Criminal Appeal No. 709-SB of 1996 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 709-SB of 1996 Date of Decision: 01.05.2009 Savitri Devi wife of Rajender Singh aged 56 years, Teacher/ Household, resident of village Bohar, Police Station Sadar Rohtak. ... Appellant Versus The State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipan Ghai, Senior Advocate, with Mr. Sandeep Gahlot, Advocate, for the appellant. Mr. P.S. Sullar, Deputy Advocate General, Haryana, for the respondent - State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 30.09.1996, and the order of sentence dated 03.10.1996, rendered by the Court of Additional Sessions Judge, Rohtak, vide which, it convicted the accused (now appellant), for the offences, punishable under Sections 304-B and 498-A of the Indian Penal Code, and sentenced her, to undergo rigorous imprisonment, for a period of 10 years, for the offence, punishable under Section 304-B of the Indian Criminal Appeal No. 709-SB of 1996 2 Penal Code; and further sentenced her, to undergo rigorous imprisonment, for a period of 2 years, and pay a fine of Rs. 1000/-, and in default thereof, to further undergo rigorous imprisonment, for a period of 4 months, for the offence, punishable under Section 498-A of the Indian Penal Code. The substantive sentences were, however, ordered to run concurrently. 2. Succinctly, the case of the prosecution, is that, Usha (since deceased), was married to Parmod of village Garhi Bohar, on 19.06.91. Soon after her marriage, accused Savitri Devi, mother-in-law of the deceased, demanded a ceiling fan of 56” size, which she (deceased) brought, from her parents, on her next visit (Dussar). Again, when the deceased came to her in-laws house, for the third time (Tissar), she brought an old iron box, whereupon, the accused commented that it was an old box worth Rs. 20/- only, whereas, she had sent her son, in a hired car, paying Rs. 400/-, as fare. The accused tried to inflict jelly blow, on the person of the deceased, who kept mum. The first pregnancy of the deceased was got aborted, as she was not given any medicine despite demand. The accused and her husband were both teachers, at the relevant time. On 18.03.95, Ram Murti, mother of the deceased, was operated upon, in Medical College Hospital, Rohtak, where, the deceased looked after her, whereupon, the accused and her husband were extremely annoyed. The accused by showing the articles, brought by other ladies, used to taunt the deceased, and tell her to bring cooler, good clothes, refrigerator etc. as, Criminal Appeal No. 709-SB of 1996 3 according to her, she (deceased) never brought such things. The accused even threatened to kill her. On 17.04.95, at about 8.30/9.00 AM, when all the four family members i.e. the deceased, her husband, the accused, and her husband, had taken meals, the accused, pretending to be unwell, told the deceased, to prepare tea for her. However, the accused had intentionally kept a kerosene bottle near the L.P.G. Stove, and had also left open the knob of the regulator. When the deceased lighted the match-stick, the gas, that had already leaked, caught fire immediately, and she (the deceased) thus, got burnt. 3. In burnt condition, the deceased was taken to Medical College and Hospital, Rohtak, where on medical examination, deep to superficial burns, all over her body, except both legs below knees, part of thighs and buttocks were found. She had about 70% burns. Dr. Amarjeet Singh, who medico-legally examined the injured sent ruqa exhibit PD, to the Police, whereupon, Virender Singh, Head Constable, came to the hospital, and obtained doctor's opinion. Usha was reported to be unfit to make statement, at 2.40 PM, on 17.04.95. On the next day, Assistant Sub Inspector Sunhera Singh, went to the hospital, and Smt. Usha, was opined to be fit to give her statement, at 4.00 PM. Thereupon, her statement exhibit PM, was recorded, on the basis whereof, the first information report, was registered. 4. An application exhibit PN, was moved before the Illaqa Magistrate, for recording the dying declaration, and accordingly the dying declaration, exhibit PT/2, was recorded, by Sh. Sanjiv Kumar Criminal Appeal No. 709-SB of 1996 4 Aggarwal, Judicial Magistrate 1st Class, Rohtak. The deceased reiterated the above version, in the dying declaration. The statements of Ram Singh, and Ram Murti, parents of the deceased, were also recorded, wherein, they reiterated about the dowry demands, made by the accused, and consequent harassment of the deceased, by her (accused). 