Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal no. 94 of 2002 Smt. Rahasan ………..Appellant versus State of Uttaranchal ……Opposite Party ……………………….. Mr K.S.Rawal, holding Brief of Mr. Sidhartha Singh, Advocate for the appellant. Mr. Amit Bhatt, Government Advocate for the State / respondent. JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble U.C. Dhyani, J. Per: U.C. Dhyani, J In the instant case, the criminal law was set into motion by one Bashir Khan s/o Nizam Ali r/o Ward No.10, Kichha who had lodged a complaint with the Inspector In- charge Kotwali, Kichha, District Udham Singh Nagar on 30.06.2000 stating that his daughter Smt. Bhuri was married to Ahmad Hasan s/o Shaukat r/o Ward No.17 Kichha some 09 months ago. Her husband Ahmad Hasan and her mother-in- law Rahasan w/o Shaukat demanded dowry and also used to commit marpeet with her. Smt. Bhuri used to complain about 2 the same but the father persuaded his daughter to reconcile. On 30.06.2000 at around 4:00 p.m. her mother-in-law blamed her for having illicit relations with another man. The mother- in-law poured kerosene oil and set her on fire. On her hue and cry the neighbours tried to come to her rescue and brought her to the Government Hospital Kichha. She was referred to Bareilly (higher centre). But she breathed her last on way to Bareilly. Her dead body was lying at Government Hospital, Kichha. 2. On the basis of this complaint (Ext. Ka-1) chik FIR (Ext.Ka-9) was prepared and crime no. 131/2000 was registered against the accused Ahmad Hasan and Rahasan in respect of offence punishable under Section 304-B IPC. Investigation of the case was taken up by Ms. Vimla Gunjiyal, Circle Officer. She inspected the spot, prepared site plan (Ext. Ka-12), took the statements of the witnesses and submitted charge-sheet (Ext.Ka-10) against the accused persons. The copies of the prosecution documents were provided to the accused persons and the case was committed to the Sessions Judge, Udham Singh Nagar, who conducted the trial. 3. Charges for the offences punishable under Sections 304-B IPC, 498-A IPC and Section ¾ Dowry Prohibition Act were framed against the accused Rahasan, who pleaded not guilty and claimed trial. No reference of the charges against Ahmad Hasan, husband of the victim, is being made here as the learned trial court has exonerated him of the charges levelled against him. Prosecution examined P.W.1 Shabbir, 3 P.W.2 Laddan, P.W.3 Girish Kumar, Tehsildar, P.W.4 Dr. V.D. Joshi, and P.W.5 Dr. M.D. Pande. The genuineness of the documents on record was admitted by learned counsel for the accused (now appellant) before the learned trial court. In defence, D.W.1 Puran Lal and D.W.2 Asghar Ali were examined. 4. The oral and documentary evidence was put to the accused Rahasan under Section 313 Cr.P.C., in reply to which she alleged that the evidence adduced against her is false. She said that while she was away from her residence, her daughter- in-law (Smt. Bhuri) received burns while cooking food. 5. Learned trial court found the accused Rahasan guilty of the offences punishable under Sections 304-B IPC, 498-A IPC and ¾ Dowry Prohibition Act and convicted her accordingly. This Criminal Appeal is directed against the judgment and order dated 23.04.2002 passed by Sessions Judge, Udham Singh Nagar whereby accused / appellant Smt. Rahasan has been convicted under Section 304-B IPC, section 498A IPC and section ¾ Dowry Prohibition Act in sessions trial no. 299/2000 and has been sentenced to 10 years Rigorous Imprisonment, one year’s RI and three months’ RI for these offences respectively. All the sentences were directed to run concurrently. Co-accused Ahmad Hasan (husband) was however, acquitted of the charges framed against him. 6. P.W.1 Shabbir is the father of the deceased Bhuri. He has stated that his daughter Bhuri was married to accused 4 Ahmad Hasan 2 years ago. Accused Ahmad Hasan and Rahasan never demanded dowry. His daughter died of burns. He was not aware who had set her on fire. He got a complaint written by one Iqbal Ahmad. He has acknowledged that it was written in the complaint that so and so poured kerosene oil on her and set her on fire, but he said that this sentence was not spoken (to Iqbal Ahmad). This sentence might have been got written at the instance of other persons. He is illiterate. He has acknowledged his thumb impressions on complaint (Ext. Ka-1). This witness was declared hostile and was permitted to be cross-examined by learned D.G.C.