Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 11 of 2005 1. Km. Sudha (since deceased) 2. Smt. Rajini ...…………. Appellants versus State of Uttarakhand ...…………. Respondent Mr. Sandeep Tandon, Advocate for the appellant No. 2. Mr. Amit Bhatt, Addl. Government Advocate, for the State. along with Criminal Appeal No. 12 of 2005 S udhir ....…………. Appellant versus State of Uttarakhand ...…………. Respondent Mr. Lokendra Dobhal, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State. 2 JUDGMENT Coram : Hon’ble Tarun Agarwala, A.C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J. These two appeals, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), are directed against the common judgment and order dated 17.01.2005, passed by Addl. Sessions Judge / V F.T.C., Dehradun, in S.T. No. 16 of 2001, whereby appellants Sudhir, Km. Sudha and Smt. Rajini have been convicted under Section 302 and 498-A of the Indian Penal Code, 1860 (for short I.P.C.). All of them have been sentenced to undergo imprisonment for life and directed to pay a fine of ` 5,000/- under Section 302 of I.P.C. and rigorous imprisonment for a period of two years and directed to pay a fine of ` 2,000/- under Section 498-A of I.P.C. During the pendency of this appeal, accused / appellant Km. Sudha is reported to have died, and appeal filed on her behalf stands abated. 2. Heard learned counsel for the appellants and learned Addl. Government Advocate for the State and perused the lower court record. 3. Prosecution case, in brief, is that on 20.11.2000, at 05:30 P.M., P.W.9 Raghubir Singh (father of the deceased) lodged first information report (Ext. Ka-19) with reporting outpost Rani Phokri, police station Rishikesh stating therein 3 that her daughter Sushila Devi got married to accused / appellant Sudhir about two year ago. After her marriage with Sudhir she started living with her husband and in-laws in village Ghamandpur, police station Rishikesh, District Dehradun. After seven months of her marriage when she came back to her parental house, Sushila Devi told her father P.W.9 Raghubir Singh that she was being subjected to cruelty by her husband, brother-in-law (jeth) and sister- in-law (nanad) for not bringing a colour television and a vikram (three-wheeler) in dowry, which according to the father of the deceased he was unable to fulfill. On this, the three used to harass Sushila Devi (deceased) for non- fulfillment of demand of dowry and commit maarpeet with her. In this background, on 19.11.2000, at about 09:00 P.M., Sudhir (husband of the deceased) set Sushila Devi on fire by pouring petrol on her. Bijendra Singh and Sudha were also present with Sudhir in this gruesome act. It is also stated that at present her daughter is in the hospital in an injured state and is being treated there. On the basis of said report, the police prepared chick report (Ext. Ka-11) and registered Crime No. 55 of 2000 against the accused / appellants Sudhir, his brother Bijendra and sister Sudha, relating to offences punishable under Section 498-A of I.P.C., and one punishable under Section 3/4 of the Dowry Prohibition Act. Later on name of Smt. Rajini (jethani) w/o Bijendra Singh was also introduced as an accused. On 19.11.2000 itself, the victim was admitted in Doon Hospital, Dehradun by her husband where she was examined by P.W.5 Dr. R.K. Singh on 20.11.2000, at 12:15 A.M. The Doctor found superficial deep burns on the 4 whole body except both soles on the person of Sushila Devi. The Medical Officer opined that the injuries could have been sustained by dry heat. On 21.11.2000 she was referred to Govt. Medical College Hospital, Chandigarh for further treatment. On 24.11.2000, at 09:00 P.M., Sushila Devi died at Chandigarh during her treatment. A report (Ext. Ka-5) was prepared regarding her death. 4. Before the death of Sushila Devi, her dying declaration was recorded by P.W.6 Pushvinder Singh, PCS, Judicial Magistrate (Duty) Chandigarh on 24.11.2000. The dying declaration (Ext. Ka-15) is in question-answer form. Sushila Devi was asked the following questions and she replied in the manner indicated therein: Q. When did you marry? A. About two years ago. Q. How many children you have? A. I have got a baby child, aged 2 months. Q. How many brothers and sisters are you? A. We are two brothers and two sisters. Q. Where is your parental house? A. Village Baruwala, Bhaniyawala. The above questions were asked from Sushila Devi to ascertain that she is fully conscious and is making the statement on her own volition. Q. How did this occurrence take place? A. I was cooking meals at residence on 19.11.2000, at 10:30 P.M. My husband Sudhir, sister-in-law Sudha (nanad), sister-in-law 5 Rajini (jethani) and brother-in-law Bijendra (jeth) caught hold of me. Sudhir poured petrol and lighted the match and put me on fire. At that time my second sister-in-law Santoshi (jethani) was also at home. She was not involved in setting her on fire. My second brother-in-law Sansaar (jeth) resides in our neighbourhood. He saved me. Sansaar and my husband Sudhir took me to hospsital. My husband had consumed liquor at the time of incident. He used to beat me after taking liquor. All the persons used to say that my father did not give tempo in marriage. Q. Have you got to say anything else? A. No. The statement was read over to the deponent, who verified this to be correct. sd/- Pushvinder Singh, PCS Judicial Magistrate (Duty) Chandigarh. 