5. Assistant Sub Inspector Sunhera Singh, on 22.04.95, lifted burnt clothes and dried blood etc. from the spot, and took into possession the same, vide memo exhibit PB, after preparing sealed parcels. Rough site plan exhibit PO, of the spot, was also prepared by him. The spot was also got photographed, from the Police Photographer. As per the Forensic Science Laboratory report, blood was detected, in the cotton swab, and kerosene residues were detected, in the partially burnt clothes, and blanket lifted from the spot, as also in the kerosene bottle found at the spot. Scaled site plan PA, was got prepared. 6. On the night intervening 24/25.04.95, Smt. Usha, succumbed to her burn injuries. On receiving information, from the doctor regarding the death of Usha, offence under Section 304-B of the Indian Penal Code, was added, and report, was sent to the Magistrate. Assistant Sub Inspector Sunhera Singh, conducted the inquest proceedings, on the dead-body, and sent the same for post-mortem examination. Dr. S.S. Dahiya, and Dr. Sushma Jain, conducted the post-mortem examination, on the dead-body, and found 75% burns on Criminal Appeal No. 709-SB of 1996 5 it. The cause of death, in the opinion of the aforesaid doctors, was burns, which were ante-mortem, in nature, and were sufficient to cause death, in the ordinary course of nature. After the completion of investigation, the accused was challaned. 7. On her appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 304-B and 498-A of the Indian Penal Code, was framed against her, to which she pleaded not guilty, and claimed judicial trial. 8. The prosecution, in support of its case, examined as many as 13 witnesses. Constable Ram Bhagat (PW1), is the Photographer, who proved photographs P1 to P9, in relation to the negatives P10 to P18, taken by him, at the spot. 9. Constable Sumeet Kumar (PW2), is the draftsman, who prepared the scaled site plan PA of the place of occurrence, on the pointing out of Parmod Kumar, husband of the deceased, and son of the accused. 10. Constable Rajesh Kumar (PW3), stated that Assistant Sub Inspector Sunhera Singh, had taken into possession various articles, after preparing sealed parcels thereof, vide memo PB, attested by him (Constable Rajesh Kumar), and Vijay Pal, Sarpanch. 11. Assistant Sub Inspector Sat Pal Singh (PW4), partly investigated this case, and recorded the statements of some of the Criminal Appeal No. 709-SB of 1996 6 formal witnesses. 12. Ram Singh (PW5), and Ram Murti (PW6), are the father and mother respectively of the deceased. They deposed, in terms of the prosecution version, as stated above. 13. Balwant Singh (PW7), is the uncle of the deceased. It was stated by him, that his younger brother Balwan Singh, had identified the dead-body of Usha, at the time of conducting the inquest proceedings, and the post-mortem examination. 14. Dr. Amarjeet Singh (PW8), deposed that Usha (now deceased) was brought to Post Graduate Institute of Medical Sciences, Rohtak, on 17.04.95, with history of burns. She had deep to superficial burns all over her body, except both legs, below knees, and parts of thighs and buttocks. Dr. Amarjeet Singh, as per the MLR, found 70% burns, on the person of Usha (now deceased), and informed the Police, regarding her admission in the aforesaid hospital. 15. Sub Inspector Abdul Majid (PW9), prepared the report, under Section 173 of the Code of Criminal Procedure, while he was posted as the Station House Officer, Police Station Sadar Rohtak. 16. Dharam Pal (PW10), produced the treatment file of Smt. Usha (now deceased), who was admitted in the hospital on 17.04.95, and expired on 25.04.95. 17. Dr. S.S. Dahiya (PW11), stated that he and Dr. Sushma Jain, conducted the post-mortem examination, on the dead-body of Smt. Usha Devi, and found 75% burns, which were superficial to deep. Criminal Appeal No. 709-SB of 1996 7 The cause of death, in the opinion of the doctor, was burns, and the complications thereof. The burns were ante-mortem, in nature, and sufficient to cause death, in the ordinary course of nature. 18. Assistant Sub Inspector Sunhera Singh (PW12), conducted the investigation, in this case. He obtained the certificate from the doctor that Usha was fit to make statement. 19. Sh. Sanjiv Kumar Aggarwal, the then Judicial Magistrate 1st Class, Rohtak (PW13), recorded the dying declaration of Usha (now deceased). Thereafter, the Public Prosecutor for the State, tendered into the prosecution evidence, copy of the report of the Forensic Science Laboratory, exhibit PS, and closed the same. 20. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. She was put all the incriminating circumstances, appearing against her, in the prosecution evidence. She pleaded false implication. It was admitted by her, that Usha, was married to Parmod, her son, on 19.06.91, according to Hindu religious rites. She took up the following plea, in her statement, under Section 313 of the Code of Criminal Procedure:- “On 17.04.95, I went to my school at about 6.45 AM, as the school timing was from 7.00 AM to 1.30 PM. At about 9.30 AM, I came to know that Usha, caught fire or tried to commit suicide in the house and that she had been taken to the MHC, Rohtak. I went to the hospital, and made enquiries from Usha, who told me that she caught fire accidentally. I sent a message to her parents, who reached the hospital in the afternoon. The parents of Usha, and her uncle Puran, and his wife Criminal Appeal No. 709-SB of 1996 8 tutored Usha and as a result thereof, she made a false report to the Police, on 17.04.95, and a false statement to the Magistrate on 19.04.95. Usha was never treated with cruelty and no dowry or gift of any kind was ever demanded from her by me or my family members. Mother of Usha, Smt. Ram Murti, PW, was never admitted in MHC, and she was never treated there as deposed to by PWs. My son Parmod Kumar, husband of Usha, is addicted to drinking and charas, he is unemployed also and Usha, was unhappy due to these bad habits of her husband. Parmod also treated Usha with cruelty and had become totally unmanageable. Either Usha caught fire accidentally or she attempted to commit suicide due to frustration in regard to the bad habits of her husband. The present case is result of greed of Ram Singh, and Ram Murti, PWs.” 21. In defence, the accused, examined Dr. Vishal, P.G. Student (DW1), who recorded the history of Usha, as told by her, when she was brought to the hospital, on 17.04.95,and admitted in ward No. 9. According to this doctor, the history given by Usha, was that, her husband was unemployed, so when she was teased by the parents of her husband, she burnt herself. He further stated that the patient was conscious, at the time of making the aforesaid statement. He further stated that this history was recorded by him, at page 69 of PG, bed head ticket. 22. Satish Sharma, JBT Teacher, Government Primary School, Garhi Majra (DW2), brought the summoned record and stated that in the month of April, 1995, the school timings were 8.00 AM to 2.00 PM. He further stated that on 27.04.95, the accused marked her Criminal Appeal No. 709-SB of 1996 9 presence in the school at 7.50 AM, and remained, in the school, till 10.30 AM. 23. Sukhbir Singh, Medical Record Technician, Post Graduate Institute of Medical Sciences, Rohtak (DW3), brought the admission card of the patient, for the month of March, 1995, and stated that there was no entry of the name of Smt. Ram Murti, resident of village Kirholi Pehladpur, in the records of Medical College and Hospital, Rohtak. 24. Vijay Pal (DW4), stated that, a boy named Dharambir, on 17.04.95, at about 9.00/9.30 AM, came to him, and informed that Parmod's wife, had received burn injuries. He further stated that, he did not know the name of Parmod's wife. He further stated that he went to the house of Parmod, and found that Parmod's wife was ablaze, in a big hall, where a shop factory was being run by Parmod. He further stated that when he reached there, Parmod's wife was alive, and he (Parmod), was present in the house. He further stated that some of the neighbourers were also present there. He further stated that he advised that she be removed to the hospital. He further stated that Parmod's wife, was saying that she had been harassed by Parmod, because he was addicted to liquor and drugs. He further stated that, a bottle of kerosene and a match box were also lying near the wife of Parmod, who was in burnt condition. 25. Parmod, husband of the deceased, and son of the accused, who appeared as (DW5), stated that, he was not present, in the house Criminal Appeal No. 709-SB of 1996 10 on the date of occurrence. He further stated that, at about 9.30/10.00 AM, he came to know, that Usha, had received burn injuries. He further stated that no other member of the family was present in the house. He further stated that when he came to his house, his neighbourers told him that Usha, had been removed to Medical College and Hospital, Rohtak. He further stated that he reached the hospital, and met his wife, in the Emergency Ward of the Medical College and Hospital, Rohtak. He further stated that he had a talk with her. He further stated that his wife disclosed that, while preparing meals, her dupatta (veil) caught fire. He further stated that he was not a drug addict. Thereafter, the accused closed the defence evidence. 26. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 27. Feeling aggrieved, the instant appeal, was filed by the appellant. 28. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 29. The Counsel for the appellant, submitted that, no doubt, Usha, died within seven years of her marriage, otherwise than, under normal circumstances. He further submitted that, however, no evidence, was produced by the prosecution, to prove that, she was ever harassed, in connection with the demand of dowry, much less, soon before her death, by the appellant. He further submitted that Usha, Criminal Appeal No. 709-SB of 1996 11 committed suicide, on account of the reason that, Parmod, her husband, was unemployed, and addicted to drugs and liquor. He further submitted that when immediately after Usha sustained burn injuries, she was got admitted, in the Medcial College and Hospital, Rohtak, she gave the history PG to Dr. Vishal, P.G. Student (DW1), that her husband was unemployed, addicted to drugs, and she used to be teased, by his (husband's) parents, and, as such, she burnt herself. He further submitted that, at that time, she was conscious, and fit, as stated by Dr. Vishal, DW1. He further submitted that, later on, the dying declaration, which was recorded by the Judicial Magistrate 1st Class, Rohtak, was the result of tutoring and imagination as, in the meanwhile, her parents had met her, and told her, as to what she was to say, against the appellant. He further submitted that, no doubt, solely, on the basis of the dying declaration, conviction can be recorded, but it must be voluntary and not tutored. He further submitted that the dying declaration recorded by the Judicial Magistrate 1st Class, being contradictory to the dying declaration made by Smt. Usha, to the doctor, first in point of time, as also not corroborated by any other evidence, was not reliable, but the trial Court, was wrong, in placing reliance thereon, and recording conviction. 30. On the other hand, the Counsel for the respondent, submitted that the husband of the deceased was very much present, at the time, she was got admitted, in the hospital, in the first instance, with burn injuries, and, as such, she was under his complete control. He Criminal Appeal No. 709-SB of 1996 12 further submitted that, on account of this reason, history PG, was given by the patient, and, as such, no reliance could be placed thereon. He further submitted that the dying declaration made by Usha, before the Judicial Magistrate 1st Class, Rohtak, was corroborated by other evidence. He further submitted that the dying declaration, recorded by the Judicial Magistrate 1st Class, was not the result of tutoring. He further submitted that the dying declaration made by Usha, before the Judicial Magistrate 1st Class, was voluntary and, as such, the trial Court, was right, in placing reliance thereon, to convict the accused. 31. For constituting the offence, punishable under Section 304- B of the Indian Penal Code, the prosecution is required to prove, that the married lady died, within a period of seven years of her marriage, otherwise than, under normal circumstances, and soon before her death, she was subjected to cruelty, in connection with the demand of dowry. There is, no doubt, with regard to the factum, that Usha, wife of Parmod, died within seven years of her marriage. There is also, no dispute, with regard to the factum, that she died, on account of burn injuries, sustained by her. It means that, she died, otherwise than, under normal circumstances, within seven years of her marriage. Let us see, as to whether, the third ingredient that she was subjected to cruelty, in connection with the demand of dowry, was proved or not. 32. Ram Singh, PW5, father of Usha, stated in his examination- in-chief, that the accused demanded fridge, cooler etc. He did not give the date, time, and month, when these articles were demanded. Ram Criminal Appeal No. 709-SB of 1996 13 Murti, PW6, mother of the deceased stated that, at the time of marriage, a number of dowry articles were given to the members of the in-laws family of the deceased. She did not state that after the marriage, any demand of dowry was made by the accused. Ram Singh, PW5, during the course of his cross-examination deposed that he had stated, in his statement DA before the Police, that his daughter was beaten by her mother-in-law with lathi and jelly. He further deposed that he had stated, in his statement DA, that 56 suits were demanded by the accused, and he fulfilled the demand. He further deposed