IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Court’s order whether the case is or not approved for reporting (Chapter VIII, Rule 32(2) (b) Description of Case CRIMINAL APPEAL No 845 OF 2001 (Old No. 1820 of 1987) Om Prakash S/o ;Ram Singh & others ….Revisionists. Vs. State of U.P. (Now Uttarakhand) …Respondent. Sri L.K. Tiwari, learned counsels for the appellant. Sri Nandan Arya, learned A.G.A. for the State Date of decision :- 26.03.2007 A.F.R. (approved for Reporting) Not approved for reporting Date:- 26.03.2007 Initials of Judge Note:- Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judge for signature. IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 845/2001 (Old No. 1820/1987) 1- Om Prakash S/o Ram Singh 2- Smt. Shanti Devi W/o Om Prakash 3- Gopal Singh S/o Om Prakash, All residents of Trevani Ghat Road, Rishikesh, P.S. Rishikes, Districtg Dehradun …. Appellants. Versus The State……… …. Respondent Sri L.K. Tiwari, learned counsel for the appellants. Sri Nandan Arya, learnded A.G.A. for the State. Hon’ble Dharam Veer, J: This appeal, U/S 374 of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’), has been preferred against the judgment and order dated 16-7-1987, passed by the Ist Additional Sessions Judge, Dehradun, is Sessions Trial No. 39 of 1986, State Vs. Gopal Singh and others, convicting the appellants Om Prakash, Smt. Shanti Devi and Gopal Singh for the offences U/Ss 306 and 498-A I.P.C. and sentencing each of them to undergo four years R.I. U/S 306 I.P.C. and two years R.I. U/S 498-A of the Indian Penal Code, 1860 (hereinafter referred as ‘I.P.C.’). 2- Briefly stated the prosecution case is as follows:- Deceased Smt. Kamni Devi was married to accused/appellant Gopal Singh on 20-4-1984. Accused/appellant Om Prakash is the father of accused/appellant Gopal Singh and Smt. Shanti Devi is the wife of accused Om Prakash. The accused persons are resident of Triveni Ghat, Rishikesh. According to the prosecution on 3-2-1986 at about 11.45 a.m. Smt. Kamni Devi set herself to fire and ran outside the house. The Mohalla people seeing that Kamni Devi was burning, tried to extinguish the fire and immediately she was taken in a taxi by her mother-in-law Smt. Shanti Devi and other neighbouring people to G.D. Hospital, Rishikesh, where she was admitted for treatment. There in the Hospital, Dr. Mahendra Kumar sent a memo, Ext. Ka. 15 to C.I., Police Station, Rishikesh through the ward-boy regarding the admission of Smt. Kamni Devi who was is a burnt condition. The doctor also sent an information to the Resident Magistrate and Gynecologist of Women Hospital regarding the condition of the patient. The doctor thereafter made enquiry from Kamni Devi and took her statement. Ext. Ka.16 which was noted in the accident injury register of the Hospital and thumb impression of Kamni Devi was also obtained on her statement. The statement was recorded in presence of Ram Lal and Rakesh Prasad Shahi, who also signed the statement. The doctor also made a note at the foot of the statement that at the time he took the statement of Smt. Kamni Devi, she was in a conscious state and there was no impact of any medicine on her. Thereafter the doctor noted the injuries of Smt. Kamni Devi and simultaneously started her treatment. The doctor found following things at the time of medical examination of Smt. Kamni Devi:- 1- Examinee conscious. 2- General condition very low. 3- Pulse 140 per minute very feeble. 4- Blood pressure not recordable. 5- Respiration rate 20 per minute stable. 