(Criminal). In the said cross-examination, the father of the deceased has said that her daughter was taken to Kichha Hospital. Thereafter she was referred to Bareilly. She breathed her last while going to Bareilly. He has denied any statement having been given to the Investigating Officer. He said that he did not disclose anything to Iqbal Ahmad regarding this incident. He has also denied that the accused persons used to beat his daughter on account of non-fulfilment of dowry. He has denied that he has entered into compromise with the accused persons and that’s why he is telling a lie before the court. He has also denied that he had ever given the statement to the Circle Officer that Rahasan poured kerosene oil on Bhuri and set her on fire. Iqbal Ahmad was not produced as a witness. 7. P.W.2 Laddan also did not support prosecution story like P.W.1 Sabbir. Since both of them had been declared hostile, therefore, their evidence does not help prosecution. Since they had been declared hostile, therefore, the 5 prosecution also got rid of them. P.W.2 Laddan did not know anything about the incident. He denied his statements ever being taken by the Investigating Officer. He did not see Bhuri when she was set on fire. He has also denied that he is not speaking the truth as he has entered into compromise with the accused persons. 8. P.W.3 Girish Kumar, Tehsildar said in his examination-in-chief that he was posted as Tehsildar in tehsil Kichha on 30.06.2000. That day he had recorded the Dying Declaration of Smt. Bhuri w/o Ahmad Hasan r/o Ward No.3 Kichha in Community Health Centre, Kichha. Smt. Bhuri was aged 22 years. The Emergency Medical Officer had examined the victim before her dying declaration was recorded. The doctor had certified that she was in a fit state of mind to give the statement. The doctor provided the certificate in his own handwriting on a paper on which this witness was to record dying declaration. The Tehsildar had said that he had recorded the statement which was given by victim Smt. Bhuri. This witness has acknowledged the dying declaration having been written and signed by him. The said dying declaration has been proved as Ext.Ka-2. The thumb impression of Smt. Bhuri was got affixed on it. When the dying declaration of Smt. Bhuri was recorded, she was again examined by the doctor, who has certified that the deponent was conscious and in a fit state of mind even after giving dying declaration. 6 9. It will be worthwhile to reproduce the dying declaration of Smt. Bhuri for proper appreciation in the light of above testimony of P.W.3 Girish Kumar, Tehsildar : “I was married to Shri Ahmad Hasan nine months ago. My matrimonial house is situated in Ward No.17, Nai Basti, Kichha. My mother-in-law Rahasan while blaming me that I am having affairs outside my marriage set me on fire today on 30.06.2000 at 3:00 p.m. No other member of the family was present there at that time. My husband is also indirectly involved in this (mis)deed. My husband used to commit marpeet with me after pointing out mistakes in my work. My mother-in-law also used to harass me on account of non- fulfilment of dowry. She used to ask me, what have you brought from your home? You have come from a family of paupers. It is true that I have been set on fire by my mother-in-law. These are my statements. Heard and verified”. RHS Thumb impression of Smt. Bhuri 10. P.W.3 Tehsildar Magistrate was cross-examined on behalf of the accused. In the cross-examination he has said 7 that he proceeded from Tehsil to Community Health Centre at 5:00 p.m. on his official vehicle. The distance between tehsil and hospital is 100 meters. First of all he went to the doctor. It was 5:15 p.m. Doctor took him to the bed of the victim who was admitted in General Ward. There were other patients also. When he went to Smt. Bhuri, her parents and relatives were present there. He recorded the dying declaration of Smt. Bhuri between 5:15 p.m. to 5:25 p.m. Smt. Bhuri had sustained burns. Her eyes were open and so was her face. The rest of the body was covered. He has endorsed that Ext. Ka-2 bears the certificate of the doctor as follows: “Certified that Smt. Bhuri is fit for giving Dying Declaration.” Thereafter doctor had put in his signatures. Seal of the Community Health Centre was affixed. Though he asked questions to the victim and obtained her replies but he did not mention the questions and has only mentioned her replies. In other words, the dying declaration of Smt. Bhuri is not in question-answer form. But the replies of Smt. Bhuri came on the questions being asked by P.W.3 Girish Kumar, Tehsildar. Smt. Bhuri was illiterate. 11. P.W.4 Dr. B.D. Joshi of Base Hospital, Almora was posted on 01.07.2000 at Base Hospital, Haldwani. On that day a constable came to him at 3:00 p.m. Dr. M.C. Tiwari was also with this witness. They have conducted autopsy on the body of Smt. Bhuri and found the following ante mortem injuries: 8 1. Anti mortem burns all over body except scalp, sole and lower part of abdomen up to pubic symphyni; 2. Singeing of hairs – scalp, pubic & auxiliary; 3. Blister fluid present at many places. 