In the High Court of Uttaranchal at Nainital. Criminal Appeal no. 208/2003 Nirmala Devi @ Ghunghera Devi w/o Satya Prakash @ Satya Prasad R/o village Deouri, (Malli), Patti Bamund, P.S. Chamba, District Tehri Garhwal ……Appellant. Vs. State of Uttaranchal …..Respondent. Sri Rajendra Kotiyal, learned counsel for appellant. Sri A. Rab, learned Addl. Govt. Advocate for respondent. Date: 06-07-2004 ORAL JUDGMENTG (Per: Hon’ble Irshad Hussain, J.) Appellant Smt. Nirmala Devi has been convicted and sentenced to undergo simple imprisonment for 7 (seven) years under section 304-B I.P.C. and simple imprisonment for 1 (one) year under section 498-A I.P.C. per judgment and order dated 17-7-2003 in sessions trial no. 28/2001. 2- The prosecution case briefly stated was that deceased Smt. Urmila Devi entered into wed-lock with Rajendra Prasad Tewari on 4/5-5-2001 and thereafter they lived together as the wife and husband. After some time the husband of the deceased, sister-in-law (Jethani) appellant Smt. Nirmala Devi, brother-in-law (Jeth) Satya Prakash, another brother-in-law (Jeth) Vijay Prakash, mother-in-law Smt. Rukmani Devi, the father of the appellant named as Rama Nand and the uncle of the husband named as Gaina Nand subjected the deceased to harassment for not bringing adequate dowry and at the same time coercing her to bring amount of Rs. 40,000/- from her mother and brother by giving threats that unless the demand is met they will not permit her to reside peacefully and happily in her marital home. Smt. Urmila disclosed the cause of harassment to her brother and mother when she visited them. The brother and the mother of the deceased not being able to fulfil the demand, they showed their inability on making a visit to the house of the husband of the deceased. Smt. Urmila Devi also disclosed that her husband and Jethani appellant Smt. Nirmala Devi have been maintaining illicit relations and since they were seen by her while indulging in indecent 2 activities she was subjected to harassment by way of demand for money. 3- The prosecution case was also that on 18-9-2001 at about 1 p.m. informant Rishi Ram Thapliyal (P.W.1), brother of the deceased was informed on telephone by one Gaina Nand Tewari that his sister has been admitted in hospital of Chamba town as she is seriously sick. The informant reached the hospital the same day at 7 p.m. where he found his sister admitted there with severe burn injuries in an unconscious state and there was none from the side of the in-laws to attend her in the hospital. The informant was convinced that the persons named above, have as a result of conspiracy, set his sister on fire for not meeting the illegal dowry demand. 4- Written report, Ext.Ka.1 scribed by one R.K. Joshi also mentioning the time of the incident as 7 a.m. of 18-9-2001 was filed at the police station the same day at 21.45 by the informant and on its basis a case under sections 498-A/120-B I.P.C. and 3/4 Dowry Prohibition Act was registered. The investigation of the case was to be take up by Circle Officer (Deputy S.P.), Tehri. 5- Memorandum (Ext. Ka.2) received from Christian Hospital, Chamba, disclosed that Smt. Urmila was admitted in the hospital at 9 a.m. on 18-9-2001 with 100% flame burn and she has expired on 19- 9-2001 at 7.50 p.m. In view of it the case was converted to one under sections 120-B, 498-A/304-B I.P.C. and section 3/4 of the Dowry Prohibition Act vide G.D. entry no. 26 of 20.30 dated 19-9-2001 (Ext. Ka. 17). 6- While deceased Smt. Urmila Devi was admitted in the hospital her dying-declaration (Ext.Ka.7) was recorded by Sri Pratap Singh Sah, Tehsildar Tehri ( P. W. 7) between 10.40 a.m. to 11.30 a.m. on 18-9-2001 in the presence of Medical Officer, Dr. Rajesh Singh (P.W.4) who has also initially medically examined the said victim at the time of her admission in the hospital and prepared the injury report (Ext.Ka.3). 7- P.W.7, Sri Pratap Singh Sah Tehsildar also held inquest on the dead body of Smt. Urmila Devi. He prepared inquest report (Ext.Ka.8) and relevant documents including the diagram of the dead body (Ext. ka. 10) and challan report (Ext. Ka. 12). The autopsy on 3 the dead body was held by Dr. S.K.Singh (P.W.6), who also proved post mortem report ( Ext.Ka.6). During investigation a plastic cane containing 2 liters of Kerosene oil and a party burnt plastic mat were seized vide memo (Ext.Ka.15) from the scene of the occurrence. After investigation, charge sheet (Ext.Ka.19) was submitted against seven accused persons including the appellant. 