DIVISION BENCH ’E .P SRMA AN OE‘MR. R.. NWAR, JJ. ‘Criminal ppeal No.495 of 2005 A makantand others - Veus - The State of hhattisgarh JUDGMENT FOR CONSIDERATION Sdl- T. P. Sharma Judge /‘) ed!— R‘L‘ Jha‘w‘laf wage a HON’BLE MR. JUS'RCE R.L. JHANWAR , ost for pronouncement of iudgment on gg‘Septe’fnben 201 P g Sd/- t t T. P. Sharma Judge} M b HIGH COURT OF CHHATTISGARH, BILASPU ' R HONBL MR. T. HA D HN’BL L JHA U rs C / \ I I I ”W N ‘ HIGH COURT OF CHHATTISGARH BILASPUR DlVlSION BENCH CORAM. HON BLE MR T P SHARMA AND > ‘ HON’BLE MR RL JHANWAR JJ Criminal Appeal No 495 of 2005 {Criminal appeal under Section 374 (2) of Code of Crimina! Procedure} ' Present: Mrs. Maia Dubey', counsel for the appellants. Mr. Arun Sao, Govt. Advocate for the State/respondent. Mr. Malay Kumar Bhaduri, counsel for the objector. . JUDGMENT (Dehvered on 214 September 2010) ‘ The followmq judqment of the Court was passed by T P Sharma J - 1 Challenge In thrs appeal ls to the Judgment of convrctlon & order of sentence dated 17 5 2005 passed by the 7“" Additional SeSSIons Judge (FTC) Durg m Sessions Tnat No 260/2003 whereby & whereunderrt'W ‘learned Additional Sessions Judge has conVIcted &’ sentenced the . . appellants in the following manner: - ’“ APPELLANTS: i ‘ 1. Umakant S/o Om Prakash Jaiswal aged (In-Jail) g about 24 years at present aged 26 years ’ ‘ occupation busmess resident of Madoda PS Newai Distt Durg(CG) 2. . Yashoda Wife of Om Prakash Jaiswal, I aged'about 47 years, at present aged 50 years, oCcupation hoUse wife, resident of Q? Madoda, P.S. Newai, Distt. Durg (CG).7 ' ‘. 3’. Om Prakash S/o Gurudin, aged 49‘years; 7!!! at present aged 52 years occ‘upation‘w g buslness reSIdent of Madoda P S Newai ‘ D'stt Durg (CG) Versus RESPONDENT: s The State of Chhattisgarh through the I Station House Officer Police Station Newai Distt. Durg (CG).- 2 Conviction Section 3 of the Dowry Prohibition Act, 1961 Section 4' of the Dowry Prohibition 'Act, 19,61 Section 498A of the I.P.C. Name of the accused _ Appellant . No.1 Umakant ni v Sentence ' . R.I. for 5 years and fine of Rs.2,000/-, ‘ in 'default additional RJ. for 1».year. ‘ R.l. for 1 year‘andv‘fine‘ of Rs.1,000/-, in default additional R.l. for 6 months; R.l. for 3 years and fine of Rs.2,000/—, in. U default ’additional R.l. for 6 months/'7 Imprisonment foralife’, and ' fine of Rs.2,000/—,'in, defaUIt .‘ additional R.l. for- 1 'year. Section 302 read ‘ with Section 34 ‘of the I.P.C. Section 3 of the Dowry Prohibition Act, 1961 Section 4 of the Dowry Prohibition Act, 1961 Section 498A of the I.P.C. Section 304B of the I.P.C. $i’ Imprisonment for life and fine of Rs.2,‘000/—', in default additional R.l. for 1«year. R.l. for 5 years and fine' of Rs.1,000/—, in v default additional R.l., for 6 months. R.l. for 6 months and ‘fine of Rs.1,000/-, ‘il’i default additionalR.l.for1month.p ' R.l. for 3 years and fine of, Rs.1,000/—, in ‘ edefault additional R.l. for 6 months. imprisonment for life and, fine of Rs.1 ,000/,—,’ in default additional 'R.l. for 6"months.‘ Imprisonment for life and fine of Rs.1,000/—, in default additional R.l.:for 6fmonths. " R.l. for 5 years and fine of Rs.2,000/—, in ' default additional R.l. for 6 months. R.l. for 1 year and fine of. default Appellant No.2 -Smt. Yashoda Section 304B of the I.P.C. Section 1302‘ read with Section 34 of the I.P.C. .Section 3 of the Dowry Prohibition Act, 1961 , Section 4 of the Dowry Prohibition Act, 1961 Section 498A of the I.P.C. Appellant No.3 Om Prakash Rs.1 ,000/—, in additional R.l. for 2 months. R.l. for'3 years and fine of. Rs.2,000/—, in default additional R.l. for 6'months.’ 2. éonviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants and thereby ’ committed illegality. v r ‘ K? 3, I §a ‘ 3. Case of the prosecution In brief Is that Smt Anita (smce decease was’ married to appellant No 1 Umakant and appellants No 2 & 3 are mother- ‘ ~' in—Iaw & father-in-Iaw of Smt. Anita, respectively. After her marriage, the appellants used to demand dowry of Rs.50,000/— and commit torture & a cruelty upon her in .connectiOn with demand of dowry.‘ On 2-8-2003 ' within one & half years of her marriage, in connection with the said illegal ,,l , - demand cf dowry, appellant No.1 Umakant poured kerosene oil over the body of Anita and appellant N62 Smt. Yashoda set her ablaze~byf lighting match box Anita was afraid of and tried to save herself and she caught hold of her elder brother-in law who also sustained burn injuries Thereafter she was admitted In Revxval Medical Centre on 2 8 2003 for treatment and she was under treatment In the said hospital. She was. examined by Dr. Vijay Kumar Sharma (PW-16) vide Ex.P-16. ‘She sustained burn injuries up to 50-55%. Appellant No.2 gave undertakin‘g' ' ‘i ‘ ; vide Ex.P-2 in which she has written that Anita sustained burn injuries due to accident Lastly, the InCIdent was intimated by Revwal Medical Centre to the police Vide EXP21 on 13 8-2003 Roinamcha was = recorded Vlde EXP-29. Dehati naISI was also recorded vide Ex.P-’23.and_ 'F'.l.R. was registered vide EXP—24. Anita was examined by thevdoctor on 12-8-2003 vide Ex P-26 Finally, she was shiftedvto ‘Jawaharlal Nehru Hospital & Research Centre Bhilai (Sector 9 Hospital Bhilai) on 13 8-v ' ’ 2003 where she was treated vrde bed head ticket Ex P 20 Anita died on ,7-972003 during the course of her treatment. Her dying declaration Ex.P— 13 was recorded by the Executive Magistrate Merg was intimated and ' , ‘t, a. a - r was recorded Vide Ex P-1 Elder brother in law of the deceased namely ,Shrikant Jaiswal was examined on 23 8-2003 and old burn injury of 20” l 1/2" to 5” was found over left hand Vide Ex.Pa14. After the death of the deceased, aftersummoning the witnesses vide Ex.P-3, inquest was“, , 4 L , IQ“ prepared vide Ex P-3A Dead body of Anita was sent for autopsy to Government Hospital Durg where the dead body was examined by a”. it. team of doctors comprlsmg of Dr P Akhtar (PW 4) & Dr Kalpana Sharma who found that cause of death Is septicemia and shock due to extenswe ante mortem burns On the basis of death mtlmatlon Ex P 6A merg ‘intimation was recorded by the Bhllai Nagar Pohcewde EXP-6. Documents were seized vide Ex.P-4. Spot map was prepared and Iist of articies given at the time of marriage was prepared vide Ex.P-8.‘ Articles were seized vide Ex P-12 Bed head ticket re'ating to the deceased seized trom ReVIvat Medical Centre was seized Vide Ex P—10 Bed head i ticket from Sector 9 Hospital Bhilai was seized Vide Ex P—11 lnwtation ‘card of marriage was seized Vide Ex P 19 Consent for treatment given by the relatives of the deceased is Ex.C-1. % f V I , v4. Statements of the Witnesses were recorded under Section 161 of the ' t CrP C and after completion of investigation charge sheet was fled before the Court of JudICiai Magistrate First Class Durg, who committed w w i: the case to the Court of Sessmns, Durg, from where learned'Additional I i Sessions Judge received the case on transfer for trial. _ ‘ 5. ln order to prove the guilt of the appellants, the prosecution has ' v examined as many‘as'twenty-seven witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the Circumstances appearing against them and pleaded innocence & false implication; They have taken defence that the deceased diedvas a result V 5 l of accident of chimney'(local lamp) and they have been falsely implicated. .