IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 377 of 2003. Judgment reserved on: 25.11.2011. Date of Decision: 2nd December, 2011. _______________________________________________________ Shankar Dass and another ….Appellants. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Raman Sethi, Advocate. For the respondent: Mr. P.M. Negi, Deputy Advocate General. ____________________________________________________ SURINDER SINGH, J. The appellants laid challenge to the judgment of conviction and sentence passed by the learned trial Court in Sessions Case No.10-B/VII of 2002, decided on 4.8.2003, whereby the appellants hereinafter referred as ‘the accused persons’, were sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of ` 2,000/- each for the offence punishable under Section 498-A of the Indian Penal Code and also to undergo rigorous imprisonment for a period of three years each and to pay a fine of ` 3,000/- each for the offence punishable under Section 306 of the Indian Penal Code. In default of payment of fine to further undergo simple Whether reporters of the Local papers are allowed to see the judgment? - 2 - imprisonment for six months each. Both the sentences were ordered to run concurrently. 2. In brief, the prosecution story as born out from the record can be stated thus. The accused persons are the parents of DW1 Raj Kumar. Shri Raj Kumar aforesaid was married about ten years ago from the date of alleged incident to Rekha Devi (deceased), daughter of PW4 Suti Devi and PW5 Mast Ram. (ii) DW1 Raj Kumar was an ice-cream vendor. During this marriage, the deceased gave birth to two daughters and a son. (iii) It is alleged that when she gave birth to the first daughter for about 2/3 years of their marriage the deceased and her daughter were kept nicely, but thereafter their behaviour became indifferent and started torturing and accusing her that she did not bring enough dowry. When she made complaint to her parents they consoled her not to care for such accusations, as it was a matter of routine for in-laws. (iv) After the birth of the second daughter the accused persons even stopped providing milk to the deceased on the ground that if she required milk she should bring cow from her - 3 - parents. Thus, a Jersey-cow was provided by her parents. (v) When she gave birth to a son, thinking that everything would now become normal, but the accused persons still continued ill-treating her. (vi) On 21.3.2001, Rekha deceased doused herself into kerosene-oil and set ablaze in the matrimonial home. At that time, her children had gone to the house of her parents in another village. (vii) PW13 Kamal Kishore, Pradhan of Gram Panchayat received information around 11.00 a.m. in the Panchayat office that a house was on fire in the neighbourhood. He visited the spot and saw that the house of the accused persons was on fire. Some persons had taken out Rekha who was in a burnt condition and took her to civil hospital, Baijnath in a taxi. The Medical Officer informed police, as also the Executive Magistrate. (viii) A neighbourer of the accused persons had also informed PW4 Suti Devi her mother telephonically that Rekha got burn injuries and - 4 - removed to the hospital. She also rushed to the hospital. (ix) PW14 Head Constable Milap Chand was deputed to visit hospital and to verify the facts. He alongwith lady Constable Preetan Devi reached hospital and moved application Ext.PE to the Medical Officer, whether she was fit to make statement. The doctor certified that she was fit to give statement but informed him that he had also sent for Tehsildar/ Executive Magistrate, Baijnath. (x) PW3 Shri K.D. Bhardwaj, Tehsildar-cum- Executive Magistrate reached hospital around 2.30 p.m. He noticed police, doctor of the hospital and few other ladies present near the bed of Rekha Devi. On having been asked by him, doctor informed that she was in senses and in a position to speak. Thereafter he enquired about her identity and the reasons for setting herself ablaze. On this query, she replied that she was harassed and tortured by her father-in-law and the mother-in-law. He also asked whether her husband also tortured her, but she denied. Thereafter her statement Ext.PG, i.e., dying declaration was recorded by - 5 - the Head Constable Milap Chand in his presence and she put her thumb impression to which he certified. (xi) Thereafter PW14 HC Milap Chand made endorsement on the aforesaid statement and sent it to Police Station, Baijnath for the registration of the FIR through lady Constable Preetan Devi. He also obtained Medico Legal Certificate Ext.PD. Since the condition of Rekha was not good, she was referred for further treatment to Zonal Hospital, Dharamshala. (xii) PW14 HC Milap Chand visited the spot and took the photographs Ext.PW11/1 to 3 and also took into possession charred bamboo stick Ext.P1 and broken bangle Ext.P2 vide memo Ext.PW13/A in the presence of PW13 Kamal Kishore and Jagat Ram. The site plan Ext.PW14/B of the spot was also prepared by