IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No 50 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE B.J.SHETHNA and Hon'ble MR.JUSTICE M.S.SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RADHESHYAM KANTARAM YADAV Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Criminal Appeal No. 50 of 1998 MR BA SURTI for Petitioner No. 1-2 MR AY KOGJE, APP for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE B.J.SHETHNA and MR.JUSTICE M.S.SHAH Date of decision: 11 & 13/02/2003 ORAL JUDGEMENT (Per : MR.JUSTICE M.S.SHAH) This is an appeal against the judgment and order dated 4.12.1997 rendered by the learned Additional Sessions Judge, Panchmahals at Dahod in Sessions Case No. 64 of 1997 convicting both the appellant-original accused for the offences punishable under Section 302 read with Section 114 IPC and also for the offence punishable under Section 498-A IPC and sentencing both the appellant-accused to imprisonment for life and to pay a fine of Rs.1000/- in default rigorous imprisonment for one month. The learned Additional Sessions Judge did not pass any separate order of sentence for the offence punishable under Section 498-A IPC. 2. The prosecution case was that Anand Kantaprasad Yadav lodged the FIR dated 4.2.1997 with the Police Station at Dahod to the effect that accused No. 1 Radheshyam Kantaram Yadav was married to his sister Kiran (hereinafter referred to as "the deceased") on 21.11.1996. Accused No. 2 is the mother of accused No. 1. Accused No. 1 was employed in the Railway Workshop at Dahod. After her marriage, the deceased-sister Kiranben was staying with her husband-accused No.1 and mother-in-law, accused No. 2 at Dahod and after the said marriage, the deceased had gone to her parents' place at Ratlam three times. On the last occasion, the deceased had gone to her parents' place at Ratlam on 12.1.1997 and had complained about the harassment from the accused. On 19.1.1997, accused No.1 had gone to Ratlam to take the deceased back to the matrimonial home at Dahod. While going back to Dahod, the deceased had broken down and stated that the deceased was threatened by accused No. 1 that the deceased will be burnt to death. However, the deceased was persuaded to go with her husband to Dahod. In the evening of 1.2.1997, the complainant had received a telephonic message from Dahod that the deceased had suffered burn injuries and was undergoing treatment at a hospital. Hence, the complainant, his father and elder brother had all gone to Dahod where they found that the complainant's sister-Kiran had sustained serious burn injuries and was unconscious. When the deceased regained consciousness, she informed the complainant that her husband-accused No. 1 had gone for his job at 11.00 AM in the morning on 1.2.1997 and thereafter her mother-in-law, accused No. 2, had picked up quarrel with the deceased. When accused No. 1-husband returned from work, her mother-in-law, accused No. 2, had instigated accused No. 1 and accused No. 1 had beaten up the deceased and, therefore, the deceased had become unconscious. When she regained consciousness, she found that she was burning and, therefore, she had shouted. She was set on fire by both the accused by sprinkling kerosene on her body. The deceased had also told the complainant that both the accused were in the habit of finding fault with the deceased on petty issues and were harassing her and beating her up and were meting out physical and mental cruelty. Ultimately, the deceased succumbed to the injuries on 6.2.1997, both the accused were arrested on the same day, while accused No. 2 came to be released after a month, accused No. 1 remained an under trial prisoner throughout the trial. Both the accused were charge-sheeted. 3. At the trial, the prosecution examined three medical witnesses at Railway Hospital at Exhs. 12, 15 and 20. Executive Magistrate-Mr CJ Patel who had recorded the dying declarations of the deceased was examined at Exh. 24. Complainant-Anand Kantaprasad Yadav (brother of the deceased) and the father and another brother of the deceased were examined at Exh. 27, 28 and 29 respectively. Investigating Officer-PSI LM Damor was examined at Exh. 30. The documentary evidences comprising of the FIR, panchnama of the scene of offence, inquest panchnama, post-mortem note, FSL report and the dying declarations recorded by the Executive Magistrate and also the statements purporting to be the statements given by the deceased before the police will be referred to hereinafter at the appropriate stage. 4. The learned Sessions Judge held that there was no eye witness of the incident, but the charge against both the accused was proved beyond reasonable doubt on the basis of the circumstantial evidence and also on the basis of two dying declarations given by the deceased before the Executive Magistrate and the doctor at the hospital. The first dying declaration was given by the deceased at 12.00 midnight i.e. on the night between 1st and 2nd February, 1997 which is at Exh. 25. The second dying declaration was given by the deceased from 8.05 to 8.35 PM on 3.2.1997 which is at Exh. 26. The learned Sessions Judge held that the deceased had suffered 90% burn injuries and that from her dying declaration recorded in the evening on 3.2.1997 before the Executive Magistrate and the doctor at the hospital as well as from the evidence of the complainant, it was clear that the deceased was subjected to harassment and dowry demand and that on the date of the incident also, there was harassment by both the accused and also physical beating up of the