24.11.2000 After obtaining opinion of Dr. S. Sinha, I recorded the statement of Sushila, who was fully conscious. I am satisfied that she made the statement voluntarily which was read over and explained to her and she admitted the same to be correct. sd/- Pushvinder Singh, PCS Judicial Magistrate (Duty) Chandigarh. 24.11.2000 6 In the meantime, Investigating Officer P.W. 10 S.I. Vivekanand Tiwari took up the investigation. After death of Sushila Devi, the case was converted into one punishable under Section 304-B of I.P.C. All the accused were arrested by the police. Investigating Officer also prepared site plan of the place of incident (Ext. Ka-5), recovery memo (Ext. Ka-18) regarding taking into possession one sari, one sweater, slippers, one matchbox and one bottle (smell of petrol emanating from it), (Ext. Ka-19), inquest report (Ext. Ka-27), and letter (Ext. Ka-26) to C.M.S, Chandigarh requesting for postmortem examination. Post mortem examination on the dead body of deceased was conducted by Dr. Rakhi Aulakh of Govt. Medical College, Chandigarh on 26.11.2000 at 10:00 A.M. The Medical Officer opined that deceased has died of shock due to burn injuries and their complications. She is also of the opinion that the burns described are ante mortem in nature and sufficient to cause death in due course of time. On completion of investigation, the subsequent Investigation Officer P.W.11 K.K. Gautam, Dy.S.P., Rishikesh submitted charge sheet (Ext. ka-32) against the four accused namely, Sudhir, Km. Sudha, Smt. Rajini and Bijendra Singh for their trial in respect of offences punishable under Section 498-A, 304B of I.P.C., and one punishable under Section 3/4 of the Dowry Prohibition Act. It is pertinent to mention here that accused Bijendra Singh died during trial and case as against him stood abated. 5. The Magistrate, on receipt of charge sheet, after giving necessary copies to the accused, as required under 7 Section 207 of Cr.P.C., committed the case to the court of Sessions for trial. Learned Sessions Judge, Dehradun, after hearing the parties, on 28.04.2001, framed charge of offences punishable under Section 304-B and 498-A of I.P.C., and one punishable under Section 3 /4 of the Dowry Prohibition Act, against accused Sudhir, Rajini and Km. Sudha. In alternative, charges were framed against these three accused for the offence punishable under Section 302 read with Section 34 of I.P.C. All the accused / appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Bachan Singh (uncle of the deceased); P.W.2 Dr. Rakshi Aulakh ( who conducted the postmortem examination); P.W.3 Robin Kaushik; P.W.4 H.C. Srikrishna Gupta (who prepared the chick report of the first information report); P.W.5 Dr. R.K. Singh (who examined the victim in the Doon Hospital); P.W.6 Pushvinder Singh (Magistrate who recorded the dying declaration); P.W.7 Smt. Neelam Bhandari (married Jethani of the deceased); P.W.8 Satya Pal (brother of the deceased); P.W.9 Raghubir Singh (complainant and father of the deceased); P.W.10 S.I.Vivekanand Tiwari (who started the investigation) and P.W.11 Dy.S.P. K.K. Gautam (who submitted charge sheet). The oral and documentary evidence was put to the accused / appellants under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. Accused / appellant Sudhir has stated in his statement recorded under Section 313 of Cr.P.C. that he tried to save his wife and also donated his blood. In defence D.W.1 Rajesh Kumar, D.W.2 Roshan Singh, D.W.3 Sumit Kumar and D.W.4 Sanjay Sharma were 8 produced. After hearing the parties, the trial court found all the three accused namely, Sudhir, Km. Sudha and Smt. Rajini guilty of the charge of offences punishable under Section 302 and 498-A of I.P.C. After hearing on sentence, each one of the convicts was sentenced to imprisonment for life and directed to pay fine of ` 5,000/- under Section 302 of I.P.C., and rigorous imprisonment for a period of two years and directed to pay fine of ` 2,000/- under Section 498-A of I.P.C. Aggrieved by said judgment and order dated 17.01.2005, both these appeals are preferred by the convicts. 