him. (xiii) The condition of Rekha started deteriorating. She could not be saved, as such died on 22.3.2001 while she was under treatment. - 6 - (xiv) Police made a request for autopsy vide Ext.PA, which was accompanied by the inquest papers Ext.PB. (xv) PW1 Dr. D.P.Swami, Assistant Professor, Forensic Medicines posted in Dr. RPGMC, Tanda conducted the postmortem of the dead body. He noticed ante-mortem superficial burn 87% +- 5% all over the body except scalp hair with kerosene smell and both lower half front legs and feet-area of burn were reddish all over with red margins at places. All the vital organs were found congested. In the opinion of the doctor, the deceased had died due to asphyxia and hypovolumic shock due to ante-mortem superficial burns referred to above. Time which lapsed between the injury and death was half to two days and between death and postmortem was 6 to 12 hours. The postmortem report is Ext.PC. (xvi) The accused persons were arrested. Later both were enlarged on bail. 3. After completing investigation, the Challan against the accused persons was presented in the Court for their trial. They were charge-sheeted and tried. Their - 7 - statements under Section 313 of the Code of Criminal Procedure were recorded. They denied the circumstances which were found attendant upon them. When they were called to enter into their defence, they examined DW1 Raj Kumar, husband of the deceased. He stated that his parents were in the house on the said date alongwith the deceased and he had gone to the house of his in-laws to bring back his children, who were there for the last about 4/5 days. He further stated that his wife used to feel angry on petty matters. His parents never ill-treated her. She was kept properly. When he reached in the house of his in- laws, he received a message that his wife had committed suicide by setting herself ablaze. Immediately he alongwith his parents rushed to the hospital at Baijnath. She was in a critical condition. When he tried to speak, she did not reply, but only murmured. The Pradhan of the Panchayat was also present in the hospital. He further stated that his mother told him that her hands got burnt while extinguishing fire, but did not say that in fact he had also seen the burn injury in her hands. Rather it proves that his mother at that time was present at home. 4. The learned trial Court disbelieved the version of the accused persons but while relying upon the dying declaration, convicted and sentenced the accused persons as aforesaid. Hence, the present appeal. - 8 - 5. Shri Raman Sethi, learned Counsel for the accused persons vehemently argued that before recording the statement before PW3 Shri K.D. Bhardwaj the deceased was surrounded by her parents and near relatives, thus the possibility of influencing her, to make the statement against the accused persons cannot be ruled out. He further pointed out that the deceased was brought to the hospital at 12.05 p.m. by some persons with the alleged history of trifle in the family for the last 1½ months as mentioned in her MLC Ext.PD. She was stated to be in agony and crying with pain as indicated therein and her condition was deteriorating. PW14 HC Millap Chand after moving the application did nothing but waited for PW3 Shri K.D. Bhardwaj, Tehsildar, who reached around 2.30 p.m. By that time, the condition of deceased further deteriorated and was not in a position to make any statement, as such Ext.PG cannot be relied upon. He further made a reference to MLC wherein the doctor has made the reference that according to the deceased there has been trifle in the family for the last about 1½ months and they told to kill herself, so in distress she sprinkled the kerosene oil and got burn injuries around 11.30 a.m. The learned Counsel further argued that there is inconsistency between both the dying declarations, thus no reliance can be put on either of them to prove the - 9 - charge against the accused persons. He also ventilated that the evidence with respect to bringing less dowry is attributed to the year 1993 and there is no allegation that thereafter the accused persons had raised demand or that she was ill-treated for not meeting said demand. He also argued that it has come in evidence that the deceased was of a very sensitive/aggressive nature and might have decided to put her life to an end without any abetment from the accused persons. To substantiate his arguments, he relied upon Mehiboobsab Abbasabi Nasdaf v. State of Karnataka, (2007) 13 SCC 112, Vallabhaneni Venkateshwara Rao v. State of Andhra Pradesh (2009) 6 SCC 484 and C. Magesh and others v. State of Karnataka (2010) 5 SCC 645. 