deceased by accused No. 1 and that there was also dowry demand by the accused in the evening just prior to the incident. The learned Sessions Judge held that from the panchnama of the house of the accused where the deceased was residing with the accused, it transpired that the kerosene was found on the entire floor of the middle room of the quarter consisting of two rooms and the kitchen and the kerosene stove was also lying in the same middle room, but the gas stove was found in the kitchen. The learned Sessions Judge found from the FSL report that the pieces of burnt saree which was worn by the deceased were found in the said middle room and some pieces were also found in the kitchen. Smell of kerosene was also found on the burnt pieces of saree. The learned Sessions Judge held that the incident in question did not take place in the kitchen but it took place in the middle room. The learned Judge examined the theory of accident pleaded by the accused at the trial, but ruled out the said theory and also examined whether the incident in question was a case of culpable homicide or suicide, and ultimately convicted the accused of culpable homicide amounting to murder punishable under Section 302 IPC and also for the offence punishable under Section 498-A. 5. At the hearing of the appeal, Mr Bharat A Surti, learned counsel for both the appellant-accused has made the following submissions :- (i) The learned Sessions Judge has erred in not accepting the case of the accused at the trial that the incident in question was an accident pure and simple and that it was only on account of the accident that the deceased had sustained injuries while making tea in the evening and there was no question of holding the accused guilty of the offence of murder when the deceased-wife had given as many as four dying declarations and in none of them she had made any statement that either of the accused had sprinkled kerosene on the deceased or that either of the accused had lighted the match stick which resulted into fire and the consequential burn injuries on the deceased. (ii) In her first dying declaration which was recorded at 12.00 midnight on the date of the incident i.e. at the night between 1st and 2nd February, 1997, the deceased had clearly stated that while preparing tea on the stove, her saree caught fire. In the said first statement, she has not made any allegation about any harassment by either of the accused or about any demand and, therefore, apart from the accused not being guilty of the offence of murder, the accused cannot be found guilty even of the offence punishable under Section 498-A IPC. (iii) In her second dying declaration before the PSI on 2.2.1997 at 10.00 A.M., the deceased had clearly stated that when she had gone to the kitchen to make tea, kerosene had come out of the primus stove, and the match stick lighted to light the gas stove had fallen on the floor and, therefore, her clothes had caught fire and she had sustained burn injuries. In the said statement she had also stated that she had good relations with her husband - accused No.1 and even with her mother-in-law, accused No.2. There were usual ordinary altercations about household work, but there were no serious disputes. The said statement was recorded in presence of the Emergency Duty Medical Officer at 10 O'clock in the morning of 2.2.1997 and, therefore, the said statement was required to be accepted. (iv) Even in her third dying declaration recorded by the Executive Magistrate at 8.00 P.M. on 3.2.1997, the deceased had not stated that either of the accused had poured or sprinkled kerosene on the deceased or had lighted the match stick and, therefore, the said dying declaration is also consistent with the theory of accident. Relying on the said dying declaration, it is submitted that in view of the fact that both the accused tried to extinguish fire and as borne out by the other evidence that the accused themselves had also suffered burn injuries, it was not possible to hold that the accused had intended to cause death of the deceased. On the contrary, they had attempted to save the deceased and had also taken her to the hospital. This conduct of the accused is certainly inconsistent with the offence of murder with which the learned Sessions Judge has convicted the accused. (v) The deceased had also given the fourth dying declaration on 4.2.1997 which is not exhibited by the learned Sessions Judge, but the Investigating Officer Mr Damor was cross-examined with reference to the said statement and, therefore, the said statement was required to be exhibited. The Investigating Officer had also referred to the said statement in his examination-in-chief and, in fact a copy of the said statement was also supplied to the accused alongwith the other papers when the chargesheet was filed and, therefore also, the said statement was required to be exhibited. As per the said statement also, the incident was merely an accident and the said statement also explained how the kerosene came to be found on the floor and how the deceased sustained burn injuries. In the said statement, the deceased had stated that there was no dowry demand and there were only usual family disputes with the mother-in-law. (vi) Although the father and brothers of the deceased had arrived from Ratlam to Dahod in the evening of 1.2.1997, the FIR was not lodged with the Dahod Town Police Station till 4.2.1997 and, therefore, the delay in lodging the complaint is fatal to the prosecution case. 6. On the other hand, Mr AY Kogje, learned Additional Public Prosecutor for the