HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

1. Criminal Appeal No.1438 of 2010 AFR

Smt. Rama Devi alias Ramakanti,

wife of Ganesh Shanker Misra,

Resident of Barkot,

Police Station Mohanganj,

District Raebareli.

……….Appellant

Vs.

The State of U.P. …. ….Opposite party

2. Criminal Appeal No.1439 of 2010

Devendra Kumar Misra,

son of late Uma Shanker Misra,

resident of Barkot,

Police Station Mohanganj,

District Raebareli.

……….Appellant

Vs.

The State of U.P. ………Opposite party

Hon’ble Satyendra Singh Chauhan,J.

Hon’ble Anil Kumar Srivastava-II,J.

(Delivered by Hon’Anil Kumar Srivastava-II,J.)

1.Heard Shri Maneesh Kumar Singh, learned counsel for the appellants, Shri Jyotinjay Verma, learned AGA and perused the record.

2.Both these appeals have arisen from the impugned judgment and order dated 12.4.2010 passed by the learned Sessions Judge, Raebareli in Sessions Trial No. 281 of 2006 arising out of case crime no 15 of 2006 under sections 498A,304 B IPC and section ¾ Dowry Prohibition Act, Police station Mohanganj, District Raebareli, whereby the accused Devendra Kumar Misra and Smt. Rama Devi alias Ramakanti were convicted and sentenced under section 302 IPC for life imprisonment and fine of Rs.10,000/- each with default stipulation of one year’s simple imprisonment. Both the accused were acquitted of the charges under sections 498A, 304B IPC and ¾ Dowry Prohibition Act.

3.According to the prosecution version, complainant Ghanshyam Awasthi lodged a first information report on 9.3.2006 at police station Mohanganj, District Raebareli stating that her daughter Pooja was married to accused Devendra Kumar Misra in the month of February, 2005. On 8.3.2006 at about 4.00 p.m., Devendra Kumar Misra, the husband of deceased Pooja, Gudana (Nanad), Rama wife of Ganesh Shanker (Jedhani) caught hold of Pooja and poured kerosene oil upon her and put her to fire. Her daughter Pooja was eight months’ pregnant. Just after the marriage continuously demands of fridge, colour T.V. and Rs.50,000/- cash were being made, but the complainant was not in financial condition to fulfill the demand. Case Crime no. 15 of 2006 under sections 498A, 326 IPC and section ¾ Dowry Prohibition Act was registered at police station Mohanganj, District Raebareli.

4.Investigation was handed over to S.I. Kalpnath Yadav. Victim was admitted to District Hospital, Raebareli wherein her dying declaration was recorded by Naib Tehsildar on 8.3.2006 at 10.42 p.m. after obtaining fitness certificate from the concerned doctor wherein she has specifically stated that her husband and Jedhani (accused) have put her to fire by pouring kerosene oil upon her. She was admitted to hospital by her father. During treatment, deceased succumbed to her burn injuries on 23.3.2006. Inquest proceedings were conducted. Postmortem of the deadbody was done by P.W.3 Dr. Arvind Kumar Srivastava whereupon cause of death was septicemia. Male fetus was also found in the womb of the deceased. After completing investigation, chargesheet was submitted against the accused appellants.

5.Accused were initially charged on 30.10.2006 under sections 304B, 498A IPC and section ¾ Dowry Prohibition Act . Subsequently, charge was altered under section 302 IPC on 29.8.2009. Opportunity of cross examination of witnesses was again given to the accused.

6.Prosecution has produced PW1 Ghanshyam Awasthi, father of the deceased and complainant , P.W.2 Pankaj Kumar Awasthi, brother of the deceased, P.W.3 Dr. Arvind Kumar Srivastava who has conducted postmortem of the deceased along with Dr. Birbal. According to the opinion of the doctor, death of the deceased was caused as a result of septicemia due to antemortem burn injuries. Male fetus which was found in the womb of the deceased, had also died due to burn injuries, P.W.4 Head Constable Prem Narain Misra formal witness, P.W.5 Ashthambhuja Prasad Singh, Deputy Superintendent of Police, investigating officer, P.W.6 Kalpanath Yadav investigating officer of the case under sections 498A and 326 IPC, P.W.7 Deputy Superintendent of Police Sanjay Kumar, investigating officer, P.W.8 Amit Tripathi who has conducted the inquest proceeding and P.W.9 Piyush Kumar Srivastava, Naib Tehsildar who had recorded the dying declaration.

7.In the statement under section 313 CrPC, accused Devendra Kumar Misra has stated that he was not present at his house on the date of incident. When he came back in the evening, he came to know that Pooja herself has put her to fire. His brother Ganesh Shanker had taken her to Simhans Hospital. Accused Rama Devi alias Ramakanti has stated that she was working as Shikshamitra at Primary School, Barcot on th date of incident and when she came at house at about 4.00 p.m., Pooja had told her that she was caught fire at the time of making tea.