\ '6. Defence has examined defence witnesses Pt. Krishna KumarMish‘ra. (DW—1) &’G‘osaibhai‘ Patel (DW—2). Pt. Krishna Kumar Mish'ra ('DW-1r) na / 5 §> has deposed that at the time of incident he was present in the house of the deceased, the deceased prepared tea for him, he along with Umakant & Yashoda Bai was taking tea, at that time they heard the sound of deceased Anita for heip on which they rushed to the courtyard where Anita was burning, immediateiy they asked her as to what has happened whereupon she told that on account of faiiure of eiectric power supply, she burnt the chimney and thereby as a result of accident her sari caught fire and she was injured badly by burns. Shrikant Jaiswal tried to save her and during the course of saving her, he alsosustained burndnjuries. They took the injured to the hospital. Gosaibhai Patel (DW—2) has translated Ex.D—2, the letter alleged to have been written by Anita. t u t'v After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned. We have heard learned counsel for the parties, perused the judgment and record of the trial Court. Learned counsel for the appellants vehemently argued that in the present case, conviction of the appellants 'is substantially based on then , dying declaration EXP-13 which does not inspire confidence and it was given by the deceased on the advise of her parents with a view to implicate the appellants falsely. Virtually, this was an incident occurred while the deceased was lighting the lamp and at the time of accident, on account of failure of electric supply the deceased burnt the local lamp (chimney) and she sustained burn injuries as a result of her negligent act. Shrikant Jaiswal has tried to save her and during the coursekof saving her,‘ he also sustained burn injuries. The appellants had \ a Ll. r v ii, mediately taken her to Revival Medical.Centre for treatmentratltheir“, t .{Ul ‘ n cost where she was given best treatment. The’eafter, she was ifted to Sector 9 Hospitai, Bhiiai and she died as a re dit of septicemia. he appellants have never demanded dowry an; they have never ommitted cruelty & torture. On the date of incident, appellant No.1 makant has not poured kerosene oil‘upon the body of the deceased d the appellants have not tried to set her ablaze, but on the ground at she sustained burn injuries accidentally and died as a result of such urn injuries, a false case has been cooked up against the appellants. ate‘nts‘ and maternal relatives of the deceased have tried to implicate the appellants on account of their love and affection towards the ecEased. Le'arned counsel placed reliance in the matter of Salamat Ali nd another v. State of Bihar1 in which the Supreme Court has held hat on the basis of evidence of frequent quarrels between accused and deceased wife, conviction of parents of accused is not proper. Learned counsel further placed reliance in the matter of Arvind Singh v. State‘of'“ Biharz in which the Supreme Court has held that dying declaration by deceased to her mother just few minutes before her death implicating her in-laws, absence of medical certificate of her declaration and absence of corroboration, such dying declaration is.not safe to rely. 0.0n the other hand, learned State counsel opposed the appeal and submitted that the prosecution has adduced sufficient evidence, conviction of the appellants is substantially based on the- dying! V‘ declaration Ex.P-13 recorded by the Executive Magistrate and the Court below has rightly convicted & sentenced the appellants. n‘ i ‘ l 1IR 1995 sc 1863 ArR 2001 sc 2124 im 6w sh T c U an th b P d a t 1 \2 A m .ad uel for the objector has placed reliance in the