Reserved Judgement IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 302 of 2003 Dated of Decision: .06.2010 Bhagwati Prasad Pant …Appellant Versus State of Uttaranchal …Respondent CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. Pankaj Purohit, learned counsel for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Nirmal Yadav, J. Present appeal has been filed by accused-Bhagwati Prasad husband of Vinita Devi (since deceased) who stood trial along with his father Sadanand and mother Suresho Devi for the offence punishable under Sections 498-A, 302 of the Indian Penal Code, 1860 (for short I.P.C.) and read with Section 3/4 of the Dowry Prohibition Act. However trial court after taking into consideration the evidence on record acquitted accused Sadanand and Suresho Devi, but accused Bhagwati Prasad has been convicted and sentenced to life imprisonment under Section 302 of the I.P.C. and a fine of Rs. 5,000/-. In default of payment of fine, he has further been ordered to undergo one year rigorous imprisonment. He has also been convicted under Section 498-A of the I.P.C. and sentenced to one year rigorous imprisonment and a fine of Rs. 5,00/-. In default of payment of fine, he has further been ordered to undergo three months’ rigorous imprisonment. Under Section 3/4 of the Dowry Prohibition Act, he has been sentenced to undergo six months’ rigorous imprisonment and a fine of Rs. 5,00/-. In default of payment of fine he has further been ordered to undergo one month’s rigorous imprisonment vide judgment and order-dated 2 13.10.2003 in Sessions Trial No. 187 of 2000. All the sentences have been ordered to run concurrently. Brief facts of the case are that the marriage of Vinita Devi (deceased) was performed with Bhagwati Prasad in the month of March 1993, however, she was being harassed by her husband Bhagwati Prasad, mother-in-law and father-in-law for bringing insufficient dowry. Mother of Vinita Devi (deceased) had been satisfying their demand by giving cash and other articles demanded by them as per her capacity. Few days prior to the incident her husband Bhagwati Prasad and his family members made a demand of Rs. 20,000/- but Vinita (deceased) did not pay any heed to the demand. However, when she was harassed by them, she disclosed about the demand to her mother who went to the house of the accused to advise him and expressed her inability to fulfill the demand. The accused continued to harass Vinita Devi and Vinita Devi informed her mother that she was apprehensive of her well being in her in- laws house. On 12.05.2000 at about 7:00 a.m. Bhuppi (PW-2) sister’s son of Godambari (mother of deceased) who was present at the house of Vinita Devi (deceased) on that day came and informed Godambari Devi that Vinita Devi was given beatings at her in-laws house and Vinita had asked him to call her mother immediately. On receipt of the information from Bhuppi, Godambari Devi along with her elder daughter Anita went to the house of accused Bhagwati Prasad at village Misserwala. But none was found present in the house. She was informed by the neighbourer that Vinita was taken to the hospital in a burnt condition. Thereafter she searched for Vinita Devi in Dehradun hospital and after making some efforts she came to know that Vinita Devi was admitted in Jolly Grant Himalayan Hospital. She found Vinita Devi lying in a serious 3 burnt condition and there appeared to be no chances of her survival. She submitted a written report (Ex. Ka-1) to Station House Officer, Doiwala, Dehradun on 14th May 2000. Complainant Godambari Devi stated in her complaint that there was delay in reporting the matter, as she was busy in looking after her daughter Vinita Devi whose condition was serious. She further stated that even on earlier occasion i.e. 22.11.1993 Vinita Devi was given beatings by her in-laws and she was medically examined at that time. Medical report was submitted along with the complaint. On the basis of written complaint (Ex. Ka-1) Chick F.I.R. (Ex. Ka-19) was recorded on 14th May 2000 at 1:20 p.m. in Police Station Doiwala. G.D. report no. 20 was also recorded at 1:20 p.m. copy of which is Ex. Ka-20. On 12th May 2000 when Vinita Devi received burn injuries, she was admitted in Himalayan Institute Hospital Jolly Grnat by her husband where she remained under treatment up to 14th May 2000 and she expired at 5:05 p.m. As per the admission card and treatment details, which is on record and produced by Manoj Bahuguna (PW-12) P.R.O. of Himalayan Institute of Jolly Grant, Vinita Devi was admitted in the hospital at 8:20 a.m. on 12.05.2000 with 100% third degree burns. As per the history given in the