4. Skin is pealed off from many places. The Cause of death is shock as a result of anti mortem burn injury. The doctor has also found smell of kerosene oil (on her body). P.W.4 Dr. B.D. Joshi has proved autopsy report (Ext. Ka-8) and has said in the cross-examination that the victim had sustained 90% burn injuries. 12. P.W.5 Dr. P.D. Pande of District Hospital Pithoragarh has said that on 30.06.2000 he was posted as Emergency Medical Officer in Community Health Centre, Kichha, U.S. Nagar. That day the dying declaration of Smt. Bhuri w/o Ahmad Hasan was recorded by Tehsildar Kichha Shri Girish Kumar. Smt. Bhuri was aged 22 years. This witness has said that he had found Smt. Bhuri in fit state of mind before her dying declaration was recorded by Tehsildar. She was conscious at that time. An endorsement to this effect was made by the doctor on paper no.15Ka/1. He has acknowledged his handwriting, signatures and seal on this paper. When the dying declaration of Smt. Bhuri was recorded, he again examined her and found her conscious and in a fit state of mind. An endorsement to this effect was made by him at the 9 end of the said statement also. In his cross-examination P.W.5 Dr. P.D. Pande has said that the dying declaration of Smt. Bhuri was concluded at 5:25 p.m. He has also said that when the dying declaration of the victim was recorded no relative of patient or outsider was present there. 13. Two witnesses have been examined on behalf of the accused. D.W.1 Puran Lal Sah denied that Bhuri was admitted to Community Health Centre Kichha on 30.06.2000. But in the cross-examination he has taken a u-turn. He has said that he has brought the emergency register of Community Health Centre, Kichha. There is an entry of 30.06.2000 at Sl. No. 1150 to indicate that Smt. Bhuri w/o Ahmad Hasan r/o Ward No.3, Nai Basti, Kichha was brought at 5:00 p.m. by Ahmad Hasan. She had sustained 90% burn injuries. She was referred to Bareilly as her condition was critical. She was shown ‘brought by’ Ahmad Hasan, her husband (who has been acquitted by the learned trial court). D.W.2 Asghar Ali is the neighbour of Rahasan and Ahmad Hasan. He has said that Ahmad Hasan, Rahasan and Shaukat never demanded any dowry (from Smt. Bhuri). He never saw Smt. Bhuri and Ahmad Hasan quarrelling with each other. On 30.06.2000 at 9-9:30 p.m. when this witness reached his house he came to know that Smt. Bhuri has sustained burns while cooking food. 14. Much emphasis was laid by the learned counsel for the appellant on the words ‘indirect’ and ‘harassed’ figured in the dying declaration. Learned counsel argued before this court that these words could not have been used by the victim. 10 Rightly so, witness P.W.3 Girish Kumar, Tehsildar has acknowledged that these words had not been spoken by Smt. Bhuri. He has said that the import of the reply of the victim was got reproduced by him. A look at the dying declaration would reveal that such words were referred to in the context of her husband Ahmad Hasan but still a closer look at the dying declaration would indicate that the ingredients of ‘dowry death’ are not made out even if the same is presumed to be true. 15. Dying declaration is also a piece of evidence. The appellant alleged to have poured kerosene oil on Smt. Bhuri by holding out that she had illicit relations with other man. Learned counsel for the appellant has agreed during the course of arguments that first two ingredients of offence punishable under Section 304-B IPC have been made out but he was sceptical about the third ingredient. His contention appears to be correct. The evidence on record is insufficient to prove all the three ingredients of Section 304-B IPC. There is no doubt about the fact that Smt. Bhuri died within Seven years of marriage under unnatural circumstances. The blame of having illicit relations with other man was the reason for killing Smt. Bhuri. She was ridiculed by saying that she had came from a family of paupers. This itself does not mean that a demand for dowry was made. 16. Learned counsel for the appellant has also argued that the element of “soon before her death” has not been proved. The contents of dying declaration approve the argument of 11 appellant. It is an admitted fact that she died within nine months of her marriage in unnatural circumstances. Since the demand of dowry has not been established, therefore there is no question of harassing the victim for dowry “soon before death”. It has also been argued on behalf of the appellant that the FIR has been lodged by the father of the victim and he has been declared hostile. Since he has been declared hostile, his evidence cannot be taken into account. His evidence is not binding on the prosecution. Yet another argument of the appellant was that when father and mother of the victim were sitting in the hospital why their evidence was not obtained? Another anomaly was brought to the notice of the Court that P.W.5 Dr. P.D. Pande has said that none of his parents were there at the time of dying declaration. P.W.3 Tehsildar had said that father and mother were there. This appears to be material contradiction. 