8- At the trail the prosecution examined 9 witnesses, few of whom have been named above with reference to their evidence. Others examined were P.W.2, Smt. Mangsiri Devi, the mother of the deceased; P.W.3, Surendra, another brother of the deceased who have corroborated the case of the prosecution that the appellant subjected the deceased to harassment for and in connection with demand of dowry resulting in her death under circumstances other than natural. P.W.5, A.S.I. Srichand Singh formally proved check F.I.R. and G.D. report of the registration of case and the investigation part of the case was proved by P.W.8, Sub-Inspector Digambar Singh Rawat and P.W.9, Circle Officer Jagat Ram Joshi, who had submitted charge sheet against the appellant and others. 9- The appellant pleaded not guilty and denied accusations of the prosecution. The defence set-up in the evidence by way of cross- examination of the prosecution witnesses was that the deceased Smt. Urmila Devi was not agreeing to her marriage with Rajendra Prasad Tiwari; that she was forced to enter into the wed-lock on the insistence of her family members; that on account of this she was not willing to remain in her nuptial home; that she also made false claim that her husband was not able to maintain sexual relationship with her on account of impotency; that she also made false claim that her Jethani, the appellant was maintaining illicit relations with her husband; that the deceased was interested in entering into wedlock with a person with whom she was having pre-marital relations and that when she could not succeed she committed suicide on account of frustration. 10- No oral evidence was adduced in defence but a written agreement in the form of a compromise ( Ext. Kha.1) dated 25-8-2001 was filed to show that the deceased has shown inclination of not residing in her in-law’s house and has once consumed some 4 poisonous substance by levelling a charge that her husband is impotent. The husband of the deceased was even medically examined in District Hospital on 24-8-2001 but was found physically fit in all respects. The informant by this compromise had assured that in case his sister ( deceased Smt. Urmila Devi) commits suicide the members of the family of the husband shall not be held responsible for the same. Smt. Urmila Devi, was under the compromise, handed over to the husband to be taken to her marital home. This compromise was also signed by deceased Smt. Urmila Devi and three witnesses named as Madhawa Nand, Bharatu and Jaidev Tewari. 11- On appreciation of the evidence on record the learned Sessions Judge found that the case of the prosecution stand established against the appellant beyond doubt for the offences punishable under sections 304-B and 498-A I.P.C. and accordingly held her guilty and convicted and sentenced her as referred above. Other four accused were acquitted of the charges under sections 120-B, 498-A and 304-B I.P.C. State did not file any appeal against their acquittal. 12- I have heard the learned counsel for the appellant and the learned Additional Government Advocate and carefully perused the material on record and considered the facts and circumstances of the case. 13- Learned counsel for the appellant submitted that there is no reliable evidence to prove that the appellant subjected the deceased to harassment for and in connection with demand of dowry and cash money and further that the dying-declaration of the deceased clearly appear to be a product of imagination and the same being not true the learned Sessions Judge made an error in coming to the conclusion that the charges were established against the appellant. On the other hand learned Additional Government Advocate while drawing attention to the evidence in the case laid stress on the proposition that the dying- declaration is truthful and the same could very-well be made basis of conviction and therefore the learned Sessions Judge was fully justified in placing reliance on it, also. 14- At the out-set section 304-B I.P.C., which deals with dowry death, is reproduced as follows:- 5 “304-B. Dowry death.