admission card body of the patient was smelling of kerosene, her general condition was very low but she was conscious, oriented and responding to oral commands. Pulse and blood pressure were not recordable on account of surface burns. The patient had second and third degree burns over the whole body i.e. from the top of the head to toe. Face, neck, trunk, extremities were burnt from both sides. Skin was peeling from most of the places. She was brought by her husband Bhagwati Prasad and one Makan Singh. Her general condition remained poor up to 6:30 p.m. on 12.05.2000 while she was responding to verbal commands. At 8:30 p.m. she is reported to be conscious and oriented. At 4 10:00 p.m. also she is stated to be conscious and oriented and in between this period i.e. at 9:15 p.m. to 9:22 p.m. her statement was recorded by the S.D.M. Rishikesh. She remained slightly restless at 2:00 a.m. on 13.05.2000 and than at 5:00 a.m. she became drowsee and was not responding to any command, though seemed to comprehend. Her general condition remained poor up to 1:40 p.m. on 13th May 2000 but she was conscious and oriented. On 13th May at 4:30 p.m. her condition became poor and she was quite restless. On that day the relatives were asked to arrange for blood but they were unable to arrange the blood. On 14th May 2000 at 12:30 her general condition became very poor and she was in distress. It appears that patient’s attendant refused to bring medicines also saying that it was not their responsibility. At 3:40 p.m. on 14th May 2000 her condition deteriorated and she started gasping. At 4:50 p.m. she suffered a cardiac arrest and in spite of efforts made by the doctor she could not be revived, therefore, she was declared dead at 5:05 p.m. The doctor searched for the patient’s attendant but no body was found to be informed about her death and therefore at 6:30 p.m. police was informed and the body was kept in mortuary. G.D. No. 16 (Ex. Ka-21) in this respect was recorded in the police station Doiwala and the dead body was sent for the postmortem. Postmortem on the dead body of Vinita Devi was conducted by Dr. S.P. Maurya and Dr. Sunil Tyagi on 15th May 2000 at 4:45 p.m. and postmortem report is Ex. Ka-2. As per the postmortem report, body was having 90-92% deep burns involving the whole body except the genitals, some parts of right thigh and right hand. Lines of redness was present between burnt area and spared skin singeing of scalp and pubic hair was present. Face, nose and ears were burnt. On internal examination brain, both the lungs, liver, pancreas, spleen and kidney were found congested. The stomach was empty and 5 congested. The doctor categorically stated that Vinita Devi was found having deep burn injuries. In the cross examination the doctor stated that smell of kerosene would normally remain up to 24 hours after receiving the burn injuries. Cause of death is stated to be due to ante mortem burn injuries. During the period injured Vinita Devi was admitted in the hospital and her statement (dying declaration) was recorded by Alok Singh (PW-10) the S.D.M., Rishikesh at 9:15 p.m. on 12.05.2000 in Himalayan Hospital in the presence of Dr. Hema Saxena (PW-5). As per Alok Singh (PW-10), he was informed at about 8:30 p.m. on 12.05.2000 that the dying declaration of Smt. Vinita Devi who was admitted in the Himalayan Hospital was to be recorded. He went to the hospital and recorded her statement (Ex. Ka-16). She made the following statement:- “Today at 8:00 a.m. my husband poured kerosene oil and set me on fire under the influence of liquor. At that time my son and daughter aged about 5-6 years were present in the room of my house. On the previous night I had a quarrel with my husband as he was missing from the house for the last two days. My father- in-law and mother-in-law had been provoking my husband against me. The children are with my husband.” S.D.M. Alok Singh (PW-10) categorically stated that he had verified about the mental condition of Vinita Devi from Dr. Hema Saxena (PW-5) who was present through out during the time of recording the statement and she had told him that Vinita Devi was fit to make statement. He further stated that he had also satisfied himself that Vinita Devi was fit to make statement. He further stated that whatever Vinita Devi stated, was recorded by him correctly. He had readover the recorded statement to Vinita Devi and she had put her thumb impression 6 in token to its correctness. Her thumb impression was attested by him. S.D.M. Alok Singh (PW-10) had started recording the statement at 9:15 p.m. and finalized the same at 9:22 p.m. on 12.05.2000. The statement was kept in a sealed