State has opposed the appeal and submitted that the learned Sessions Judge has rightly convicted the accused for the offence of murder as the tell-tale circumstances on record alongwith the dying declaration dated 3.2.1997 are sufficient to complete the chain and are consistent with the prosecution case of the accused having committed murder of the deceased by setting her on fire. Reliance is also placed on the decision of the Constitution Bench of the Supreme Court in Laxman vs. State of Maharashtra, 2003(1) GLR 1, laying down that when the doctor has made an endorsement on the dying declaration that "the patient is conscious", it also means that the patient is in a fit state of mind to make the dying declaration and that when it is proved by testimony of the Executive Magistrate that the declarant was fit to make the statement, the dying declaration can be acted upon even without examination of the declarant by the doctor. It is submitted that in the instant case both the Executive Magistrate as well as the Doctor have been examined and they have deposed that the deceased was fit to make the dying declaration on 3.2.1997 at 8.00 PM. 7. Before proceeding to deal with the submissions of the learned counsel, it is necessary to refer to the following principles enunciated by the Apex Court :- In Om Prakash vs. State of Punjab, (1992) 4 SCC 212 = 1992 SCC (Cri) 848, the Apex Court held that in case of a woman dying because of the burn injuries, it is the duty of the Court, in a case of death because of torture and demand for dowry, to examine the circumstances of each case and evidence adduced on behalf of the parties, for recording a finding on the question as to why the death has taken place. While judging the evidence and the circumstances of the case, the Court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present. In Baldev Krishan vs. State of Haryana, AIR 1997 SC 1666, the Apex Court has held that when a young house wife dies due to burn injuries in her matrimonial home and physical and mental ill-treatment and harassment of the deceased by her in-laws on account of insufficient dowry is shown and no other person except the accused was staying in the house, the accused is required to explain the circumstances under which the deceased sustained burn injuries. 8. It is required to be noted at the outset that the accused did not lead any evidence at the trial and even in his further statement under Section 313 Cr.PC, the accused did not make any attempt to explain the incident even though the contents of the dying declaration Exh. 25 were put to them in question Nos. 22 to 28 except stating that whatever was stated therein was false. 9. Having carefully gone through the evidence on record and having given careful consideration to the arguments of the learned counsel for the parties, we are clearly of the view that there is no substance in the submission made on behalf of the appellant-accused that the instant case was one of accident. The deceased suffered 90% burn injuries. According to the defence case, the incident in question took place when the deceased was making tea after her husband- accused No.1 had returned home from work. Admittedly, there was a gas stove in the kitchen with a gas cylinder. It is, therefore, difficult to appreciate as to how a kerosene stove came to be opened and not only that, but kerosene was found on a large area of the floor in the middle room which was not the kitchen. The quarters occupied by accused No.1 consisted of three rooms i.e. two rooms and a kitchen. As per the panchnama of the scene of offence which was prepared on 2.2.1997 between 8.30 and 9.30 A.M., on entering the quarters the first room had iron cot and mattresses and in the middle room there was an iron cot, a few mattresses and other household kit. A brass stove i.e. a kerosene stove was also lying in the said middle room and the stove was surrounded by pieces of burnt yellow saree. There was also a black plastic can in burnt condition and the kerosene was found on the floor of the room. The third room i.e. the kitchen had a gas stove on a shelf with a gas cylinder with a water tank close by. The police took the kerosene stove, a half burnt kerosene can, match stick box and the pieces of burnt saree as muddamal articles. As per the report of the Science Officer, Regional Forensic Science Laboratory, Gujarat State, Surat at Exh.12, kerosene smell was emanating from the half burnt pieces of yellow saree. As per the panchnama, which is not disputed, there was a gas stove alongwith a gas cylinder in the house of the deceased. Even as per two statements alleged to have been given by the deceased before the police in the morning of 2.2.1997 and again in the morning of 4.2.1997, on which statements the defence is relying, the deceased had lighted a match stick to light the gas stove and not the kerosene stove. It is, therefore, not possible to appreciate as to how kerosene came to be found on the floor of the middle room or on the saree of the deceased. These pieces of evidence are certainly inconsistent with the theory of accident suggested by the defence, so also the fact that kerosene was found on the floor of the middle room and not in the kitchen also is inconsistent with the defence theory of accident. The accused did not make any attempt to show how the kerosene stove or the kerosene can came on the scene and how the kerosene had fallen on the floor, when there was already a gas stove and a gas cylinder in the kitchen. 