- (1) Where the death of 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 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 which any extend to imprisonment for life.” 15- In order to convict an accused for offence under section 304-B I.P.C. the following essentials must be satisfied: (1) the death of a woman must have been caused by burn or bodily injuries or otherwise than under normal circumstances; (2) such death must be occurred within seven years of her marriage; (3) soon before her death the woman have been subjected to cruelty or harassment by her husband or by relatives of her husband; and, (4) such cruelty or harassment must be for or in connection with demand of dowry. It is only when the above mentioned essential ingredients are established by acceptable evidence such death shall be called “dowry death” and such husband or his relatives shall be deemed to have caused her death. 15- Section 113-B of the Indian Evidence Act, 1872 is also relevant for the case in hand. Section 113-B of the Evidence Act reads as follows:- “113-B. 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. Exaplanation. _ For the purposes of this section “dowry death” shall have the same meaning as in section 304-B, of the Indian Penal Code (45 of 1860).” 6 16- As can be seen from the above section also the essential ingredient is that the concerned woman must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. In the instant case, as is evident from the admitted facts, the first two ingredients are fully satisfied as the death of the deceased Smt. Urmila Devi occurred by burns within seven years of her marriage, therefore, a presumption under section 113-B of the Evidence Act could be available to the prosecution if it has been able to establish that the appellant was demanding dowry which was a harassment to the deceased, provided by preponderance of the probabilities the defence, in this case, could be able to discharge the onus and establish that the death of the deceased was on account of the reason otherwise than the alleged demand of dowry and harassment. 17- Learned counsel for the appellant by drawing attention to the evidence in the case submitted that the remaining two essential ingredients of the offence under consideration have not been satisfied because the prosecution has failed to show by cogent and reliable evidence that appellant had been making undue demand for dowry by way of cash amount and has also been harassing the deceased and further that the learned Sessions Judge wrongly placed reliance on the evidence of the mother of the deceased and her two brothers named above as well as upon the dying declaration taken it to be in conformity with he said line of evidence produced by the prosecution. It need to be pointed out here that the learned Sessions Judge has not fully analyzed the oral evidence in the case and felt contend to dilate upon mainly on the reliability of the dying-declaration of the deceased. The learned Sessions Judge briefly referred to the statements of the informant Rishi Ram (P.W.1), mother Smt. Mangsiri Devi (P.W.2), and another brother of the deceased Surendra (P.W.3) ( in paragraph no. 13 of the judgment) to draw inference that the evidence of these witnesses prove that the appellant made illegal dowry demand in the form of case amount of Rs. 40,000/- from the deceased and told her that if she will not bring the money she will not be permitted to live in peace. The learned Sessions Judge also took into consideration the statement of the mother that the deceased told 7 her that the appellant used to be continuously displeased with her for bringing insufficient dowry and thereby subjecting her to mental harassment. Believing on this statement the learned Sessions Judge came to the conclusion that is has been established beyond doubt that the appellant raised demand for dowry in the form of cash amount and subjected the deceased to harassment for not fulfilling the demand. 