8.In defence D.W.1 Ram Naresh Singh, D.W.2 Raj Kumar, D.W.3 Dr. Manish Chauhan, D.W.4 Ashok Kumar Singh, Junior Executive Worker, Sahara Indian Financial Corporation Ltd. Jagdishpur, District Sultanpur and D.W. 5 Dr. Yadindra Nath Tiwari have been produced.

9.Dr. Rajiv Singh was summoned as Court Witness.

10.Learned trial court after appreciating the evidence on record found that prosecution has failed to prove that deceased was burnt for demand of dowry and she was subjected to cruelty or harassment soon before her death in connection with demand of dowry. Accordingly charge under section 304B IPC was not found proved.

11.Learned trial court has placed reliance upon dying declaration of the deceased. Plea of alibi as taken by the accused appellant could not find favour with the learned trial court. It was not accepted.

12. Accordingly, learned trial court recorded finding of guilt against the accused appellants and convicted and sentenced them under section 302 IPC.

13.Feeling aggrieved, instant appeals have been preferred by the accused appellants.

14. Learned counsel for the appellants, initially, pressed the appeals on merit but, during the course of hearing, he pressed the appeal on the point of sentence only and submitted that learned trial court has found the charge under section 304B IPC not proved against the accused appellants. Death was caused due to septicemia, which was the result of burn injuries; that too , after about 15 days of the incident. Male child was found dead in the womb of the deceased. If it was so, then deceased should have been operated upon to save the child, but the same was not done. Accordingly, learned counsel submits that it is not a case wherein appellants should be sentenced under section 302 IPC, rather it could be covered under section 304 part-II IPC.

15.In order to appreciate the submission of the learned counsel for the appellants, it is necessary to have a look over the facts of the case and the evidence adduced by the prosecution. Admittedly, deceased was wife of accused Devendra Kumar Mishra. Accused Rama Devi alias Ramakanti was her Jedhani. It is also admitted that at the time of incident eight months male child was in her womb, who also succumbed in the womb. Learned trial court initially levelled charge under section 304B IPC against the accused, but in the alternative charge under section 302 IPC was also framed wherein an opportunity for cross examination of the witnesses, after framing of the alternative, charge was given to the accused. Learned trial court has recorded the finding that the death was not the result of cruelty just before the death with regard to demand of dowry. Although death occurred within seven years of the marriage, but since it was not for demand of the dowry, hence the learned trial court has disbelieved the theory narrated by P.W.1 Ghanshyam Awasthi, father of the deceased. Theory of demand of dowry was also not accepted by the learned trial court. These findings have not ever been challenged by the prosecution before this Court.

16.There were three dying declarations made by the deceased wherein first dying declaration was made before her father when he reached Barkot and before the deceased was shifted to the District Hospital, Raebareli. Second dying declaration was recorded by P.W.9 Piyush Kumar Srivastava, Naib Tehsildar on 8.3.2006 at 10.42 P.M., while third dying declaration was in the form of a statement recorded by the investigating officer under section 161 Cr.P.C. In all the three time dying declarations, there are different statements given by the deceased. In the first dying declaration which was narrated by P.W.1 Ghanshyam Awasthi, he has exaggerated the prosecution version which was not accepted by the learned trial court rightly. Second statement recorded by the investigating officer under section 161 Cr.P.C. was also not accepted by the learned trial court rightly.

17.Learned trial court has based its finding solely on the dying declaration recorded by P.W.9 Piyush Kumar Srivastava, Naib Tehsildar, which reads as under :-

“eS iwtk feJk iRuh nsosUnz dq0 feJk fu0 ckj dksV] eksguxat ‘kiFkiwoZd c;ku djrh gwW fd esjh tsBkuh o ifr us tyk;k gS] ;g

?kVuk vkt fnukad 08-03-2006 dks ‘kke 04-00 cts gqbZ FkhA yMkbZ Hkh dh Fkh] tks vkt gh gqbZ FkhA esjh tsBkuh dk uke jkek gS] muds ifr dk uke xus’k ‘kadj feJk gSA muds ;gkaW pk; ugha curh vkSj eSa pk; ihuk pkgrh Fkh] blh ckr ij yMkbZ gqbZ vkSj esjh tsBkuh o ifr us eqs vkx yxk nhA mUgksaus eq ij feV~Vh dk rsy Mkydj tyk fn;kA ml le; esjh lkl Hkh ?kj es FkhA ysfdu mlus u rks eqs tyk;k vkSj u gh eqs cpk;kA eSus vius firk o ekrk dks Qksu djds cqyk;k] rc esjs firk vkfn gh eqs ;gkaW ysdj vk;s] vkneh ugha yk;sA eqs bl izdkj esjs ifr o tsBkuh ls f’kdk;r gSA esjh mez yxHkx 23 o”kZ o ‘kknh dks yxHkx 2 lky gks x;s gSA