matter of 11Lerne cons r d . State of Haryanaa in which the Supreme Court has Puan Chan v hl h i ase of more than one dying declarations, it cannOt be, that ed tat n c dyig claratin which supports prosecution alone can be accepted i‘ n deo declaration cannot be rejected merely on the ground of and dying u m few factual errors the Courts must bear m mmd that each riin tril is an individual aspect and therefore a mechanical h o a of dying declaration has to be shunned Learned frer laced reliance in the matter of Govmdappa & Ors v Krna_taka In which the Supreme Court has held that iio by octor as to fit condition of deceased is essentially ruleyoft‘ t, utn. Virtully the person recording dying declaration isrequired to fy self hat the deponent was In tit state of mind to give satis him t tam Lrned counsel also placed reliance in the matter of Uday ” steent ea ‘ ort & Ors. v. 'State of West Bengals in which the‘Su‘preme Chakraby our eld hat in case’of death of bride within two years of her Ct has h t arri conviion’of appellants under Sections 498A & 304B of the l.. he bis of evidence relating to demand of dowry &-tortureis’ t ro and ustainable. 'Learned counsel relied upon the matter of no pper s a s v State of U P etc 6 in which the Supreme Court Munnawr & Or el that ing declaration recorded by Executive Magistrate and ~ has hd dy endorsed by doctor deceased died several days later dying declaration ' was reliable. 12.ln order to appreciate the arguments advanced on behalf of the parties, L: we have examined the evidence adduced on behalf of the parties l 4 2010 AIR scw 3677 2010 AIR scw 3702 l 2010 AIR scw 4435 f201o AIR scw 3296 l ,@ Il.y :it" sffering fro cmal a approac t lw counsel uth p Vs State of a certficat£n d caio a mage, ct .PC on t as / 8 ‘13.The prosecution has examined as many as twenty-seven witnéss’e . Defence has alsoexamined Pt. Krishna Kumar Mishra (DW—1) 8L Gosaibhai Patel (DW-2). Gosaibhai Patel (DW—2) has only translated the document EX D 2 alleged letter written by the deceased which reveals that ornaments were given to her and she was pregnant she was examined by the doctor The deceased has never deposed that she was beaten by kitchen stool or by rod or by sttck Inter alra as per the evrdence of Pt Knshna Kumar Mlshra (DW-1) at the time of motdent he 'hlmself was present In the house of the accused persons where‘ deceased Anita prepared tea and prowded to him and also to the g appellants while they were taking tea they heard the scream for help ‘bachao bachao, then he rmmedtately rushed to the courtyard where Anita was burning, on being asked'she told that on account of failurein electric supply when she enlightened the chimney lamp her sari caught“ h " fire of the chimney lamp‘and the chimney was broken, Shrikant Jalswal — .e‘lder brother-in-law of Anita immediately tried to save her and during the course of savmg, he also sustained burn Injuries they poured water‘ upon her Appellant No.1 Umakant took her to the hospltal by tempo. As per the evidence of this witness, the appellants have not poured kerosene oil on her body and have not burnt her, but that was a mere accident. 14.As regards burn injuries and abnormal death of deceased Anita, as per t the evidence of Dr. Vijay Kumar Sharma (PW-16) on 2-8—2003 Anita Was r brOught to Revival Medical Centre Bhilai for treatment' at that time burn Iniunes were found over her chest back and both the hands and he has treated her Vlde Ex P 16 As per para 2 of his evrdence appellants No 1 & 2 have brought Anlta and on being asked injured Anita told that him that bymistake kerosene orl fell upon her b'ody.