18- From perusal of the evidence of the above three witnesses it clearly appear that the learned Sessions Judge had not made proper and fair appreciation of the evidence and at the out set it can safely be said that the submission of the learned counsel for the appellant in that regard is well founded. P.W.1, Rishi Pal Singh, the brother of the deceased gave out that on the day of the marriage itself the appellant and others named in the F.I.R. have raised some quarrel but the matter was resolved by intervention of the relatives and co-villagers. The witness wanted to show that the dispute was raised in regard to the dowry usually given from the side of the bride at the time of the marriage. No independent evidence had been adduced in that regard. However the evidence of his mother P.W.2, Smt. Mangsiri Devi belie the claim made by this witness. She gave out that no demand of dowry was raised from the side of the in-laws of the deceased at the time of the marriage and that on the day of the marriage also no demand was raised by them and the marriage was solemnized peacefully. The other witness P.W.3, Surendra, who is also the brother of the deceased, gave out that no demand of dowry was raised before the marriage by the in-laws of the deceased but on the day of the marriage one of the co-accused Satya Prakash had raised some demand. This statement is also not corroborated by any evidence on record. On appreciation of the evidence of these three witnesses no inference that dowry demand was made at the time of the marriage by the appellant or any of the other relatives of the husband can therefore be legitimately raised in this case. 19- Similar view is deducible in regard to the demand of dowry in the form of cash amount after solemnization of the marriage of the deceased. The reason is that the deceased Smt. Urmila Devi visited her mother’s house only once after the marriage and at that time according to the prosecution she told her mother about the illegal 8 demand of dowry in the form of cash amount by the appellant and others. P.W.1 also stated that his sister told about the said demand to his mother and that the similar assertion was made by his sister when he went with her to the house of her in-laws on 25-8-2001 and she was left there in the marital home after a compromise was reached and was reduced in the form of writing ( Ext.Kha.1). This document does not refer to any demand of dowry having been raised by the appellant or any other relatives of the husband and therefore it would not be safe to place reliance on the claim made by the witness that on 25-8- 2001 his sister levelled such an allegation in his presence against the appellant. It need to be mentioned here that this witness admit of the compromise entered into on 25-8-2001 and the terms reduced into writing as Ext.Kha.1 which was as stated above was also signed by his sister and three witnesses one of whom is his close relative (Mausa) Madhwa Nand who was a Head Moharir in District Jail Pauri. 20- As regards the evidence of P.W.2, Smt. Mangsiri Devi is concerned, she had no where stated that the deceased told her that the appellant or any member of the family of the husband raised demand of dowry in the form of cash amount and this is the reason that she had not referred any specific sum of money with reference to any such allegation said to have been made by her daughter. She also gave out that the members of the family of the husband of her daughter have never raised any demand of dowry from her after the marriage. On being analyzed the evidence of this witness also does not indicate that the deceased ever told her that demand of dowry in the form of cash money was made and on account of non-fulfillment of the demand of dowry she was subjected to harassment by the appellant or any other family members of the husband. 21- So far as the evidence of another brother, P.W.3, Surendra is concerned, it need to be stated that according to him his sister, the deceased, told him that the appellant and others have raised a demand of dowry in the form of cash amounting to Rs.60,000/-. This amount so disclosed is contrary to the amount of Rs.40,000/- stated by P.W.1, no figure disclosed by P.W.2 and therefore it would not have been safe for the learned Sessions Judge to place reliance on the evidence of this witness also and to come to the conclusion that the evidence on 9 record prove that the deceased was soon before her death subjected to harassment by the appellant for or in connection with demand of dowry. 