6. Contra, Shri P.M. Negi, learned Deputy Advocate General taking a cue from the MLC (Ext.PD), submitted that everything was not going well in the family of the accused persons and it is evident therefrom that the deceased was being maltreated for the last about 1½ months and the accused persons told her to kill herself. These facts as recorded are enough to prove the charge. He also ventilated that on the day of the alleged incident the deceased was in the company of the accused persons so it was for the accused persons to explain as to what had actually happened on that day. According to - 10 - him, the story put in defence that in a bid to put-off the fire, the hands of her mother-in-law also got burnt is blatantly false and could not be probablised. Even if it is presumed to have been proved, is not enough to dislodge the other reliable evidence on record. They in- fact owe explanation as to what had happened to the deceased, but their case in their statements under Section 313 of the Code of Criminal Procedure is denial simplicitor. He also submitted that the dying declaration was recorded by PW14 HC Milap Chand in the presence of PW3 K.D. Bhardwaj, Tehsildar-cum-Executive Magistrate as per the version given by the deceased by putting questions to her. The learned Deputy Advocate General submitted that there are no contradictions, inconsistencies, exaggerations and embellishments either in the statements of the prosecution witnesses or in the dying declaration both are consistent. Therefore, the conviction of the accused persons cannot be faulted with. 7. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously and scanned the evidence on record. 8. In fact, the case of the prosecution hinges upon the statements of the parents and brother of the deceased, as well as the dying declarations made by the deceased. - 11 - 9. PW4 Suti Devi and PW5 Mast Ram, the parents of the deceased stated that Rekha Devi (deceased) was the youngest daughter, married to DW1 Raj Kumar. They are categorical in their depositions that after giving birth to the daughters, the behaviour of the accused persons became indifferent towards her. Even they had also provided a cow after the birth of second daughter to them on the asking of the deceased. The accused persons had shown some improvement on the birth of the son, but they had been torturing on dowry demand and she had been making complaints to them whenever she visited their house. But according to their own capacity they had been providing some household articles to her. With respect to the dowry demand, they did not report this matter anywhere because of fear that may escalate her torture. PW6 Jagan Nath, the brother of the deceased, afforded corroboration to their statements. 10. PW4 Suti Devi stated that the accused persons had set her on fire and in her cross-examination she stated that she made report to the police that her daughter was set on fire by the accused, but when confronted with it, it was not so recorded. Further, PW5 Mast Ram in his cross- examination denied that Rekha Devi used to mind even the small matters and also that she was of highly sensitive - 12 - nature, but no such instances were put to any of the witnesses. 11. On the scrutiny of the above evidence two important circumstances have appeared on record. First is that the accused persons, at the time of alleged occurrence were present in the house they did not raise any hue and cry nor reported the matter to the Pradhan. But the Pradhan otherwise came to know about the incident from another source and reached on the spot. The co-villagers had removed the deceased in a charred condition and took her to the hospital. Secondly, within an hour of the said incident she was in the hospital and made the statement to the doctor that for the last about 1½ months there has been a trifle between her and the accused persons, as mentioned in the MLC and the accused told her to finish herself, to which she did, which necessitated the doctor to inform the Executive Magistrate for recording her statement. When PW14 HC Milap Chand reached hospital, he moved application to know whether the deceased was fit to give her statement. The doctor opined that she was fit to make the statement (Ext.PF) and simultaneously handed over her MLC Ext.PD to the police. The Head Constable aforesaid was also informed about the arrival of the Executive Magistrate by the doctor who reached around 2.30 p.m. When PW3 K.D. Bhardwaj, - 13 - Tehsildar/Executive Magistrate reached the hospital, Doctor was also present near the deceased. He noticed that Rekha was extensively burnt and crying in pain. Her relations from the parent’s-side had reached prior to his arrival, but according to him they neither told nor did he enquire anything from them with respect to the mental condition of the deceased. The doctor on being asked by PW14 aforesaid informed that she was in senses and was in a position to speak. He also ascertained the identity of the deceased and asked the reason for committing suicide. She stated that she was harassed and tortured by the father-in-law and the mother-in-law, i.e., the accused persons and she herself poured kerosene oil on her and set ablaze. He also testified that he put the question to her whether her husband also tortured her, but she denied. He further stated that the statement of Rekha was recorded