6- Pupil equal reacting normally. On local examination following things were found:- 80% superficial burns. Per abdomen distended due to pregnancy. In the presence of Dr. Mahendra Kumar, lady doctor Smt. Lilli Rana also examined Smt. Kamni Devi and per abdomen examination 28 weeks funal height vertex presentation. Foetal hurt sound present regular. The note was made by the lady doctor in the same hospital register and copy of the same has been filed as Ext. Ka. 17. In the opinion of the doctor the burn was caused by dry heat, fresh in duration. The doctor also opined that the injuries to Smt. Kamni Devi could have been caused on account of burning from kerosene oil. Patient was referred to Gynecologist Female Hospital, Rishikesh for expert opinion and referred to Doon Hospital Dehradun for observation and further management. 3- On receiving memo, Ext. Ka.15 at the police station, an entry in G.D., was made by H.M. Manorath Prasad at report No., 34 on 3.2.1986 at 12.30 hours The copy of G.D. is Ext. Ka.3. Thereafter Subhansh chand Tyagi, who was posted as S.I. in P.S. Rishikesh, went to G.D. Hospital to enquire the matter. There, he found Smt. Kamni Devi lying in an emergency room in a burnt condition. He found Smt. Kamni Devi in conscious state, so he took her statement and after taking her statement, he reached the place of incident from where he seized the burnt pieces of clothes of Smt. Kamni, regarding which he prepared Fard, Ext. Ka.5 in presence of Suresh Kumar and Bhagat Ram. The seized burnt pieces of Saree, blouse and petticoat (material exhibit-1) of Smt. Kamni Devi were sealed in a packet. The sample of seal is Ext. Ka.6. Thereafter the S.I. Subhash Chand Tyagi returned to police station where he got the case registered in G.D. report No. 38 on 3.2.1986 at 15.30 hours, which was scribed by Head Constable Manorath Prasad. The copy of G.D. is Ext. Ka.4 In the G.D. it is noted Smt. Kamni Devi was found lying on a table of an emergency ward in G.D. Hospital and was in burnt condition and she was being given treatment by doctor. It is also noted that she was conscious and was speaking, so S.I. Sri Tyagi enquired from her on which she told him that she was running in second year of her marriage and her father Shuklal was employed in Railway at Hardwar. She further narrated that her husband was not happy with her and did not speak to her and when her husband spoke to her one or two times she had conceived and later on he started saying that he had conceived illegally and further hated her calling her a “black girl” and also used to say that she had not brought anything to them and for that reason her mother-in-law and her husband treated her with cruelty and in the morning of the date of incident her father-in-law had gone to Haridwar to call her father father and they were telling that they would sent her with her father. She further alleged that in the morning on that day her mother-in-law also beat her and thereafter she was harassed and set herself to fire after pouring kerosene oil over her and then she in falling state ran out on road where people tried to put-out the fire and they brought her to Hospital. Her mother-in-law also accompanied her. 4- Resident Magistrate of Rishikesh also reached to G.D. Hospital and he recorded her dying declaration. Before he took the statement of Smt. Kamni Devi, Dr. Mahendra Kumar had given the certificate, Ext. Ka. 19 regarding the fit mental condition of Smt. Kamni Devi. The doctor noted his opinion on Ext. Ka. 18 lateron. Then the doctors seeing that condition of Smt. Kamni Devi was deteriorating, referred her to Doon Hospital. The case was got registered U/S 498-A I.P.C. in the G.D. and copy of G.D. was sent to circle officer, Rishikesh for Investigation of the matter. 