17. It has also been argued on behalf of the appellant that the dying declaration is not in a question-answer form. True, it was advisable on the part of Tehsildar to have asked questions in question-answer form but if he had not done so, that itself does not diminish the evidentiary value of the dying declaration. The law is crystal clear in this respect. 18. Learned AGA has submitted that the dying declaration recorded in this case inspires full confidence in its truthfulness and correctness. It has intrinsic worth and its reliability can be determined from its tenor and contents. The victim had sustained 90% injuries. In her dying declaration 12 she has alleged that her mother-in-law set her on fire. It is a case of culpable homicide amounting to murder within the four walls of the matrimonial house of the victim. The Tehsildar has scribbled what the unfortunate lady spoke to him. It is in the language of the victim herself except one sentence which the Tehsildar wrote according to his own perception. But the positive aspect of the sentence is that the same pertains to the accused who has been acquitted by the trial court. The Tehsildar otherwise did not employ his own language so as to suggest that it is tutored one. Taking an overall view of perspective of the evidence, it is a case in which the veracity of dying declaration cannot be doubted. This Court is of the view that dying declaration is the last statement by its maker and great caution has to be exercised in considering the weight to be given to this species of evidence. 19. The allegation against the mother-in-law regarding harassment on account of non-fulfilment of dowry is a sweeping one. The immediate cause for committing the crime was her (alleged) relations with another man. If the mother-in- law had spoken the words, “what have you brought from home? You have come from a family of paupers”, the same did not indicate non-fulfilment of dowry. The appellant cannot be convicted on the basis of sweeping generalisations especially when none other family member of the victim (including father) has supported prosecution story. The contents of dying declaration do not fulfil the ingredients of the offence of ‘dowry death’. Even if the said dying declaration is accepted on its face value, no conviction can sustain only on account of 13 that, there being no other evidence. This dying declaration does not pass the test of scrutiny, as envisaged by the Hon’ble Supreme Court in Rajaram vs. State of Rajasthan, AIR 2005 SC 1050. If the appellant is convicted on the sole basis of this dying declaration, it may result in miscarriage of justice. If the poor lady was ridiculed on account of pauperism, that does not means that a demand for dowry was raised. The case does not fit in the scheme of things as contemplated by the legislature while enacting section 304B IPC and Dowry Prohibition Act. 20. There is yet another aspect for not believing the prosecution story. Appellant Smt. Rahasan as on today is an old lady of 81 years, as disclosed by learned counsel representing her. The story relates back to the year 2000. Smt. Rahasan was around 70 years old then. The victim was a young lady on the date of incident. According to the dying declarations of Smt. Bhuri, no other member of the family was present when her mother-in-law (Smt. Rahasan) set her on fire on the fateful day at 3:00 pm. It is a basic human instinct that no one gives up easily when it comes to taking away one’s life. Smt. Bhuri must have offered resistance. She must have tried to repel the move of mother-in-law and in natural course, should have succeeded in protecting herself. But alas, she could not do it and succumbed to her mother-in-law’s moves. The story does nto appear to be probable. It appears that (a) either more than one person were there or (b) she herself poured kerosene on her, and lighted the match in order to commit suicide. Unfortunately, the prosecution story is on 14 different pedestal and hence the guilt against Smt. Rahasan is not proved beyond reasonable doubt. 21. The appeal merits success and is accordingly allowed. The judgment and order passed by learned trial court on 23.04.2002 is hereby set aside. The conviction and sentence awarded by the learned trial court to the appellant is thus quashed. Appellant Smt. Rahasan is on bail. She need not surrender. Let the lower court record be sent back. (U.C. Dhyani, J) (Barin Ghosh, C.J.) Dated : December 29, 2011 Sanjay