by the Head Constable in his presence, thereafter he appended the certificate in his own hand and signatures to the effect that the statement Ext.PG was read over and accepted by her. In cross-examination he stated that Rekha gave the statement in Hindi and denied that the statement Ext. PG was already written prior to his reaching in the hospital, but admitted that she was crying in pain. He further stated that he did not ask the doctor to certify the statement. This witness (PW3) has no axe to grind nor - 14 - any allegation of bias has been imputed to him. He visited hospital in his official capacity and discharged his duty after satisfying himself about manner in which the incident took place, on enquiry from the deceased. He also certified statement Ext. PG in his own hand and under his signature. He categorically stated that she told him that her husband never ill-treated or tortured her, rather she pertinently imputed the allegations of torture proximate to the time of incident against the accused persons. Further there is no cross-examination of PW2 doctor Rakesh Kumar on the point that she was not in a fit state to make the statement, rather he admitted his as well as the presence of the Executive Magistrate in the hospital when her statement was recorded. He further stated that he had only given the injection of decadron which does not affect the mental condition of the patient. He denied that the patient while crying and withering under pain cannot be mentally alert. He also denied that the alleged history of the patient about the cause of suicide was inserted later in the MLC. 12. As already stated supra, no instances have been brought in the cross-examination of the prosecution witnesses that the deceased was in the depression or was of a sensitive nature. The suggestions put were denied by them. Even the fact of sensitive/aggressive nature of the - 15 - deceased was not explained by the accused persons in their statements under Section 313 of the Code of Criminal Procedure nor could the defence be probablised. The accused persons happened to be present in the house at the time of alleged incident. They are expected to tender explanation as to what had happened, to which they failed to explain. 13. Further I do not find any inconsistency in the dying declaration Ext. PG and the reference in MLC Ex.PD, with respect to the cause stated therein which led to self immolation. The evidence qua cruelty is further corroborated by the oral evidence of the aforesaid witnesses. Even otherwise, once the dying declaration is held to be above board, it alone can be made sole ground for conviction. In fact, the offence of cruelty and abetment to commit suicide, both stand proved by Ext. PG and the MLC Ext. PD, therefore, I do not find any error in the impugned judgment of conviction of the accused persons. The above judgments relied upon by the learned counsel for the accused are not applicable at all in this fact situation to hold the dying declaration doubtful. 14. Confronted with the above situation, the learned counsel for the accused persons submitted that both the accused persons are in extreme advanced ages around 80 years and suffering from old-age diseases. It would be - 16 - a travesty of justice in case they are committed to prison. Therefore, the leniency may be shown in the matter of sentence, whereas, learned Deputy Advocate General submitted that appropriate sentence as deemed fit in the matter may be passed. 15. Keeping in view the proved facts on record, it is not a case where too much leniency can be shown to the convicts. A valuable life, because of the fault and insensitivity of the accused persons, who are elderly persons, has vanished from this planet. Had they shown some sympathy to her and tackled the situation in a wise- manner, her God blessed life could have been saved. For the offences like this, the substantive sentence is a must, so that, it serve deterrence and a right message percolates down to the society. Considering the entire spectrum of case and the plea of leniency raised on behalf of the accused persons and their ages, the ends of justice would be met in case the substantive sentence as passed by the learned trial Court is reduced to simple imprisonment for a period of one month each without disturbing the fine. Further the default clause is also modified to the extent that in case the fine amount is not deposited, each of the convicts shall further undergo simple imprisonment for 15 days. - 17 - 16. The appeal sans merit and is accordingly dismissed with the above modification in sentence. 17. The accused persons are directed to surrender before the learned trial Court on December 30, 2011, for serving out the sentence aforesaid, failing which the learned trial Court is directed to take coercive steps to commit the convicts to prison, in terms of this judgment. 18. Send down the records forthwith so as to reach the learned trial Court before the date fixed. December 2, 2011. (Surinder Singh), (rc) Judge.