W.1 said that on that day i.e. 24.05.2000, his nephew came and informed that Prema was done to death by the accused and his family members. The accused were named as Pappu s/o Munna, Shankar s/o Munna, Sushila w/o Shankar, Sheela w/o Durjan and Gangadei w/o Munna.

5. On the basis of the aforesaid complaint, F.I.R. at Case Crime No.138 of 2000 under Sections 498A, 304B I.P.C. was registered at Police Station Thakurganj, District Lucknow against the accused-appellant and others. The inquest was prepared on the same day i.e. 24.05.2007, Exh.Ka-2, and in the opinion of the inquest witnesses, death was caused due to the burn injuries and the deceased died while receiving treatment for her injuries in the Medical College. The post mortem was conducted by Dr. P.C. Bhartiya who prepared the postmortem report, Exh. Ka-3. Death was found to be on account of shock as a result of antemortem acute burn injuries. The case was investigated by Shri Jung Bahadur, P.W.-8, the Circle Officer, who prepared the site plan and other documents and submitted the charge-sheet. The prosecution to prove its case examined following witnesses:- Mahesh as P.W.-1, Suresh as P.W.-2, Smt. Sonawati w/o Mahesh as P.W.-3, Ramu as P.W.-4, Dr. P.C. Bhartiya as P.W.-5, O.P. Pathak as P.W.6, Head Constable Lekhraj, P.W.-7, Jungbahadur Singh as P.W.-8.

6. The accused in their statement under Section 313 Cr.P.C. denied that they were demanding money and said that the witnesses had falsely deposed against them. Defence also examined three witnesses i.e. D.W.-1 Ramswaroop, D.W.-2 Shyamlal, D.W.-3 Dr. Umesh Kumar. They also produced the documents i.e. admission of the deceased in the Gandhi Memorial and Associated Hospital, Lucknow on 24.05.2000 i.e. the day she died in the Surgery Department of the aforesaid hospital.

7. The Sessions Judge, Lucknow called for the record from the hospital regarding the deceased admission in the hospital and death forms etc., which were marked as Paper Nos.1 to 14.

8. It was an admitted case that the marriage of the deceased and accused-appellant, Pappu, was performed in accordance with Hindu rites and rituals and on 24.5.2000 at 3:30 A.M. she died. The prosecution case is that the accused-appellant, Pappu demanded Rs.20,000/- and for not fulfilling that demand, she was murdered by putting her on fire whereas the defence case was that there was no demand of dowry in the marriage nor did they give any threat of murdering the deceased by putting her on fire. The deceased could not conceive and no child was born out of wedlock, for that reason she used to be depressed and committed suicide.

9. It is also an admitted case from both sides that deceased, Prema was admitted in the Surgery Department of the Gandhi Memorial and Associated Hospital, Lucknow on 24.5.2000. She received 100% burn injuries. Dr. Umesh Kumar, D.W.-3, in his statement had said that deceased, Prema was admitted in the hospital on 23.5.2000 at 12:35 night. She was given conservative treatment and her statement was also recorded. He proved the statement, Exh.Kha-1, given by the deceased which was recorded by him. He deposed that Prema was in a position to give the statement. During his cross examination he said that it was not true that after giving the statement the deceased would not have been in a position to speak. He further said that even after receiving 100% burn injuries, a patient could be in a position to make/give statement. The condition of a patient can be determined from degree and percentage of burn injuries. He said that the patient was in a position to give statement before the statement was recorded and thereafter also. He also got the thumb impression of the patient which was proved by this witness.

10. Thus, it is clearly proved that Dr. Umesh Kumar, D.W.-3 took the statement of the deceased in her full senses and in medical condition where she could have given the statement. In her statement, the deceased said ” I, Prema in my full senses make the statement that after pouring kerosene oil, I put myself on fire. No one else was present in house when I put on the fire. The reason for setting myself on fire was the daily quarrel with the husband”. This statement was recorded on 24.05.2000 at 1:10 A.M. by Dr. Umesh Kumar, D.W.-3 and, thereafter, she died on the same day i.e. 24.05.2000 at 3:30 A.M.

11. Since the deceased was in a mental condition to record her statement when she gave the statement, this statement is to be treated as dying declaration under Section 32 of the Evidence Act, 1872. In her statement, the deceased did not say that she was tortured or subjected to cruelty for dowry demand by her husband or his relatives and for that reason she decided to end her life. Rather she made the statement that she decided to end her life for daily quarrel with the husband.