envelope, which is Ex. Ka-17 along with the letter to the C.J.M. When cross- examined this witness categorically stated that at the time of recording the statement (dying declaration) except injured Vinita Devi and Dr. Hema Saxena (PW-5) none else was present. The investigation was initially conducted by Sub Inspector Ved Pal Tomar (PW-7) and thereafter it was taken over by Circle Officer Anil Kumar Yadav (PW-6). During the investigation the Investigating Officer took into possession burnt clothes of Vinita Devi vide memo Ex. Ka-5 from the Verandah. He also took into possession one blanket, one half burnt bed sheet and one pair of ladies Chappal vide Ex. Ka-6. From the kitchen, the Investigating Officer also took into possession a ten liter black plastic Can containing about eight liter of kerosene oil, one matchbox, few pieces of bangles vide memo Ex. Ka-7. One blue pant on which burnt pieces of clothes of Vinita Devi were sticking was also taken into possession vide memo Ex. Ka-8. Scaled site plan (Ex.Ka-9) of the place of occurrence was prepared and the accused were arrested. On completion of the charge sheet, final report under Section 173 of the Cr.P.C., was put in the court. The accused were charge sheet for commission of the crime under Section 498-A, 302 of the I.P.C. read with Section 3/4 of the Dowry Prohibition Act to which they pleaded not guilty and claimed trial. On conclusion of prosecution’s evidence, statements of the accused were recorded under Section 313 of the Cr.P.C. 7 They denied all the allegations of prosecution and claimed innocence and false implication. Accused Bhagwati Prasad stated that when his wife received burn injuries, he was sleeping. On hearing the shouts, he woke up and came out and found that his two children Ashish and Neha, Indra Bhandari and his neighbour Smt. Aketa Verma, Ashok Kumar, Ishwar and Tara Chand Mamgai were present. He brought blanket and put the same on his wife to save her. In defence accused produced Smt. Aketa Verma DW-1 whose house is situated in front of the house of accused, Tara Chand Mamgai DW-2, Makan Singh DW-3, Bhagwan Singh DW-4 and Neha Dhyani DW-5 his daughter. We have heard Mr. Pankaj Purohit, learned counsel for the appellant, Mr. S.S. Adhikari, learned A.G.A. for the State and perused the entire material available on record. Learned counsel for the appellant submitted that prosecution case is solely based on the alleged dying declaration (Ex. Ka-16). There is no other evidence to corroborate and support the dying declaration, rather defence witnesses produced by the accused altogether belies the dying declaration. Learned counsel for the appellant referred to the statement of Aketa Verma DW-1 whose house is situated in front of the house of the accused. According to Aketa Verma DW-1 a quarrel had taken place between Vinita Devi and Bhuppi PW-2 (son of her mother’s sister) on the previous day i.e. 11.05.2000 at 4/5 p.m. who was staying with her for the last two months. However accused Bhagwati Prasad was not present at the time of the said quarrel. She further stated that on the day of occurrence at about 7:30 a.m. Vinita Devi was present in the verandah of her house along with her two children and suddenly she put herself on fire and thereafter she shouted. Thereupon this witness took one bed sheet from her house and put the same over Vinita Devi 8 to extinguish the fire. Meanwhile accused Bhagwati Prasad also came out from his room and then he also brought one blanket from inside to extinguish the fire. She further stated that Indra Bhandari Gram Pradhan of village Lachhiwala had also reached the spot and thereafter many other persons also arrived. According to her, she enquired from Vinita Devi as to why she had put herself on fire, and she replied that she had herself put fire but she will implicate those persons. Thereafter Vinita Devi was removed to the hospital by Bhagwan Singh DW-4 on his motorcycle. While she was sitting on the motorcycle she asked accused Bhagwati Prasad to get money from the almirah and asked him to reach hospital soon. Thereafter she asked this witness to show her the mirror and asked whether she will be cured or not. In the cross-examination the witness stated that accused Bhagwan Singh alone had taken Vinita Devi to the hospital and none accompanied her. The witness admitted that she is making the statement for the first time in the court and she did not disclose the above facts as deposed by her before any authority on earlier occasion after the occurrence. She denied that she had made statement before the police under Section 161 of the Cr.P.C. to the effect that she did not know anything about the occurrence, as she had no concern with the accused and the injured. The witness further admitted that she was the first person who came to know about this incident but she did not inform any authority nor gave anything in writing. She denied the suggestion that she was deposing falsely being the neighbour of accused Bhagwati Prasad. However, she admitted that she had close relations with Bhagwati Prasad and therefore she knew about the internal arrangement of the house of the accused. She further denied that Vinita Devi did not like the relation between her and Bhagwati Prasad, therefore both of them used to quarrel on this account. 