6. Before further discussion, we think it just and proper to mention here the ante mortem injuries and the condition of the dead body of Sushila Devi found by Dr. Rakhi Aulakh, who conducted the autopsy on 26.11.2000, at 10:00 A.M., and prepared the autopsy report (Ext. Ka-1): Whole of body covered with superficial to deep burns except the left shoulder. Fluid filled blisters present at places, greenish yellow slough seen at places. At places there is present pinkish granulation tissue, singeing of eyebrows, eyelashes and scalp hair present. The Medical Officer recorded in the autopsy report that rigor mortis was absent. It is also recorded that postmortem staining cannot be appreciated because of burns. In the opinion of the Medical Officer the cause of death was shock due to burn injuries and their complications. The Medical Officer also opined that the 9 burns described are ante mortem in nature and sufficient to cause death in due course of time. 7. P.W.1 Bachan Singh states that they are four brothers, namely Khushal Singh, Raghubir Singh, he himself and Jot Singh. They are residing in different houses at the same place. The eldest one Khushal Singh is hard of hearing and has a poor vision. All the brothers got the marriage of Raghubir Singh’s daughter Sushila on 07.03.1999 with Sudhir, s/o Chander Singh, resident of village Ghamandpur, police station Rishikesh. Sushila’s brother-in-law Bijendra (jeth), sister-in-law Sudha (nanad) and another sister-in-law Rajini (jethani) used to reside together in Sudhir’s house. Bijendra has died and hence case against him stood abated. Sushila told this witness P.W.1 Bachan Singh that within seven months of marriage, her in-laws started harassing her for dowry. They demanded television and vikram (tempo) in dowry. Sudhir was tempo driver before marriage. They used to beat Sushila and hurled abuses at her. On this, this witness and Sushila’s parents went to her matrimonial home at Ghamandpur and had talks with her in-laws. They expressed their inability to fulfill the demand of dowry and submitted that they cannot provide colour television and vikram (tempo). They also requested one of the brothers of Sudhir named Sansaar Singh, who happened to be the village Pradhan to prevail over Sudhir. Sansaar, in turn, gave the assurance that he will try his best. According to P.W.1 Bachan Singh the occurrence took place on 19.11.2000. He had been to Chandigarh on 10 19.11.2000. His brother Raghubir have been to Lakshman Jhula on 16.11.2000. He received a telephone call by his neighbour Surendra Singh that Sushila has been burnt by her in-laws. This witness immediately rushed to Doon Hospital on 20.11.2000. Sushila was admitted there in serious condition. When enquired from Sushila, she replied that had you given colour television and vikram to her in- laws, they would not have done so. She told that she was caught hold by Bijendra (since deceased), Rajini and Sudha (since deceased). Sudhir poured petrol on her and set her on fire. This witness took the victim Sushila to PGI Chandigarh, where on 24.11.2000, she breathed her last. The Magistrate took her statement. His brother (Raghubir) was informed about this. This witness was subjected to cross-examination on behalf of the accused / appellants. He said that Sushila was admitted in Doon Hospital on 19.11.2000. On 21.11.2000, she was taken to Chandigarh. Her statement was not taken before the Magistrate at Dehradun. She was admitted at Chandigarh on 21.11.2000. On 23.11.2000, in the evening, the doctor had send the information relating to recording of dying declaration to police station Rishikesh. The statement of this witness was taken by the Investigating Officer after Sushila’s death took place. He is also a witness of preparation of inquest report (Ext. Ka-27). This witness has denied that Sushila and Sudhir started living separately before this occurrence took place, and also the fact that on 30.02.1999, a compromise between Bijendra and Sudhir took place in his presence whereby they agreed to live separately. But this witness clarified that this arrangement was confined to the papers 11 only (perhaps Bijendra and Rajini had sensed what was in store for them) and they used to live together. P.W.1 Bachan Singh told that he had visited Sushila’s matrimonial home after one month of her marriage, but Sushila did not complain about the dowry demand then. Sudhir and Bijendra used to live together, whereas Sansaar Singh is residing separately. It is significant to note that when Sushila was set on fire, this witness met her at 12 o’clock. At that time she was conscious. She remained conscious so long as she was in Doon Hospital. This witness went to Chandigarh on 24.11.2000. Sushila’s elder brother Dharam Pal, maternal uncle and maternal aunt had been to Chandigarh with Sushila on 21.11.2000. They remained in hospital. When this witness reached Chandigarh on 24th (November), he could not talk to Sushila on the advise of the doctors. 