5- Sri Ayodhya Singh (P.W.9), was posted as Dy.S.P. Rishikesh at the time of Incident. He investigated the matter. Smt. Kamni Devi died in the hospital on 8.2.1986 on account of burns which she has sustained on 3.2.1986 at about 11.45 a.m. at her inlaws house. On 10.2.1986 the case was converted to Section 306 I.P.C., regarding which an entry in G.D. at report No. 32 dated 10-2-1986 was made by H.M. Manorath Prasad, copy of which is Ext. Ka.22. The I.O. took statements of the witnesses and prepared the site plan Ext. Ka. 23, of the place of incident. 6- S.I. Dhani Ram (P.W.5), got the information of the death of Kamni Devi through Tulsi Raw ward-boy of Doon Hospital which was entered in G.D. at report No. 39 dated 8.2.1986 at 14.40 hours by Constable Clerk Ram Dayal , the copy of which is Ext. Ka. 9. Thereafter S.I. Dhani Ram reached Doon Hospital where he prepared the inquest report, Ext. Ka.10 of the dead body of Smt. Kamni Devi and the dead body in sealed condition was sent for post mortem through constable Rajvir Singh and Home-Guard Satender Singh, He also prepared sketch lash, Ext. Ka.11, photo lash Ext. Ka. 12, letter to R.I. Ext. Ka.13, and letter to C.M.O., Ext. Ka. 14. 7- Dr. B.C. Ramola (P.W.8) was posted as Medical Officer at Doon Hospital on 9.2.1986. On that day at about 3.00 P.M. he conducted the post mortem on the body of the deceased. He stated that she had died in Doon Hospital on 8.2.1986 at 1.30 noon. On external examination the doctor found the following:- The deceased was of average built body. Rigor mortis was present. Post mortem staining was present, eyes were closed, 1st, 2nd and 3rd degree burns were found all over the body, except head and lower parts of both legs including both feet. Line of redness lesication and signs of reparative process were present. On internal examination the membranes were found congested and brain was found pale and congested, chest was found burnt second to third degree. Lungs were also congested, heart was congested and weight was 180 grams, 1st to 3rd degree burns were present in the walls of stomach and peritoneum was also congested and about two onus fluid was present, bladder was congested and empty, liver congested, weight 900 grams and spleen was also congested and in uterus one female dead foetus was present which was about 32 weeks old. In the opinion of the doctor death was caused due to shock, septicemia and toxemia, which were the result of above burn injuries. The doctor prepared post mortem report, ext. Ka.21. 8- After completion of investigation the I.O. Submitted charge sheet, Ext. Ka. 24, against the present appellants as well as km. Rani, sister of accused Gopal Singh, who was also made accused in the case. 9- The Chief Judicial Magistrate Dehradun, vide his order dated 1-5-1986 committed the case to the court of Sessions for trial. 10- The 1st Addl. Sessions Judge, Dehradun framed charges U/Ss 306 and 498-A I.P.C. against accused Om Prakash, Gopal Singh, Smt. Shanti and Km. Rani. They pleaded not guilty and claimed to be tried. 11- The prosecution, in order to prove its case, examinaed in all nine witnesses, viz. Shuk Lal, P.W.1, the father of the deceased Smt. Kamni Devi, S.I. Subhash Chand Tyagi, P.W.2, who got the case registered at P.S. Rishikesh, Bhagat Ram, P.W.3, the next door neighbour of the accused, Ram Kishore, P.W.4, the brother of the deceased, S.I. Dhani Ram, P.W.5, who prepared the inquest report of the dead body of the deceased and other papers and sent the same for post mortem, P.W.6, Dr. Mahendra Kumar, who initially medically examined the deceased and took her dying declaration, P.W.7, Sri R.K. Arora, the Resident Magistrate, who took dying declaration of the deceased, PW.8 Dr. B.C. Ramola, who conducted post mortem on the dead body, and PW.9 Sri Ayodhya Singh, A.S.P. who investigated the matter. 