10. As regards the argument of Mr Surti for the accused that as per the first dying declaration recorded by the Executive Magistrate at midnight between 1st and 2nd February, 1997, the deceased had stated that she had suffered burn injuries while preparing tea on stove, it is required to be noted that the deceased had suffered 90% burn injuries all over her body except the face and the head at about 4.30 P.M. on 1.2.1997. The deceased was rushed to the hospital at 5.10 P.M.. The deceased was not in a position to give any statement even at 7.45 P.M. as per the certificate of Dr. Rajiv Jain, DMO at the Western Railway Hospital as per Exh.19 and it was only at about 12.00 midnight that the statement of the deceased was recorded. The deceased was hailing from Ratlam in Madhya Pradesh and was married to accused No.1 in the month of November, 1996. From the dying declaration given by her before the Executive Magistrate in the evening of 3.2.1997 it is clear that the deceased was speaking in Hindi and, therefore, the statement recorded in Gujarati on the midnight of the date of incident, barely a few hours after the deceased had sustained 90% burn injuries, is required to be read in that context. In fact, in the first statement, the deceased had even stated that she was brought to the hospital by her neighbours, whereas according to the accused and even as per the dying declaration recorded on 3.2.1997, it was the accused who had taken the deceased to the hospital in the evening of 1.2.1997. We are, therefore, of the view that the dying declaration given by the deceased before the Executive Magistrate two days after the incident at 8.05 P.M. on 3.2.1997 in Hindi has to be preferred to the sketchy statement in Gujarati recorded just a few hours after the incident in which the deceased had suffered 90% burn injuries. As per the said dying declaration recorded between 8.05 and 8.35 P.M. on 3.2.1997, the deceased had stated in Hindi as under :- "When this incident occurred, there was a quarrel with my mother-in-law. My husband had gone for work at 11.00 AM and he returned at 4.00 PM. On return, my husband had beaten me up and my mother-in-law was quarrelling. My husband beat me up with force after stating - "you have not given any happiness to my mother". On account of the said beating, my ribs were hurting. Thereafter I had gone to make tea. Before that, my husband had quarreled with me. The stove which was lying there had turned sideways and some kerosene had come out and in that snatching, the kerosene fell on my saree and blouse. When my husband was beating me up, my mother in law had gone out of the room. She (mother in law) stated that "when you die, my son can marry. Whatever dowry you have brought, you yourself have enjoyed and I have not got anything out of it." Before the stove went in flames, there was a match stick in my hand and two-four match sticks were kept by my husband. At that time because my saree caught fire, my saree and blouse got burnt up and my husband made an attempt to extinguish the fire with a small napkin and also poured water on me and then brought me to the hospital. My marriage took place on 21.11.1996 and from then onwards my mother-in-law was quarreling with me on small issues and was mentally harassing me immediately after the marriage. I did not disclose this fact to my parents and my husband had told me 2-3 times that "just as the Ratlam girl was killed, I will murder you in Dahod". He used to give such threats. Every time, my mother-in-law and her son (both the accused herein) were jointly demanding dowry from me. When I gave my first statement, I was not fully conscious and was under mental pressure. When I was in flames, my mother-in-law had come to extinguish fire and was crying and I had shouted loudly. I have studied upto M.Com and my husband has studied upto 11th standard." 11. The aforesaid statement was recorded by the Mamlatdar and Executive Magistrate, Dahod in presence of Dr Shukla who certified that the deceased had given the above statement in his presence; however, the deceased was not in a position to sign the statement or to put thumb impression thereon as she had sustained 90% burn injuries. In his deposition at Exh. 20 also, said Dr. Shukla (PW 3) stated that the deceased was conscious and was fit to give the statement and was responding to verbal questions put to her and was oriented about the time, place and persons who were present before the deceased when she gave the above dying declaration and that the Executive Magistrate, Dr Sharma, the nurse and the scribe (person brought by the Executive Magistrate who was writing down the statement) were present. No relatives of the deceased were present when the deceased gave the said dying declaration. Dr Sharma also gave the certificate to that effect at 8.00 PM on 3.2.1997 (which is at Exh. 21). 12. The above dying declaration recorded by the Executive Magistrate is required to be contrasted with the two statements allegedly given by the deceased before the Investigating Officer at 10.00 AM on 2.2.1997 and on 4.2.1997 (time not specified). As per the statement allegedly given by the deceased at 10.00 AM on 2.2.1997, accused No.1-husband had gone for work at 11.00 AM on 1.2.1997 and the deceased and accused No.2-mother-in-law were present in the quarter. At about 4.30 in the evening, the husband returned home. Hence, the deceased had gone to make tea. At that time, the mother-in-law had spilt kerosene from the primus stove on the floor and after the deceased lighted the match stick to light the gas stove and threw the match stick, the kerosene on the floor caught fire and,