12. P.W.-1, Mahesh, brother of the deceased, however, in his statement said that the accused demanded Rs.20,000/- and threatened that if he did not receive the said amount, he would murder the deceased by putting her on fire does not get any support from the dying declaration of the deceased. Suneel, son of his elder sister came and informed him and other family members that the accused and his family members had committed murder of the deceased by putting her on fire but Suneel was not examined as witness. P.W.-1’s evidence cannot be said to be evidence of fact as he gave the evidence on the basis of hearsay and Suneel who, allegedly, informed him regarding the incident was not examined as a witness. There is no reason to disbelieve the dying declaration of the deceased inasmuch as there was no suggestion put by the prosecution to Dr. Umesh Kumar, D.W.-3 that he did not record the deceased’s statement properly or the deceased was under some influence when he recorded her statement.

13. After considering the evidence on record and the arguments advanced by the parties, the Trial Court acquitted the accused, Smt. Sushila (bhabhi of the accused-appellant), Smt. Sheela (sister of the accused-appellant), Gangadei (mother of the accused-appellant) and only convicted the accused-appellant, Pappu under Sections 498A, 304B and sentenced him as mentioned in the preceding paragraphs.

14. Heard learned counsel for the accused-appellant, Mr. Atul Verma and learned AGA for the State.

15. Dying declaration does not support the evidence of P.Ws. 1 to 4. The defence also produced Exh.Kha-3, Paper Serial Nos. 1 to 15. Their authenticity was accepted by ADG (Criminal). From these documents, it is evident that the deceased, Prema was earlier admitted in the Gynecological Department of Gandhi Memorial and Associated Hospital, Lucknow on 25.09.1996 by the accused-appellant, Pappu and she was discharged after a month. In the aforesaid hospital vaginoplasty was done on the deceased and it was found that she did not have uterus and her vaginal canal was not proper.

16. It is also not in dispute that the deceased got married with the accused four years before the date of incident and no issue was born out of wedlock. She was admitted in the hospital from 25.09.1996 to 26.10.1996 as is evident from Exh. Kha-3. D.W.-3 also recorded the statement of Ramswaroop who accompanied the deceased in the hospital in the night of 24-25.5.2000.

17. Dr. Umesh Kumar, D.W.-3 recorded the statement of Ramswaroop on 23-24.05.2000 at 1:00 A.M. and in his statement he said ” I, Ramswaroop give the statement that patient, Prema was found burning at 12:15 AM on 23.05.2000. This incident is of her house. We have brought the patient directly from the hospital to the Medical College and some of her clothes were also changed.” Ramswaroop in his statement said that on 23.05.2000 he came back in the night at his house after pulling rickshaw. He was a rickshaw puller. The incident happened at 11:30 P.M. On that time he was having his dinner at his house. His house and Pappu’s house were facing each other.

18. Sheela and her mother raised alarm by saying “save, save”. When she raised alarm people from the neighbourhood got collected including Munna, Dalai and Mahaveer. They saw that smoke was coming out from the house of Pappu. People said that they opened the door and found Prema engulfed in fire. A blanket was put on her and the fire was extinguished. Sheela and her mother got the clothes of the deceased changed. Sheela alongwith her mother accompanied the deceased to the hospital.

19. At the time of incident the accused, Pappu was not present at the house. Pappu was an electrician. It was marriage season, therefore, he was not present at the house as he had gone to some other village to attend the electricity supply etc., in a marriage. After receiving the information he reached the hospital. When Prema died he was present near her. When prosecution witnesses reached the hospital by that time Prema had already died. The statement of D.W.-1 is very clear, unambiguous and unimpeachable and there is no reason to disbelieve the same. Nothing has come on record during his cross examination to disbelieve this witness.

20. D.W.-2, in his statement also said that the accused-appellant, Pappu was an electrician and he was present in some other village for electricity work as this was marriage season and he was not present at the place of incident. The Trial Court did not find anything to disbelieve the statement of D.W.-1, D.W.-2 and D.W.-3.

21. From the evidence on record, it is clear that the deceased herself pour kerosene oil on her and put the fire on and committed suicide.

22. The question which needs to be considered is that when the prosecution case is at variance with the dying declaration and dying declaration does not suffer from any infirmity, whether the accused-appellant should be convicted for the offence under Section 304B IPC. It is evident from the perusal of the dying declaration that the deceased did not make any allegation against the accused for torturing her or subjecting her to cruelty for dowry demand. The statement of P.Ws-1 to 4 are not convincing and it appears that Prema committed suicide not for torture or cruelty committed on her for dowry demand but for daily quarrel with her husband and maybe for her being unable to bear a child.