9 Though this witness could be the best person to depose about true facts with regard to the incident, however, a careful scrutiny of her statement, it appears that her statement is totally biased in favour of the accused. She admitted that she had close relation with Bhagwati Prasad, which was not liked by Vinita Devi. As per this witness, both the children of Vinita Devi were present along with her, when she had put herself on fire. If that was so, the children would have certainly tried to save their mother. Whereas Neha Dhyani DW-5 daughter of deceased and Bhagwati Prasad states that when her mother received burn injuries, her father and Aketa Verma were present. She further reiterates in paragraph-2 of her statement that at the time when her mother received burn injuries, her father was present. In the cross-examination Neha Dhyani DW-5 stated that the day when her mother had received burn injuries; she was sleeping and woke up only on hearing the shrieks of her mother. She also admitted in the cross-examination that she was making statement on the asking of her grand father. From the statement of this witness it is more than clear that accused Bhagwati Prasad was present when Vinita Devi had received burn injuries while Neha Dhyani as well as her brother Ashish were sleeping. They woke up after hearing the shrieks and shouts of her mother. Another witness produced by accused in defence Makan Singh who stated that he had heard noise near the house of Bhagwati Prasad while he was going for his duties. He saw that Bhagwan Singh was taking Vinita Devi to the hospital. Later on he along with accused Bhagwati Prasad had gone to the hospital. Initially she was removed to the hospital at Doiwala fromwhere she was taken to Himalayan Institute Hospital, Jolly Grant, Dehradun. This witness stated that after the arrest of accused BhagwatI Prasad on 12.05.2000, he was looking after the treatment of Vinita Devi as accused Bhagwati 10 Prasad had given money to him. This witness in the cross- examination admitted that he was the colleague of Bhagwati Prasad and both were working in the Forest Department. He denied the suggestion that he was deposing falsely in order to save accused Bhagwati Prasad being his colleague and neighbourer. The witness further admitted that he did not inform the police about the burn injuries having been received by Vinita Devi. From the statement of this witness, it is clear that he had not seen occurrence, however, he was deposing in favour of accused Bhagwati Prasad being his colleague. Bhagwan Singh is the person who is stated to have removed Vinita Devi to the hospital on his motorcycle. As per this witness, Vinita Devi disclosed to him that she would implicate the accused. From the statement of this witness, it is apparent that this witness is trying to save the accused and his statement appears to be quite exaggerated as he says that Vinita Devi disclosed to him that she will implicate those persons, however, this witness does not specify as to which person Vinita Devi wanted to implicate. Admittedly Bhagwan Singh belongs to the village of the accused, thus he is trying to help him. Moreover as per the medical evidence, Vinita Devi had received 90-92% burn injuries and she must be in a very depressed condition and in such a situation it does not sound reasonable or plausible that she would be making such statements to Aketa Verma or Bhagwan Singh to falsely implicate the accused. Both the witnesses appear to be making statement under the influence of accused Bhagwati Prasad. On the other hand learned A.G.A submitted that in order to prove its case prosecution produced complainant Godambari Devi PW-1, mother of deceased, Bhaskar alias Bhuppi PW-2, sister’s son of Godambari, Smt. Anita PW-4, sister of deceased. Complainant Godambari PW-1 and Smt. 11 Anita PW-4 have categorically stated that Bhaskar alias Bhuppi PW-2, cousin brother of Vinita Devi was present at the house of accused Bhagwati Prasad on 12.05.2000 who came and informed