22- The learned Sessions Judge has placed implicit reliance on the dying-declaration of the deceased by treating it to be true and voluntary. It was also observed that the same is in conformity with the evidence produced by the prosecution and therefore the case of the prosecution was established beyond doubt against the appellant that she poured kerosene oil on the deceased and set her on fire causing fatal burn injuries, at about 7 a.m. on 18-9-2001 inside the marital home of the deceased. The learned counsel for the appellant submitted that for several reasons the dying-declaration can not be believed and the learned Sessions Judge fell in error in placing reliance on it also. It was submitted that looking to the burn injuries suffered by the deceased she could not have, in all probabilities, been able to speak and must have become unconscious instantaneously. It was also submitted that the evidence on record is sufficient to prove that the deceased was not in a fit mental and physical condition at the time of recording of her dying-declaration which was nothing but a mere product of imagination. On the other hand learned Additional Government Advocate laid stress on its reliability and truthfulness as the same was recorded by a responsible officer in the presence of Medical Officer. At the out set it need to be stated that under section 32 of the Evidence Act a dying-declaration is admissible in a court as evidence but it is essential that the declarant must be in a sound state of mind at the time of making the declaration. The Apex Court in the matter of Lakshman Vs. State of Maharastra; 2002 A.I.R. S.C.W. 3479 (3482) laid stress that “ the dying-declaration should be of such nature as to inspire full confidence by the court in its truthfulness and correctness. The Court however has to always be on guard to see that the statement of the deceased was not as a result of tutoring or prompting or a product of imagination. The court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant.” 23- Keeping in view the settled principle it need to be seen as to whether the dying-declaration in question is true and was rightly 10 relied upon by the learned Sessions Judge. In the face of the facts of the case it will be desirable to reproduce the dying-declaration ( Ext.Ka.7), which is as follows:- e`R;qiwoZ c;ku c;ku Jherh mfeZyk mez 20 o"kZ iRuh Jh jktsUnz izlkn frokjh fuoklh n;wjh Fkkuk pEkck rglhy fVgjh fnukad 18-9-2001 LFkku elhg vLirky peck le; 10&40 ,0,e0 Jherh mfeZyk iRuh Jh jktsUnz izlkn frokjh mez 20 o"kZ fuoklh xzke fn;wjh izkr% 9-40 ij HkrhZ dh xbZ rFkk bl le; c;ku nsus dh fLFkfr esa gSA g0 eksgj MkDVj jkts”k flag ,e0ch0ch0,l0] ,e-,l-- Mk;jsDVj] fØf”p;u gklfiVy] pEck Vsgjh x<okyA le; & 10-40 ,-,e- c;ku fd;k fd vkt fnukad 18-9-2001 dh izkr% 7 cts eSa lksdj mBh rFkk mBdj iqu% tehu ij lks xbZA esjs dejs esa esjh ftBkuh Jherh fueZyk iRuh Jh lR; izlkn frokjh vius nks cPpksa dq0 vatfy mez 4 o"kZ] dq0 ekUlh mez yx- 1 Ok"kZ rFkk cfgu dq0 jhuk mez 10 o"kZ ds lkFk lksbZ FkhA jhuk ,d&nks fnu igys gh ;gka vkbZ gq;h FkhA tc eSa nqckjk tehu ij lks xbZ rks mlh le; esjh ftBkuh fueZyk us dejs esa gh j[kk feVV~h rsy ls Hkjk tfdZu mBk;k vkSj esjs mij mMsy fn;k rFkk ekfpl dh rhyh ls vkx yxk nhA ?kj esa vkSj dksbZ ugh FkkA dksbZ iq:"k Hkh ugha FkkA esjs fpYYkkus ij iMkslh o xkao okys vk, rFkk esjs mij ikuh Mkydj vkx cq>kbZ vkSj eq>s ;gka vLirky ys vk,A esjs ifr jktsUnz izlkn fnYYkh fdlh dEiuh esa ukSdjh djrs gSA tsB lR; izlkn Hkh fnYyh esa gh ukSdjh djrs gSA esjh 'kknh 4 ekg iwoZ ebZ 2001 esa gqbZ FkhA esjs HkkbZ us ngst esa 30]000-00 :Ik;k fn;k Fkk fdUrq esjh ftBkuh ngst de ykus ij ges”kk ukjkt jgrh FkhA 10&15 fnu iwoZ Hkh esjh ftBkuh us fc"k nsdj eq>s ekjus dh dksf”k"k dh Fkh fdUrq mYVh djus ij eSa cp xbZA ejs lxs lkl&llqj thfor ugha gSA cMs lk&llqj gSaA esjk ek;dk xzke tyokyxkao rglhy izrkiuxj esa gSA mDRk c;ku esjs lEEkq[k fy;k x;k gSA vWxwBk fu”kkuh g0 rglhynkj fVgjh Jherh mfeZykA 18-9-001 11-30 ,-,e- g0 eksgj Mk0jkts”k flag ,e-ch-ch--,-] ,e-,l- Mk;jsDVj] fØf”p;u gklfiVy] pEkck le; & 11-30 ,0,e0 Vsgjh x<oky 11 24- Pointing to the above dying-declaration the learned counsel for the appellant submitted that such a detailed and perfectly structured dying declaration in the face of the fact that the deceased had received almost 100% burns and as a consequence thereof not being in a fit mental and physical condition the same clearly appear to be the result of product of imagination and therefore no reliance could have been placed on it and the learned Sessions Judge fell into error in taking into consideration the same for proof of the charges against the appellant. Here it need to be mentioned that the Apex Court in the case of Panch Deo Singh Vs. State of Bihar; 2002 A.I.R. S.C.W. 88 cautioned that a neatly structured dying declaration may bring about an adverse impression and distract the court from