c;ku lqudj rLnhd fd;kA**

18.In the aforesaid dying declaration specific allegations have been levelled against the accused appellants that in a spur of moment, the deceased was burnt to death. There was some altercation for making tea. Thereafter the accused appellants poured the kerosene oil upon the deceased and put her on fire. The dying declaration was recorded after obtaining a certificate of fit mental state mind of the deceased by Dr. Rajiv Singh, who was examined as C.W.1. Neither Piyush Kumar Srivastava, Naib Tehsildar nor Dr. Rajiv Singh had any animus against the accused appellants. Dying declaration itself could have been made the sole basis for conviction as has been held by Hon’ble the Apex Court in Banarsi Dass and others Vs. State of Haryana (2014) 15 SCC 485 . It was held in para 17, which is reproduced hereinbelow:-

” A bare analysis of the provision, for the purpose of the case at hand, would show that a statement by a person made before his death to be relevant, the following ingredients are to be satisfied:

(i) The statement is made by a person who is conscious and believes or apprehends that death is imminent.

(ii) The statement must pertain to what the person believes to be the cause or circumstances of death.

(iii) What is recorded must be the statement made by the person concerned, since it is an exception to the rule of hearsay evidence.

(iv) The statement must be confidence bearing, truthful and credible as held by this Court in Laxman v. State of Mahrashtra (2002) 6 SCC 710 and followed including the very recent one in Mallella Shyamsunder v. State of A.P. (2015) 2 SCC 486.

(v) The statement should not be one made on tutoring or prompting.

(vi) The court may also scan the statement to see whether the same is prompted by any motive of vengeance.”

It was further held in Najjam Faraghi v. State of W.B (1998) 2 SCC 45 that merely because a person died long after making the dying declaration, the statement does not become irrelevant. In the said case, incident took place on 29.6.1985 and death was done on 31.7.1985. It was also a case of burn injuries, but Hon’ble the Apex Court has placed reliance upon the dying declaration.

19.In Mukesh V. State (NCT of Delhi) (2017) 6 SCC 1 a three judges bench judgment of Hon’ble the Apex Court after placing reliance upon Atbir v. Govt. (NCT of Delhi) (2010) 9 SCC 1, Paniben v. State of Gujrat (1992) 2 SCC 474 and Panneerselvam V. State of T.N. (2008) 17 SCC 190 has held in paras 176 and 177 as under:-

“176. The legal position regarding the admissibility of a dying declaration is settled by this Court in several judgments. This Court in Atbir v. Govt. (NCT of Delhi), taking into consideration the earlier judgment of this Court in Paniben v. State of Gujrat and another judgment of this Court in Panneerselvam v. State of T.N., has exhaustively laid down the following guidelines with respect to the admissibility of dying declaration: (Atbir case, SCC pp. 8-9, para 22).

” 22. (i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court.

(ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination.

(iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration.

(iv) It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence.

(v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence.

(vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction.

(vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected.

(vii) Even if it is a brief statement, it is not to be discarded.

(ix) When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail.

(x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.

177. It is well settled that dying declaration can form the sole basis of conviction provided that it is free from infirmities and satisfies various other tests. In a case where there are more than one dying declaration, if some inconsistencies are noticed between one and the other, the court has to examine the nature of inconsistencies as to whether they are material or not. The court has to examine the contents of the dying declarations in the light of the various surrounding facts and circumstances.”

20.Dying declaration was recorded by P.W. 9 Piyush Kumar Srivastava, Naib Tehsildar on 8.3.2006 at 10.42 P.M., while the deceased was admitted to hospital. Dying declaration was recorded after obtaining the certificate from Dr. Rajiv Singh about her mental and physical fitness to give the evidence. There was no-one who could have tutored or prompted the deceased to make the statement. Dying declaration of the deceased was wholly reliable and voluntary. There was not an iota of evidence which could have raised any suspicion about the genuineness of the dying declaration recorded by P.W.9 Piyush Kumar Srivastava, Naib Tehildar after obtaining the necessary certificate of the doctor. This finds support from the fact that deceased was in fit state of mind and succumbed to burn injuries on 22.3.2006, hence there was no need for any corroboration.

21.Learned trial court has rightly placed reliance and accepted the dying declaration recorded by P.W.9 Piyush Kumar Srivastava, Naib Tehsildar.