Vinita’s mother that Vinita Devi was given beatings and she was calling her. Thereupon Godambari Devi along with her daughter Smt. Anita went to village Misserwala and reached the house of accused at 9:00 a.m. but by that time Vinita Devi was already removed to the hospital. Thereafter they searched for Vinita Devi and after making efforts came to know that she was admitted in the Himalayan Institute Hospital, Dehradun. Both of them reached the hospital where they found Vinita Devi in a very serious burnt condition. Smt. Anita PW-4 stated that she could talk to Vinita Devi only once in the hospital and she disclosed that she had been set on fire by her husband. This witness categorically denied that accused has been falsely implicated. Both mother and sister of Vinita Devi categorically stated that accused Bhagwati Prasad was harassing her for brining Rs. 20,000/- from her mother. Bhaskar alias Bhuppi (PW-2) stated that accused Bhagwati Prasad was working in the Forest Department and he was also working in the same department. He wanted some other job, therefore he requested accused Bhagwati Prasad to help him for the same. For the same purpose, he lived in the house of accused for few days. However, during his presence in their house accused Bhagwati Prasad had been giving beatings to Vinita Devi. Even during the night of 11th May 2000 he had given beatings to her. On 12.05.2000 also a quarrel took place between Bhagwati Prasad and Vinita Devi at 6:00 a.m. on account of brining money from her mother. Vinita Devi had asked this witness to call her mother; therefore, he went to the house of Vinita’s Devi mother. But later on he came to know that Vinita Devi had been burnt. 12 A perusal of the entire evidence on record, we find that prosecution is based on dying declaration (Ex. Ka-16) made by Smt. Vinita Devi before S.D.M. Alok Singh (PW-10). Learned counsel for the appellant challenged the dying declaration (Ex. Ka-16) mainly on the grounds that dying declaration is not in the question answer form and that the doctor has not given the certificate at the beginning of the alleged dying declaration made by Vinita Devi and therefore, prosecution has failed to prove that mental condition of Vinita Devi was fit to make the alleged dying declaration. Learned counsel for the appellant further argued that there is no independent evidence to corroborate the dying declaration (Ex.Ka-16). It is pointed out by the learned counsel for the appellant that as per the statements of complainant Godambari Devi , Smt. Anita mother and sister of deceased and Bhaskar alias Bhuppi, accused Bhagwati Prasad was making demand of Rs. 20,000/- but in the alleged dying declaration (Ex. Ka-16), she did not utter even a word that accused was making any such demand. Learned counsel for the appellant further pointed out that the persons who were present at the place of occurrence i.e. Aketa Verma (DW-1), Neha Dhyani (DW-5) daughter of accused stated that Vinita Devi (deceased) had put herself on fire. In view of the above arguments made by learned counsel for the appellants and the documents available on record, the short question, which arises for consideration in the present case, is whether the court below was justified in convicting the appellant by placing reliance on dying declaration (Ex. Ka-16) or not. In the present case we find that the occurrence took place in the house of accused Bhagwati Prasad and the natural witnesses at the time of the occurrence would be the family members of deceased and accused. Admittedly both the children i.e. Neha Dhyani and Ashish were present at the time of occurrence. As per the statement of Neha 13 Dhyani, her brother Ashish is older to her and at that time, he was studying in Class-II and was aged 9 years, however, Ashish has not been produced as a witness by the accused in his defence, which clearly creates doubt in the story put forward by the accused that Vinita Devi had put herself on fire and wanted to implicate the accused for the alleged incident. Moreover Neha Dhyani had admitted that she is making the statement on the asking of her grand father. She also admitted that at the time when her mother received burn injuries, her father Bhagwati Prasad as well as Aketa Verma were present which of course points out towards some different story rather than the story narrated by Aketa Verma that accused was sleeping inside the room and on hearing the shouts, he came out of the house and extinguished the fire. In such circumstances, we are not at all inclined to accept the testimony of Aketa Verma (DW-1) and Neha Dhyani (DW-5). Even the statements of Bhagwan Singh DW-4 to the effect