12- The accused persons in their statement U/S 313 Cr.P.C. have denied the prosecution allegations and stated that witness Bhagat Ram wanted to grab their shop and for this reason false case has been concocted against them. However, no oral or documentary evidence has been produced in the defence. 13- On appreciation of evidence on record and having heard learned counsel for the parties, the learned Sessions Judge found the accused/appellants Om Prakash, Smt. Shanti Devi and Gopal Singh, guilty of the offences punishable U/Ss 306 and 498-A I.P.C. and accordingly convicted and sentenced each of them to undergo 4 years R.I. U/S 306 I.P.C. and 2 years R.I. U/S 498-A I.P.C. However, the fourth accused Km. Rani was found not guilty of the charges U/Ss 306 and 498-A I.P.C. leveled against her and she was acquitted accordingly. 14- Felling aggrieved from their conviction and sentences, the accused/appellants Om Prakash, Smt. Shanti Devi and Gopal Singh have come up in appeal before this court. 15- I have heard Sri L.K. Tiwari, learned counsel for the appellants and Sri Nandan Arya, learned A.G.A. and perused the record. 16- It is pertinent to note herein that the most important piece of evidence in the instant case is the dying declaration of the deceased Smt. Kamni Devi. The incident is said to have taken place at about 11.45 a.m. on 3.2.1986 at the house of the accused/appellants situate in Triveni Ghat, Rishikesh when the deceased Smt. Kamni Devi set herself to fire and after setting herself to fire she ran outside the house. The Mohalla people seeing Kamni Devi burning, tried to put-out the fire and some of them threw their clothes on her and immediately she was taken in a taxi by her mother-in- law the accused Smt. Shanti Devi and other neighbouring people to G.D. Hospital, Rishikesh, where she was admitted for treament. Dr. Mahendra Kumar (P.W.6), who was posted in the G.D. Hospital, sent information ( Ext. Ka.15) of the incident to the police through the ward-boy. He also sent Information to Resident Magistrate and Gynecologist of Women Hospital regarding the condition of the patient. At the initial stage Dr. Mahendra Kumar took the statement of Smt. Kamni Devi in question answer form, which is Ext. Ka. 16. The said statement of Smt. Kamni Devi is as follows:- “Name of Patient -Kamni Devi. rqEgkjk D;k uke gS\ & dkehuh nsch rqEgkjs ifr dk D;k uke gS\ &xksiky rqEgkjh mez fdruh gS\ & 19&20 o"kZ rqEgkjk irk D;k gS\ & f=os.kh ?kkV] _f"kds’k rqe dSls tyh\ ekWth us eq>s lqcg ekjk FkkA ifr eq>ls cksyrk ugha gSA llqj esjs firk dks cqykus x;s gSaA eS xHkZorh gwWA esjs ifr us dgk fd xHkZ fdlh vkSj ls gSA rqEgsa rqEgkjs ?kj Hkst nsxsaA rks eSus viuh mij feV~Vh dk rsy fNMd vius vki vkx yxk yhA rqEgsa dqN vkSj rks ugha dguk gS\ esjs firk dks cqyk nks] HkS;k dks Hkh cqyk nksA 1- g0 jkeyky 2& g0 jkds’k izlkn lkgh uke jkeyky iq= nschnkl iq= Jh jktsUnz izlkn lkgh _f"kjke dk edku vkn’kZ [kknh xkze m|ksx deh’ku xzke _f"kds”kA 1& ekyoh; ekxZ] _f"kds”k R.T.I. of Kamni Devi Attested Sd/ Dr. M.Kumar 3.2.86 The above statement was recorded by me in presence of two witnesses given above when the patient was fully conscious and not under the effect of any drug. Sd/ Dr. M.Kumar, 3.2.86” 17- The second Statement before death of Smt. Kamni Devi was taken by S.I. Subhash Chand Tyagi(P.W.2), who had reached at the G.D. Hospital, after receiving the information sent by Dr. Mahendra Kumar. This witness has made mention of the statement of Smt. Kamni Devi in the G.D. No. 38 at 15.30 hours on 3.2.1986, the relevant portion of the G.D. is as under:- ** eS ,l0vkbZ0 bl eseks dh tkWp gsrq Fkkus ls jokuk gksdj ljdkjh vLirky _f"kds”k ij igqWpk rks ogkW ij bejtsUlh :e esa eq>s Jherh dkfeuh nsoh est ds mij tyh gqbZ voLFkk esa ysVh gqbZ feyh vkSj MkDVj mldk mipkj dj jgs Fks vkSj og gks”k gokl esa Fkh rFkk cksy jgh FkhA eSus mlds tyus ds