‘ He contactedhis iseniorr I, ,,.V 'It,y octor for intimating about the incident to police, but appeliants No,1 & d 2 objected the same and even they gave a vilritten document that itwas‘ e“ ’ case of mere accident, vide Ex.P-2. However, finally on 13-8-2003 written report was made by Revival Medical Centre to the police vide EXP-Z1. This witness has deposed in detail about the treatment given to Anita. He himself has not asked Anita anything that how she‘sustained injuries. ln para 13 of his evidence, he has denied the suggestion that he obtained the signature of Satyadevi on Ex.P-2 by hooks & crooks. 15.Another doctor namely Dr. Kirti Kaura (PW-18) has deposed in her i evidence that on 26—4-2003 she has conducted DNC test of Anita vide Exp—1 é. ~ 16.Anita was finally shifted to Sector-9 Hospital. Bhilai where. she was treated by Dr. Mamta Sikroria (PW—19). As per her evidence, chest, abdomen both legs & both hands of Anita were burnt, she was burnt up to 70% she was shifted from Revrval Medical Centre and she died on 7— 9-2003 at 8 p m ln para 5 of her cross examination this wrtness has admitted that during treatment of Anita, she was In conscrous state of i' i‘ %&sw%% “l mind. . 17.Another doctor namely Dr. Virendra Kumar Suri (PW-21) has supported the treatment of Anita. Dr. P. Akhtar (PW-4) who has conducted autopsy on the dead body of Anita vide Ex.P-5 has deposed that Anita was burnt up to 82% and cause of death was extensive ante-mortem burns, septicemia & shock. ' ‘ / 18 As per the case of both the parties Anita sustained burn Injuries on 2 8— \\\ 2003 and as a result of such burn injuries she finally died due to shock V” \ .v — \ and septicemia. Death of Anita was direct result of burn injuries \ sustained by her and its complications i.e. septicemia and death was ’- W ‘10 abnormal. As per the case of the prosecution, Anita was married to > v appellant No.1 Umakant 1 1/2' years prior to incident, inter alia, she died within two years of her marriage. » 19.As per rojnamcha EXP-290 and evidence'of Samundar Das (PW-25) — Head Constable, appeHant No.2 Yashoda has intimated to the police that on 2-8-2003 Anita was cooking breakfast on gas stove,*as the gas stove ' ‘ was not in order sherenlightened the chimney, her sari was burnt by /A chimney, chimney fell down and broken then she rushed towards tap and shouted. In para 2 of his cross—examination Samundar Das (PW- . u ‘ 2’5)has‘ admitted that as per EXP-29 appellant No.3 Om Prakash was not preSent in his'house. § 20.K’.B.;Singh (PW-2%) —‘Assistant Sub Inspector has depoSed in his evidenCe that he has recorded dehati nalsi EXP-23, F.l.R. EXP-24 and other documents. in para 6 of his evidence, he has admitted that. he has also sent letter Ex.P-2 (virtUaIIy Ex.Cr2) for recording dying declaration to the-doctor on 12—8-2003 and on that day'Anita was not in tit condition to , give statement. 21.As per the evidenceiof Dr. Vijay Kumar Sharma (PW-16), he has‘firstlywx.»~" ' examined Anita and she was under his treatment till 13-8-2003. He has ‘ specifically deposed that when Anita was admitted in his hospital i.e. f Revival Medical Centre, her upper part of chest, back & both hands‘were burnt; she herself, ’he‘r mother—in-law & her husband had told him that by mistake kerosene oil fell upon her and this is a case of.accident. . ‘ ,. , Therefore after discussion with senior doctor namely Dr Ashish Pahuja he has treated her till 13 8 2003 He has also stated that Ex P 2 was h ' written by Yashoda & Umakant but Anita was not In a posmon to Sign on account of burn imunes ‘over her hands. Ex.P-2, the consent letter IL! rt .It’, . rt written on 2-8—2003 at 9 a.m., feVéais'‘ihat it is a burnt case of accident, ’ Anita herself has