22.Another limb of the argument is on the point of sentence. Learned counsel for the appellants submits that it is a case wherein incident occurred on 8.3.2006 while the deceased died on 23.3.2006 i.e. after fifteen days. Postmortem was conducted by P.W.3 Dr. Arvind Kumar Srivastava, who opined that the death of the deceased was caused as a result of septicemia due to antimortem burn injuries. Learned counsel submits that the death occurred after fifteen days of the incident. There was no intention to cause culpable homicide, although it can be said that the appellants were possessing knowledge that pouring of kerosene oil and putting the deceased on fire is likely to cause death, which is a case, which is covered under section 304 Part II IPC.

23.In Bengai Mandal alias Begai Mandal Vs. State of Bihar (2010) 2 SCC 91 incident occurred on 14.7.1996, while the deceased died on 10.8.1996 due to septicemia caused by burn injuries. The accused was convicted and sentenced for life imprisonment under section 302 IPC, which was confirmed in appeal by the High Court, but Hon’ble the Apex Court converted the case under section 304 Part II IPC on the ground that the death ensued after twenty six days of the incident as a result of septicemia and not as a consequence of burn injuries and accordingly sentenced for seven years’ rigorous imprisonment.

24.In Maniben Vs. State of Gujrat (2009) 8 SCC 796, the incident took place on 29.11.1984. The deceased died on 7.12.1984. Cause of death was the burn injuries. The deceased was admitted in the hospital with about 60 per cent burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. Trial court convicted the accused under section 304 Part II IPC and sentenced for five years’ imprisonment but in appeal high court convicted the appellant under section 302 IPC. Hon’ble the Apex Court has held that during the aforesaid period of eight days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. Accordingly judgment and order convicting the accused under section 304 Part II IPC by the trial court was maintained and the judgment of the High Court was set aside.

25. In Chirra Shivraj Vs. State of Andhra Pradesh (2010) 14 SCC 444, incident took place on 21.4.1999. Deceased died on 1.8.1999. As per the prosecution version, kerosene oil was poured upon the deceased who succumbed to the injuries. Cause of death was septicemia. Accused was convicted under section 304 Part II IPC and sentenced for five years’ simple imprisonment which was confirmed by the High Court. Hon’ble the Apex Court dismissed the appeal holding that the deceased suffered from septicemia which was caused due to burn injuries and as a result thereof she expired on 1.8.1999.

26.Dying declaration was recorded by P.W. 9 Piyush Kumar Srivastava, Naib Tehsildar on 8.3.2006 at 10.42 P.M , while the deceased was admitted to hospital. Dying declaration was recorded after obtaining the certificate from Dr. Rajiv Singh about her mental and physical fitness to give the evidence. There was no-one, who could have tutored or prompted the deceased to make the statement. Dying declaration of the deceased was wholly reliable and voluntary. There was not an iota of evidence which could have raised any suspicion about the genuineness of the dying declaration recorded by P.W.9 Piyush Kumar Srivastava, Naib Tehildar after obtaining the necessary certificate from the doctor. This finds support from the fact that deceased was in a fit state of mind and succumbed to burn injuries on 22.3.2006, hence, there was no need for any corroboration.

27.In the present case, death of the deceased was due to septicemia as a result of burn injuries. Deceased died after fifteen days of the incident. Since the accused appellants could be said to be of possessing knowledge that pouring of kerosene oil and putting the deceased on fire is likely to cause death of the deceased, a case under section 304 Part II IPC is made out.

28.In the dying declaration deceased has stated that the quarrel started on making of tea.

29.From the aforesaid statement on record , it cannot be said that the appellants had the intention that such action on their part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the cause cannot be said to be covered under clause (4) of Section 300 IPC. We are, however, of the considered opinion that the case of the appellants is covered under section 304 Part II IPC.

30.Accordingly, appeals deserve to be partly allowed. Appeals are partly allowed. Conviction of accused appellants under section 302 IPC is altered into section 304 Part II IPC . Accused appellants are sentenced for five years’ rigorous imprisonment and to a fine of Rs. 20,000/- each. In default of payment of fine, the accused appellants shall undergo simple imprisonment for six months. Accused appellant Rama Devi alias Ramakanti is on bail. Period already undergone by her in this case shall be computed in accordance with law. Accused appellant Devendra Kumar Mishra is in jail. Period already undergone by him in this case shall be computed in accordance with law. Fine shall be deposited within a period of eight weeks from today.

31.Let a copy of this judgment alongwith the lower court record be sent to the learned trial court forthwith by the office to ensure the compliance of this judgment.

32.Learned trial court shall send the compliance report within eight weeks.

Order Date: 7.10.2017

GSY

[ Justice Anil Kumar Srivastava-II.] [ Justice Satyendra Singh Chauhan ]

Judgment delivered under Chapter VII Rule 1 (2) of Rules of the Court.

(Justice Anil Kumar Srivastava-II)

Order Date: 07.10.2017

GSY/-