fo"k; esa mlls iwNrkN dh rks mlus cryk;k fd esjh ’kknh dks nwljk lky py jgk gSA esjs firk lq[kyky jsyos esa gfj}kj esa dk;Z djrs gSaA esjk ifr eq>ls ukjkt jgrs gSA rFkk cksyrk ugha FkkA ,d nks ckj eq>ls cksyk rks mlls esjk xHkZ jg x;kA fQj mlus eq>s ;g dguk 'kq: fd;k fd rsjk og gjke dk xHkZ gS] eq>s dkyh&dkyh dgdj Hkh uQjr djrk Fkk vkSj dgrk Fkk fd rw vius cki ls D;k ykbZA rsjs cki us gesa dqN ugha fn;k vkSj blh dkj.k esjh lkl vkSj esjk ifr eq>s rWx djrs FksA vkt lqcg esjs llqj esjs cki dks cqykus ds fy;s gfj}kj x, gSa vkSj dg jgs Fks fd rsjs cki ds lkFk rqedks Hkst nsxsaA vkt lqcg esjs ekW th ¼lkl½ us eq>s ekjk FkkA blds ckn eSaus rWx vkdj xqLls esa yxHkx ikSus ckjg cts jlksbZ esa vius mij feVV~h dk rsy Mkydj vkx yxk yh FkhA vkx yxkus ds lkFk eSa fxjrh iMrh gq;h ckgj lMd ij vk xbZ] tgkW ij yksxksa us diMas Mkdj esjs ‘’kjhj ij yxh vkx cq>kbZ rFkk eq>s vLirky ys vk;sA ml le; esjh lkl ?kj ij ekStwn Fkh] og Hkh yksxksa ds lkFk eq>s ysdj vLirky vkbZ FkhA** 18- The third dying declaration of deceased Smt. Kamni Devi was recorded by Sri R.P. Arora (P.W.7) on 3.2.1986 itself. This statement was also recorded in question-answer form, which is Ext. Ka.20. The said dying declaration is also reproduced as below:- “ Dying declaration of Smt. Kamni W/o Sri Gopal Singh, aged about 20 years, R/o Triveni Ghat. Place- S.P.S. Hospital, Time = 1-05 P.M. iz'u& vki dSls tyh\ mRrj& vius vki tyhA feVV~h dk rsy vius mij vius vki fNMd dj tyhA iz”u vkius ,Slk D;ksa fd;k\ mRrj& nks lky ls ijs”kku FkhA vkneh dgrk Fkk fd rqe dkyh gksA blhfy, ,Slk fd;kA iz”u-vkidks dqN vkSj dguk gS\ mRrj- esjs ikik th dks cqyk nksA vkxs iqu% dgk fd eSa dqN vkSj dguk pkgrh gwWA mlus vkxs crk;k fd esjh ekWth ¼lkl½ us vkt eq>s ekjkA lkl us ekjrs gq, ;g Hkh dgk rqEgsa rqEgkjs ?kj Hkst nksxsaA ifr us ;g Hkh dgk fd tks cPPkk rqEgkjs isV esa gS og esjk ugha gSA esjs llqj] esjs firk th dks cqykus x;s gSA g0 vkj0,e0 _f"kds’kA R.T.I. of Smt. Kamni W/o Sri Gopal Singh. 3-2-86 eSusa c;ku ysus ls iwoZ Jherh dkeuh iRuh Jh xksiky flag dks voxr djk fn;k Fkk fd os c;ku nsus ds le; fcuk fdlh tksj noko esa gSA ;g c;ku mUgksaus eq>s vdsys esa vkSj LorU= :Ik ls fn;k gSA iqfyl foHkkx dk Hkh dksbZ c;ku nsrs le; mifLFkr ugha FkkA g0 vkj0 ,e0 _f"kds’k 3-2-86 A** Dr. Mahendra Kumar also appended following certificate on the above dying declaration of Smt. Kamni Devi- “Certified that Kamni Devi is fully conscious and not under the effect of any drug and can give her statement.” 19- Learned counsel for the appellants first of all argued that the deceased Smt. Kamni Devi had Sustained 80% superficial burns and she was not in a position to given any statement and the alleged dying declarations have been prepared with the connivance of police. He also submitted that proper procedure was not followed in recording the dying declaration by the doctor as well as by the Resident Magistrate, therefore the same have no relevance in the eyes of law and the conviction of the appellants cannot be based on the said dying declarations. 20- I find no substance in the submission raised by the learned counsel for the appellants. It is the clear cut case of the prosecution that immediately after Smt. Kamni Devi set herself to fire and came out of her house in a falling state, seeing her ablaze, the Mohalla people tried to put-out the fire and immediately took her to Hospital in a taxi. She was conscious and was fit to give statement. Dr. Mahendra Kumar (P.W.6), who was present in the Hospital when Smt. Kamni was admitted there in an injured condition, has given the certificate that Smt. Kamni Devi was fully conscious and was not under the effect of any drug and can give her statement. This witness has recorded the dying declaration at the initial stage and he has proved the said dying