23. It is established law that dying declaration is substantive piece of evidence and even it can form the sole basis of conviction if it is found reliable. The Supreme Court in the case of Ramesh and others vs State of Haryana :(2017) 1 SCC 529 in Paras 31, 32 has held as under:-

“31. Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State of N.C.T., Delhi[3], this Court explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be reliable. 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 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 or weak, and can be acted upon without corroboration if it is found to be otherwise true and reliable. There is no hard and fast rule of universal application as to whether percentage of burns suffered is determinative factor to affect credibility of dying declaration and improbability of its recording. Much depends upon the nature of the burn, part of the body affected by the burn, impact of the burn on the faculties to think and convey the idea or facts coming to mind and other relevant factors. Percentage of burns alone would not determine the probability or otherwise of making dying declaration. Physical state or injuries on the declarant do not by themselves become determinative of mental fitness of the declarant to make the statement (See Rambai v. State of Chhatisgarh).

32. It is immaterial to whom the declaration is made. The declaration may be made to a Magistrate, to a Police Officer, a public servant or a private person. It may be made before the doctor; indeed, he would be the best person to opine about the fitness of the dying man to make the statement, and to record the statement, where he found that life was fast ebbing out of the dying man and there was no time to call the Police or the Magistrate. In such a situation the Doctor would be justified, rather duty bound, to record the dying declaration of the dying man. At the same time, it also needs to be emphasised that in the instant case, dying declaration is recorded by a competent Magistrate who was having no animus with the accused persons. As held in Kushal Rao v. State of Bombay[5], this kind of dying declaration would stand on a much higher footing. After all, a competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in the absence of circumstances showing anything to the contrary, he should not be disbelieved by the Court (See Vikas Ors. v. State of Maharashtra).”

24. In the present case there is no doubt that the victim was brought with 100% burn injuries to the hospital. The doctor found that she was in a conscious state of mind and was competent to give her statement and doctor himself recorded her statement. Therefore, dying declaration in this case given by the deceased cannot be discarded merely going by the extent of burn injuries with which she was suffering.

25. Dying declaration under Section 32 of the Evidence Act 1872 is an exception to the general rule against hearsay. Sub-section 1 of Section 32 makes the statement of the deceased admissible and it is described as “dying declaration”. The dying declaration essentially means a statement made by the person as to the cause of his death or as to any of the circumstances or the transactions which result in his death. The admissibility of the dying declaration rests upon the principle that a sense of impending death produces in a man’s mind the same feeling as that of a conscientious and virtuous man under oath. The dying declaration is admissible upon consideration that the declarant has made it extremity, when the maker is at the point of death and when every hope of the world is gone, every motive to the falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. If the court finds that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant and the dying declaration was true and voluntary, therefore, the conviction can be based solely on the dying declaration without any further collaboration.

26. In the present case it needs to be decided whether the Trial Court was right in convicting the accused-appellant under Section 498-A IPC. From the evidence of the P.Ws.1 to 4, it is clear that the allegation of demand of Rs.20,000/- may be said to be proved but there is nothing on record to suggest that the deceased was subjected to harassment in connection with the demand of dowry by the accused-appellant. If the accused-appellant did not cause any harassment or subjected her to cruelty for dowry demand, the offence under Section 498A IPC is not proved and, therefore, I am of the considered opinion that the accused-appellant is to be acquitted of the offence under Section 498A IPC.

27. The next question that needs to be decided is whether the Sessions Court is right in upholding the accused-appellant guilty under Section 304B I.P.C. Section 304B of the I.P.C. and Section 113B of the Evidence Act, 1872 are to be read together which read as under:-

“”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 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.”

“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 has 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).””

28. From the bare perusal of Section 304B IPC, it is clear that whether the death of a married woman is caused by any burn or bodily injury within 7 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 husband for or in connection with, any demand for dowry, such husband and/or relative shall be deemed to have caused dowry death. These two facts are necessary to be established by the prosecution to bring home charge of dowry death under section 304 IPC i.e. (i) the death has taken place within 7 years of marriage, and (ii) soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband and/ or in connection with any demand of dowry. If any of these two ingredients is not established by the prosecution, the accused-appellant cannot be convicted under Section 304B IPC. The deeming aspect of Section 304B IPC does not create a legal fiction but only creates a presumption of causing dowry death.

29. Section 113B of Evidence Act also provides that once it is shown that soon before her death a woman was subjected by husband or relative of husband to cruelty in connection with any demand of dowry, the Court shall presume that such person has caused dowry death. In the present case, the deceased in her dying declaration which has been found to be true, has not implicated the husband for any dowry demand even the P.W.-1 has only made allegation that a threat was given to put the deceased on fire by the accused for not giving him Rs.20,000/- but there was no allegation that she was subjected to cruelty or harassment for dowry demand. Therefore, the accused-appellant cannot be held guilty for offence under Section 304B I.P.C.

30. I, therefore, do not find that the prosecution has been able to prove the case against the accused-appellant beyond reasonable doubt. I set aside his conviction. His bail bonds are cancelled and sureties are discharged.

31. The appeal is thus allowed.

Order Date:-16.03.2018

Prateek

 

 

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