that he had stated, in his statement, that Rajinder Singh, husband of Savitri, accused, had demanded loi, woolen suits, and tape-recorder. He further deposed that he had stated, in his statement DA, that Savitri, accused, had been taking his daughter for showing the articles of other persons, and then she used to taunt his daughter, that she had not brought fridge, cooler etc. He further deposed that he had stated, in his statement exhibit DA, that he had visited her in-laws house, during the period, his wife remained in the hospital, two-three times (when he was confronted with his statement DA, all the aforesaid facts were not found recorded therein). Ram Murti, wife of Ram Singh, PW5, mother of the deceased, when appeared as, PW6, deposed, in her cross-examination, that she stated, in her statement DB before the Police, that Savitri, accused, had administered mercury to her daughter. She further deposed that she had stated, in her statement DB, that they had given 56 lady suits and jewellery in the marriage. She further deposed that she had stated, in Criminal Appeal No. 709-SB of 1996 14 her statement DB, about the demand of gold bracelets, at the time of birth of Usha's son (when her attention was drawn to DB, her previous statement, these facts, were not found recorded therein). It was further stated by her, that cooler, was demanded from Usha, when she visited her in-laws house. The statements of both these witnesses are replete with material improvements vis-a-vis their previous statements. Even, from the statements of these witnesses, it is not made out, as to whether, any demand of dowry was made by the accused, soon before the death of the deceased. The demand, with regard to cooler and fridge, statedly made by the accused, from the parents of the deceased, was for the first time, stated in his statement, by Ram Singh, in the Court, and this fact, was not found recorded, in his statement DA, made by him, first in point of time, before the Police. The improvements made by these witnesses, in their statements, in the Court, vis-a-vis their previous statements, could not be taken into consideration. This shows that both these witnesses, have got scant regard for truth. In Yudhistir Vs. State of M.P., 1977, S.C. (Crl.), 684, the principle of law, laid down, was to the effect, that when a particular fact, deposed to by a witness, does not find mention in the FIR and the statement, under Section 161 Cr.P.C., it is an improvement and it cannot be considered. In K. Lakshman Rao Vs. The Public Prosecutor State of Andhra Pradesh & Another, 1979, Criminal Law Journal (SC), 696, the principle of law, laid down, was to the effect, that the improvements throw doubt, on the prosecution story. The principle of Criminal Appeal No. 709-SB of 1996 15 law, laid down, in the aforesaid cases, is fully applicable, to the facts of the present case. From the evidence, on record, it was, thus, not proved that the appellant harassed the deceased, in connection with the demand of dowry, soon before hear death. The third ingredient required for constituting the offence, punishable under Section 304-B of the Indian Penal Code, was, thus, not proved, from the ocular evidence. 33. It may be stated here that when, in the first instance, Usha, in burnt condition, was got admitted, in the hospital, her husband was with her. Dr. Vishal, P.G. Student, DW1, who attended Usha, at that time, in clear-cut terms, stated that he recorded the history given by Usha, in his hand, which is exhibit PG, at page 69, of the bed head ticket. He stated that Usha, had given the history, that her husband was unemployed and drug addict, and, when she was teased by the parents of her husband, she burnt herself. He in clear-cut terms, stated that she was conscious, at that time. There is no reason, to disbelieve the statement of Dr. Vishal, DW1, in this regard. He had no ill-will, grudge, or enmity, against the complainant, nor he was interested in the accused. Whatever was stated by Usha, before him, he recorded the same, as a part of the bed head ticket. Had she been harassed, in connection with the demand of dowry, that too, soon before her death, she would have certainly stated so before Dr. Vishal, while giving history, as to the circumstances in which she sustained burn injuries. No doubt, the trial Court, did not believe the statement of Dr. Vishal, DW1, and PG, the history given by Usha, on the ground, that the Criminal Appeal No. 709-SB of 1996 16 husband of Usha, was present, at that time, and she was under his control. The reason given by the trial Court, in this regard, cannot be said