8. P.W.2 Dr. Rakhi Aulakh was posted as Demonstrator of Forensic Medicine in Govt. Medical College, Chandigarh on 26.11.2000, where the death of Sushila took place. She conducted postmortem examination on the dead body of Sushila and found superficial to deep burns on whole body. The said Medical Officer opined that Sushila died of shock due to burn injuries and their complications. In her opinion the burns described are ante mortem in nature and sufficient to cause death in due course of time. This witness has also stated that no other Medical Officer was present with her at the time she conducted the postmortem examination. 12 9. P.W.3 Dr. Robin Kaushik was posted as Sr. Resident, Deptt. of Surgery in Govt. Medical College Hospital, Chandigarh in November 2000, and brought Sushila’s medico-legal case file in the court. Sushila was referred to Govt. Medical College Hospital, Chandigarh by Doon Hospital, where she was admitted and treated by Dr. Amrawani. He has proved the signatures of Dr. Amrawani on bed head ticket Ext. Ka-2 and Ext. Ka-3 relating to Sushila. Dr. Amrawani has left the hospital and thereafter Sushila was treated by Dr. R.K. Batra and Dr. Surjeet Singh. Dr. Surjeet Singh has also left the hospital. Sushila Devi died on 24.11.2000 at 09:00 P.M. This witness has also proved bed head ticket, death report, death summary etc. and also the certificate of Dr. Surjeet Singh (Ext. ka-9), who had endorsed that patient Sushila is fit for statement on 24.11.2000, at 01:25 P.M. This witness has also proved the certificate (Ext. ka-10) on the back of (Ext. Ka-9) that patient Sushila remained fit while recording statement between 01:25 P.M. to 02:00 P.M. 10. P.W.4 H.C. Srikrishna Gupta was posted as Head Moharrir on 20.11.2000 at police station Rani Pokhari, and has proved Chik FIR (Ext. Ka-11) and copy of extract of General Diary (Ext. Ka-12). 11. P.W.5 Dr. R.K. Singh, Medical Officer, Doon Hospital was posted as Emergency Medical Officer on 20.11.2000. He brought medico-legal register of Doon Hospital. On 19 / 20.11.2000, at 12:15 P.M., Sushila was brought by her husband and this witness found superficial to deep burns 96% which were fresh and caused by dry 13 heat. The doctor has opined that these injuries may be caused by pouring of petrol or kerosene and setting one on fire on 19.11.2000, at 09:00 P.M. On cross-examination this witness has stated that when the patient was brought to hospital she was conscious. Bed head ticket of this patient was prepared by this Medical Officer. The patient was referred to PGI Chandigarh on 21.11.2000 at 05:30 P.M. The patient was in the state of altered consciousness. The treatment which was given by this doctor to the patient was to save her from entering seditione. 12. P.W.6 Pushvinder Singh, Judicial Magistrate, I Class, Amritsar, Punjab stated that he was posted as such on 24.11.2000 and was working as Duty Magistrate. On the application of S.I. Vivekanand Tiwari of police station Rishikesh, he contacted Dr. S. Sinha, who was on duty in hospital and obtained opinion about the fitness of the victim. Dr. Sinha told him that she is fit to give the statement. The dying declaration (Ext. Ka-15) recorded by this witness has already been discussed in the preceding paragraph. According to this witness the deponent also put her thumb impression on the statement. In his cross- examination the Judicial Magistrate has said that Dr. S. Sinha alone was with him when Sushila’s statement was recorded. This witness has further stated that he satisfied himself that Sushila was fit to give the statement. 13. P.W.7 Smt. Neelam Bhandari, the married sister-in- law of Sushila deposed that Sushila told her about demand of dowry by the accused after 5-6 months of the marriage. 14 She said that Sudhir (husband), Bijendra (jeth) and Sudha (nanad) used to harass her for non-fulfillment of demand of dowry. Sushila had disclosed about Rajini (jethani) that she cooperated in this act. The in-laws demanded colour television and tempo because Sudhir used to ply a hired tempo. On 19th November 2000, at 11:30 P.M., Sushila’s brother-in-law Sansaar told her that Sushila got burnt due to bursting of the stove. Sansaar Singh asked for financial help from her which could not be fulfilled. In the cross- examination this witness has stated that when the victim was brought in the tempo then no person of vicinity came, as none was called by her. Sushila asked for water and narrated the whole story to her. This witness made it clear that Sushila told her that Rajini helped the accused in setting her on fire. She also made it clear that she did not witness burns on the person of Sudhir (it is the case of the accused that he did not set Sushila on fire, instead he tried to save her and sustained burns in the process). 