declaration by giving his on oath statement. The doctor has noted the statement in the hospital register and the copy of which has been proved by him as Ext. Ka.16. Further S.I. Subhash Chand Tyagi (P.W.2) on receiving information, Ext. Ka.15, sent by Dr. Mahendra Kumar, reached the Hosptial and Smt. Kamni Devi was interrogated by him and she also narrated the incident to him, the mention of which was made by him in the G.D. report No. 38 at 15.30 hours the same day, i.e. 3.2.1986. This witness has proved the copy of the G.D. (Ext. Ka.4) and the entry made in it with regard to the statement of Smt. Kamni Devi. 21- The Resident Magistrate was also informed by Dr. Mahendra Kumar and he also reached in the hospital the same day, i.e. 3.2.1986 and recorded the dying declaration of Smt. Kamni Devi. The Resident Magistrate, Sri R.P. Arora, P.W.7, has proved the dying declaration, Ext. Ka. 20 by giving on oath statement. He has deposed that on 3.2.1986 he had taken the statement of Smt. Kamni. He has stated that he went to G.D. Hosptial Dehradun to take the dying declaration. Before taking her statement, he had inquired from the doctor as to whether she was in a fit state of mind to give statement or not and obtained certificate Ext. ka.19 on the statement and thereafter he proceeded to record her statement. He has further deposed that he himself had inquired from Kamni Devi whether she is under any duress or not and Smt. Kamni Devi had given her statement to him freely and no police personnel or any other person was with him at the time of giving her statement. In cross-examination this witness has alleged that he did not know Smt. Kamni Devi from before. No suggestion was given to this witness as to why he will give false evidence against the accused persons. To me, this witness seems to be an independent witness and there is no reason to disbelieve his deposition. 22- The another glaring aspect in the above noted dying declarations is that the deceased had given the similar cause of incident. According to her, her husband accused Gopal Singh did not like her and used to tell her “black-complexioned lady” and for this reason he did not use to talk to her and when he came to talking terms with her, she became pregnant from him and knowing this fact, the accused Gopal Singh began to harass her by telling that she has conceived the pregnancy from some other person. The deceased also told that her husband and mother-in-law used to harass her for not bringing anything in the dowry from her father and used to tell her to send to her father’s house to live there forever. Further she deposed that on the day of incident, her father-in-law had gone to call her father and soon before setting herself to fire, her mother-in-law had assaulted her. 23- From perusal of the dying declarations and the evidence of the witnesses in this regard seem to be independent and natural and are worthy of placing full reliance. I find no procedural defect in recording the dying declaration by the Dr. Mahendra Kumar (P.W.6) and Resident Magistrate, Sri R.P. Arora, P.W.7. In my opinion the facts and circumstances of the case leads to only irresistible conclusion that the dying declarations are a genuine documents and legally acceptable in evidence. 24- Learend counsel for the appellant also argued that the deceased had herself committed suicide by pouring kerosene oil at her body and she was not abetted to suicide by any of the accused/appellants. It was also submitted that the deceased was not treated with cruelty by the appellants and the prosecution has not brought any evidence in this regard on record. 25- Before dealing with the above submissions of the learned counsel it will be relevant to go thought the definition of abetment.