burnt by hers'elf and nobody has burnt her. it bears the L signatures of Umakant &‘Yashoda. Another signature of Satyadevi.was aiso present on EXP-2 as sister. As per para’10 of his cross- Vexamination it is clear that Satyadevi Jaiswal was not Nurse, she is sister of deceased Anita Jaiswal As para 9 of his cross-examination he has repeatedly asked Anita who told him that nobody has burnt her and that was a Simple acoldent He has further deposed In para 9 that even after the statement of Anita her husband Umakant & her mother—In law ‘ 'Yashdd‘é he was adamant to lodge report but he has not lodged report I till 13 8-2003 In para 10 of his cross—examination he has further deposed that SatyadeVI had not asked anything to Anlta and Anita has not told to SatyadeVI that who has burnt her In para 11 he has deposed that SatyadeVi used to come to hospital to meet Anita in para 12 he has further deposed that SatyadeVi has Signed on Ex P 2 but in para 13 he M L A has denied the suggestion that by hooks & crooks he has succeeded in obtaining the signature of Satyadevi on Ex P-2 As per para 15 of his cross-examination Anita was admitted in his hospital till 13 8 2003 at 10 V p m thereafter she was shifted to Sector-9 Hospital Bhilai and she was admitted in Sector-9 Hospital on 13— -2003 at about 11 p m ‘ On " examination her chest abdomen both hands & both legs were found ' burnt and she died on 7-9-2003. i g ‘ " I. H 22 As per the eVidence of S R MandaVI (PW—12) on 13 8—2003 at about 4 20 p m he has recorded dying declaration of Anita at ReVival Medical I Centre Bhilai Vide Ex P 13 in which Anita has made dying declaration ‘/’\ that both the appellants (appellants No1 & 2 herein) used to commit cruelty & torture upon her on 1 8 2003 ie one day before the inCident she was badly beaten by Umakant — her husband, and thereafter on. 2—8- v vp 2003 at about 8 a.m. Umakant poured kerosene oi! on her body and her mother-in-Iaw Yashoda set her ablaze by Iighting match stick. She immediately caught hold of her eider brother-in—Iaw who was present{ . I .._ there and he also sustained burn injuries, thereafter neighbours changed her clothes and took her to hospital. Anita has further stated that the appellants used to commit torture & cruelty upon her on account of demand of Rs.50,000I-, right from the date of marriage. As per the evidence of this witness, he has obtained the signature of Anita on Ex.P- 13. '$? ~ 23.ln the present case, as per the evidence of prosecution witnesses and,“ V m, t . defence£witnesses‘, it is not disputed that on 2—8-2003 Anita sustained burn injuries in her matrimonial house where Umakant, Yashoda and elder brother-in-law of deceased Anita i.e. Shrikant Jaiswal were present. Anita was admitted in Revival Medical Centre, Bhilai on 2-8-‘2003 and she remained there till 1O p.m. of 13—8-.2003, thereafter, she was shifted to Sector-9 Hospital, Bhilai. Prior to 13-8—2003, Revival Medical Centre has not intimated the incident to police and intimated only on 13-8-2093 r ' y t vide EXP-21. 24.As per the evidence of Dr. Vijay Kumar Sharma (PW-16) —— treating surgeon of Revival Medical Centre, he has obtained consent letter Ex.P- 2 from Umakant & Yashoda and even after assuring himself that it was a case of accident, he was adamant to lodge report, but for the reasons ‘ best known to him he has not lodged any report. As per para 5 of the w: evidence of this witness, Yashoda & Umakant had signed on Ex.P-2, but“, ’ Ex.P-2 reveals the signature of Satyadevi @ Savita (PW-2) also 'who is \ sister of deceased Anita. Ex.P‘2 further reveals that it was prepared at 9 l K" \ i i r i \ a.m. at the time of admission of Anita. .. . . .