14. P.W.8 Satya Pal is the brother of the deceased and has stated that when he met his sister Sushila her whole body was burnt. She told him that Sudha, Rajini and Bijendra had sprinkled petrol on her and Sudhir set her on fire. When police went to the place of occurrence an empty bottle which was smelling of petrol was found in the room of Sudhir. Learned counsel for the accused / appellant pointed out variations in the description of articles such as sweater, slippers and sari, and argued that no such incident took place. We are inclined to brush aside this argument summarily in view of the fact that this is a case of dowry 15 death in which minor variations here and there in the description of sweater, sari and slipper do not have any bearing on the merit of the case. It has further been explained by P.W.8 Satya Pal in his cross-examination that Sushila had told them that all the four had poured kerosene and Sudhir put her on fire. 15. P.W.9 Raghubir Singh is the father of the deceased who has alleged that Bijendra, Rajini and Sudha used to harass her for non-fulfillment of demand of dowry. Brijendra has died. He has corroborated the statement of other witnesses that Sudhir, Bijendra, Sudha and Rajini put petrol on her and set her on fire. He said that he has disclosed the names of all the four accused while lodging FIR (incidentally Rajini’s name has not figured in the FIR) but this fact alone is not going to help accused Rajini in the sense that all the witnesses have stated the name of Rajini and her name also figured in the dying declaration. P.W.9 Raghubir Singh has stated that his daughter had told him that she was set on fire at 9 o’clock and she was conscious by then. 16. P.W.10 S.I. Vivekanand Tiwari is the Investigating Officer of the case and said that when Sushila was admitted to Doon Hospital she was not in a condition to give statement. He had been to Chandigarh and on his request the dying declaration of the victim was recorded by the Judicial Magistrate (Duty). This witness has proved other important documents. He was put to a lengthy cross- examination, but nothing has come out in his cross- 16 examination which points towards the innocence of the accused. 17. P.W.11 K.K. Gautam, Dy.S.P., LIU Moradabad was posted as Circle Officer, Rishikesh on 30.11.2000, and had taken over the investigation from his predecessor Vivekanand Tiwari, and has finally submitted the charge sheet (Ext. Ka-32) against the accused persons. 18. Statements of the accused were recorded under Section 313 of Cr.P.C. and they have denied the allegations. It was brought to the notice of the court that Sudha also died during pendency of appeal. This court is considering the case of accused Sudhir and Rajini on merits. Since Bijendra and Sudha have died therefore, case against them stood abated. 19. Learned Addl. Sessions Judge has considered the evidence adduced by the prosecution in detail and has come to the conclusion that charge of offences punishable under Section 302 and 498-A of I.P.C. have been proved against Sudhir, Sudha and Rajini (Sudha died during pendency of appeal). Learned Addl. Sessions Judge did not take recourse to Section 304-B of I.P.C., and instead has come to the conclusion that there is evidence against the accused in relation to the offence punishable under Section 302 and 498-A of I.P.C., which stood proved against them and hence, found them guilty on both the counts. 17 20. After hearing both the sides and perusing the evidence on record, we are in complete agreement with the finding of learned Addl. Sessions Judge that the case against the accused / appellants has been proved beyond reasonable doubt. 21. The appellants have tried to make inroads into the prosecution story by forwarding four defence witnesses, namely D.W.1 Rajesh Kumar, D.W.2 Roshan Singh, D.W.3 Sumit Kumar and D.W.4 Sanjay Sharma. D.W.1 Rajesh Kumar has stated that on 19th Novemebr 2000, at 10:00-10:30 P.M., Sudhir came to his house and informed that his wife has burnt while preparing food. The vikram on which Sudhir took his wife to hospital belongs to this witness. According to this witness, Sudhir told others that she sustained burns while cooking food (He had no other explanation to offer!). In the cross-examination this witness has stated that he was driving the tempo and he did not see the condition of Sushila. Sushila did not speak anything to him. It appeared to this witness that she sustained burns while cooking food. He (D.W.1 Rajesh Kumar) has told